text:
    Priscilla Schoen SORK v. John Arthur SORK, Michael Lee Sork, Richard Joseph Sork and Michelle Constance Sork
    2017 CA 0300
    Court of Appeal of Louisiana, First Circuit.
    DATE OF JUDGMENT: FEBRUARY 09, 2018
    Wiley J. Beevers, Shayna Beevers Morvant, Steven M. Mauterer, Gretna, Louisiana, Counsel for Plaintiff-Appellee Priscilla Schoen Sork
    James Patrick DeSonier, Patricia Regan Fox, Mandeville, Louisiana, Counsel for Defendants-Appellants Richard Joseph Sork and Michelle Constance Sork Ryan
    BEFORE: WHIPPLE, C.J., PETTIGREW, McDONALD, McCLENDON, AND CHUTZ, JJ.
   CHUTZ, J.

Defendants-appellants, Richard Joseph Sork and Michelle Constance Sork Ryan, appeal the trial court's default judgment awarding to their step-mother, plaintiff-appellee, Priscilla Schoen Sork, one-half of monthly mortgage payments she made on a loan secured by immovable property that they and their siblings own in indivision with her as well as one-half of her repair and maintenance expenses for the immovable property. For the following reasons, we reverse in part and affirm as amended in part.

FACTUAL AND PROCEDURAL BACKGROUND

Priscilla, as the surviving spouse of defendants' father, William Joseph Sork, rejected, renounced, and disclaimed the "usufruct for life or remarriage" in 2009. According to the terms of the judgment of possession, in lieu of the usufruct, the parties agreed that 50% ownership of the home located at 19399 S. Fitzmorris Road in Covington, Louisiana was vested in Priscilla; and the other 50% ownership was vested in William's four adult children, with each sibling receiving 12.5% of the ownership of the home. The judgment of possession stated that Priscilla personally assumed liability of one-half of the remaining mortgage balance and that the four Sork siblings assumed the remaining one-half of the mortgage balance jointly.

On June 13, 2016, Priscilla filed a petition for reimbursement and for specific performance naming each of the four Sork siblings as defendants. In the petition, Priscilla averred that she had made all the mortgage payments without reimbursement. She also alleged that she had paid all the expenses for repairs and maintenance of the home without any reimbursement.

On August 26, 2016, acknowledging that the petition had been served on only Richard and Michelle, Priscilla moved for a preliminary default judgment against the two of them. On September 12, 2016, the trial court ordered entry of the preliminary default in the minutes of court.

Priscilla filed a motion to confirm the preliminary default against Richard and Michelle on September 15, 2016. Therein, she averred that she had paid a total of $70,566.31 in mortgage payments and $32,392.45 for maintenance and necessary repairs to the property. After a hearing on October 20, 2016, the trial court confirmed the preliminary default and signed a judgment, which concluded that Richard and Michelle were responsible for one-half of the total reimbursement due for mortgage payments and one-half of all necessary repairs and maintenance for the home. Richard and Michelle were ordered to pay to Priscilla the sum of $35,283.15, which represented one-half of the total mortgage payments of $70,566.31. They were also ordered to pay to Priscilla the amount of $16,196.22, which was one-half of her total maintenance and repair expenditures of $32,392.45. Richard and Michelle were ordered to pay judicial interest on the amounts owed to Priscilla as well as attorney fees in the amount of $7,500.00. Richard and Michelle appeal.

DISCUSSION

When a default judgment is before a court of appeal, our review is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. That determination is a factual one governed by the manifest error standard of review. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding but must determine from a review of the record in its entirety whether the trial court's finding was clearly wrong or manifestly erroneous. Whitney Bank v. NOGG, L.L.C., 2015-1399 (La. App. 1st Cir. 6/3/16), 194 So.3d 819, 822-23.

Confirmation of a preliminary default is similar to a trial and requires, with admissible evidence, proof of the demand sufficient to establish a prima facie case. The elements of a prima facie case are established with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. Environmental Safety and Health Consulting Services, Inc. v. Reynolds Nationwide, Inc., 2014-0787 (La. App. 1st Cir. 12/23/14), 168 So.3d 593, 594.

Open Account

Priscilla claims that the sums due constituted an open account and, therefore, under La. C.C.P. art. 1702B(3), her affidavit of correctness was prima facie proof sufficient to support the confirmation of the preliminary default. We disagree.

La. R.S. 9:2781(D) provides that an open account "includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions." An open account necessarily involves an underlying agreement between the parties on which the debt is based. Gulfstream Services, Inc. v. Hot Energy Services, Inc., 2004-1223 (La. App. 1st Cir. 3/24/05), 907 So.2d 96, 100, writ denied, 2005-1064 (La. 6/17/05), 904 So.2d 706.

Nothing in the evidence Priscilla offered in support of her entitlement to a default judgment established the intent or agreement by the parties to extend credit or create an open account for either one-half of the mortgage payments she made or for one-half of the expenses she incurred in repairs and maintenance to the house. Accordingly, lacking any evidence to support a finding of the existence of an open account between the parties, the trial court's award of attorney fees in the amount of $7,500.00, which was based solely on La. R.S. 9:2781, is reversed.

Lacking evidence of an open account, Priscilla could not rely on La. C.C.P. art. 1702B(3) to establish a prima facie case of entitlement to relief. As such, Priscilla's claims are based on conventional obligations. Therefore, in accordance with the provisions of La. C.C.P. art. 1702B(1), Priscilla was required to submit affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case.

One-half of the Mortgage Payments

Annexed to Priscilla's motion for a preliminary default were the judgment of possession and copies of her receipts for payments on the mortgage loan, totaling $70,566.31. It is undisputed and the judgment of possession establishes that Priscilla was responsible for only one-half of the mortgage loan payments and that the other one-half of the mortgage loan payments were the responsibility of the four Sork siblings.

In her affidavit of correctness, Priscilla attested that she had expended $70,566.31 for the mortgage without reimbursement from any of the four Sork siblings. And close scrutiny of the judgment of possession alongside with the mortgage payment receipts, each of which states "Payment-Mortgage," shows that the account numbers match. Given that under the terms of the judgment of possession Priscilla assumed liability for one-half the mortgage balance and the four Sork siblings jointly assumed liability for the other one-half, Priscilla established she was entitled to reimbursement for the amounts she paid toward the mortgage.

On appeal, Richard and Michelle maintain the trial court erred in concluding they were liable for $35,283.15, i.e., the entire one-half of the reimbursement owed to Priscilla by all four of the Sork siblings. They urge that the judgment of possession fails to establish that the four siblings agreed to be solidarily liable for the mortgage balance. As such, Richard and Michelle contend they are only liable for their virile share.

When there is more than one obligor named in the same contract, the obligation it produces may be either joint or solidary. La. C.C. art. 1786. When several persons join in the same contract to do the same thing, it produces a joint obligation on the part of the obligors. La. C.C. art. 1788. An obligation is solidary for the obligors only when each obligor is liable for the whole performance. See La. C.C. art. 1794. The solidarity of an obligation is not presumed; a solidary obligation arises from the clear expression of the parties' intent or from the law. La. C.C. art. 1796.

Priscilla has not averred that the four Sork siblings are solidarily liable by imposition of law. Instead, she relies on the judgment of possession to establish her right to reimbursement for the mortgage payments she made. After naming each Sork sibling individually, the judgment of possession states that they "assume the remaining one half of the mortgage balance jointly ." (Emphasis added.) Priscilla offered nothing to establish a clear expression of an intent by the four Sork siblings to be solidarily liable for their collective one-half of the mortgage balance. Thus, she failed to prove a solidary obligation existed between the four siblings. As such, the obligation between the Sork siblings is a joint one, and the liability of each is limited to his/her virile share. See Hardy v. Whitney , 480 So.2d 766, 771 (La. 3d Cir. App. 1985) (relying on Johnson v. Jones-Journet, 320 So.2d 533, 536 (La. 1975) ); see also Gavin v. Superior Applicators, Inc., 484 So.2d 792, 794-95 (La. App. 1st Cir.), writ denied, 487 So.2d 439 (La. 1986) (promissory note signed by multiple makers which recited that "I (We) promise to pay" created joint, rather than solidary, liability on part of makers, each of whom was responsible only for his virile share). Therefore, we amend the judgment to order Richard and Michelle to each pay one-fourth of $35,283.15, or $8,820.79 each, to Priscilla.

Reimbursement for One-Half of the Repairs and Maintenance

Richard and Michelle challenge the trial court's determination that Priscilla was entitled to an award of $16,196.22 for one-half of the expenses she expended on repairs and maintenance of the home. They contend that any award for necessary repairs should have been offset by the value of Priscilla's use of the home. They also suggest that some of the receipts that Priscilla offered in support of her claim were not for necessary repairs and should not have been subject to reimbursement.

The use and management of the thing held in indivision are determined by agreement of all the co-owners. La. C.C. art. 801. Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivision according to its destination, but he cannot prevent another co-owner from making such use of it. La. C.C. art. 802. A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares. If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment. La. C.C. art. 806. A co-owner in exclusive possession may be liable for rent, but only beginning on the date another co-owner has demanded occupancy and has been refused. McCarroll v. McCarroll , 96-2700 (La. 10/21/97), 701 So.2d 1280, 1290.

Pretermiting a discussion on whether the record supports a finding that Priscilla had the enjoyment of the home, there is nothing to support a finding that Richard, Michelle, or their other two siblings demanded occupancy of the home and was refused by Priscilla. Therefore, the trial court did not err in failing to reduce the amount of reimbursement that the Sork siblings owed for necessary repairs and maintenance that Priscilla made to the home by any use she may have enjoyed.

Richard and Michelle assert that the installation of granite countertops, a reconfigured entry/new door, repainting, new carpeting, and new shutters were not shown to have been necessary expenses such that as co-owners they are required to reimburse Priscilla.

According to the 1990 Revision Comment (b) of Article 806, the definition of necessary expenses and their distinction from useful and luxurious expenses are expressed in La. C.C. arts. 527 and 528. Under Article 527, "necessary expenses" include those that are "incurred for the preservation of the thing." As explained in Comment (b) to Article 528, "useful expenses" are those that result in an enhancement of value, but are not needed for the preservation of the property. Article 806 expressly permits a co-owner reimbursement for the "necessary expenses." But unlike Article 528, Article 806 does not provide for reimbursement of "useful expenses," instead allowing a co-owner reimbursement of "expenses for ordinary maintenance and repairs" in addition to her necessary expenses.

In establishing her prima facie case, Priscilla offered no explanation, either by way of affidavit or testimony, of why she chose to install the granite countertops, reconfigure the entry/doorway, repaint, or procure new carpeting and new shutters. And she produced nothing to establish either the condition or the age of any of these items. She simply attested that she had incurred expenses in repairs and maintenance and attached copies of the receipts demonstrating the amounts "expended ... for necessary repairs to the home."

Of the expenses awarded to Priscilla in the default judgment that Richard and Michelle have challenged, none appear to be clearly and obviously for the preservation of the home. Thus, they cannot be necessary expenses. And without a basis to establish a need for replacement, the quality of the item replaced, or its age, the record is devoid of any evidence to permit an inference that these expenses were usual or routine such that they may be called ordinary. Accordingly, we conclude that the record lacks sufficient evidence to support reimbursement for these expenses.

The trial court awarded expenses totaling $32,392.45. The invoices attached to Priscilla's affidavit show that she expended a total of $23,182.69 on the expenses Richard and Michelle challenge as not reimbursable under Article 806. Therefore, the total amount of expenditures for which Priscilla offered sufficient evidence of necessary expenses as well as for expenses for ordinary maintenance and repairs was $9,209.76.

Under Article 806, Richard and Michelle owe Priscilla reimbursement "in proportion to their shares." Under the terms of ownership set forth in the judgment of possession, as one-half owner of the home, Priscilla is responsible for 50% of $9,206.76, or $4,603.38, of the proven expenses, and Richard and Michelle, who each have a 12.5% interest in the home, are each responsible for $1,150.84. Accordingly, the trial court's default judgment is amended to order Richard and Michelle to respectively reimburse to Priscilla the amount of $1,150.84 each.

DECREE

For these reasons, the portion of the default judgment, which awards attorney fees in the amount of $7,500.00, is reversed. That portion of the default judgment, which orders Richard and Michelle to reimburse Priscilla "one-half ... of the mortgage payments currently made" in the amount of $35,283.15, is amended to order Richard to pay to Priscilla the amount of $8,820.79 and Michelle to pay to Priscilla the amount of $8,820.79, i.e., their respective virile shares, for reimbursement of the mortgage payments she made on the home. That portion of the default judgment, which orders Richard and Michelle to reimburse Priscilla the amount of $16,196.22, is amended to order: Richard to pay to Priscilla the amount of $1,150.84 and Michelle to pay to Priscilla the amount of $1,150.84. In all other respects, the default judgment is affirmed. Appeal costs are assessed one-half against plaintiff-appellee, Priscilla Schoen Sork and one-half against defendants-appellants, Richard Sork and Michelle Sork.

REVERSED IN PART; AMENDED AND, AS AMENDED, AFFIRMED IN PART.

Whipple, C.J., dissents in part for reasons assigned.

WHIPPLE, C.J., dissenting in part.

To the extent that the majority opinion determines that the Sork siblings' liability for one-half of the mortgage balance is limited by the judgment in the underlying succession proceeding to a virile share, I respectfully dissent in part, as I would affirm the trial court's finding that the Sork siblings are solidarity liable.

In this case, the judgment of possession setting forth and memorializing the parties' respective rights and obligations expressly states that the Sork siblings "assume the remaining one-half of the mortgage balance jointly ." (Emphasis added.) Thus, as previously agreed to by the parties in the judgment, the obligation between the four Sork siblings is a joint one. To determine the effect of a joint obligation on the obligors, the inquiry is whether the joint obligation is divisible or indivisible. If a joint obligation is divisible, neither obligor is bound for the whole performance; rather, each joint obligor is bound to perform only his portion. LSA-C.C art. 1789. However, on the other hand, if the joint obligation is indivisible, the joint obligors are subject to the rules governing solidary obligors. LSA-C.C, art. 1789. Thus, as here, where the obligation is an indivisible obligation, the obligee, at her choice, may demand the whole performance from any of the joint and indivisible obligors. See LSA-C.C. art. 1795 ; Berlier v. A.P. Green Industries, Inc., 2001-1530 (La. 4/3/02), 815 So.2d 39, 47. Moreover, an obligation is divisible when the object of the performance is susceptible of division, and an obligation is indivisible when the object of the performance, because of its nature or the intent of the parties, is not susceptible of division. LSA-C.C, art. 1815.

By concluding that Richard and Michelle were liable for $35,283.15, i.e., the one-half owed to Priscilla as reimbursement for payment due and assumed by all four of the Sork siblings jointly, the trial court implicitly found that the joint obligation to reimburse Priscilla was indivisible. Because the judgment of possession states that Priscilla assumed "one-half" the mortgage balance and that Richard and Michelle, along with their two brothers, John, and Michael, (with each Sork identified individually) assumed "the remaining one-half of the mortgage balance jointly," the trial court correctly interpreted the judgment in accordance with the parties' intent and stipulation that the parties intended that the obligation between the Sork siblings was owed jointly by them and was indivisible. Had the parties intended that their assumption of the mortgage obligation was to be divisible, the judgment of possession in the underlying succession suit could easily have so stated and specified that Richard assumed 12.5%, Michelle assumed 12.5%, John assumed 12.5%, and Michael assumed 12.5% of the remaining one-half of the mortgage balance, but did not do so (as was stated in the judgment with the expression of each Sork's respective ownership interest ). See Berlier v. A.P. Green Industries, Inc., 815 So.2d at 47 ("[I]f the parties had intended for the obligation to be divisible, then one would reasonably suspect that they would have determined each defendant's pro rata portion, and each defendant would be bound for a sum certain"). Thus, because, under the succession judgment, the obligation was assumed jointly, Priscilla had the right to demand the whole performance from any of the joint and indivisible obligors, see LSA-C.C. art. 1795. In my view, considering the terms of the judgment in the succession proceeding which Priscilla sought to enforce, the trial court correctly ordered Richard and Michelle to pay Priscilla the amount of $35,283.15, representing the reimbursement due her for their half of the total mortgage payments she has made on the house.

In sum, on the record before us, and considering the language used in the judgment of possession as agreed upon by the parties, I find no legal error or abuse of discretion in the trial court's determination of these defendants' liability. As recognized in Berlier v. A.P. Green Industries, Inc., 815 So.2d at 47, "Although money, by its nature, is divisible, LSA-C.C. art. 1815 provides that an object can also be indivisible because the parties so intended. Thus, even where an object by its nature may be rendered in partes (such as a lump sum settlement for $450,000.00), it must be performed as a whole where it is indivisible because of the parties' intent." (Citing Saul Litvinoff, The Law of Obligations in the Louisiana Jurisprudence 599 (1979) ).

Accordingly, I respectfully dissent in part.

      Although the original judgment of possession was subsequently amended, the modification did not change any of the terms of the parties' agreement insofar as Priscilla's renunciation of the usufruct. Therefore, throughout the opinion, we refer to both the original and the amended judgments of possession collectively as "the judgment of possession."

      Priscilla also received $20,000.00 in cash and a vehicle, and the Sork siblings received additional immovable property, a utility trailer, and all of the other property belonging to William.

      The judgment of possession referenced "Chase" as the mortgagee of the mortgage balance that the parties assumed. Other evidence further identified the mortgagee as "JP Morgan Chase Bank, N.A."

      La. C.C.P. art. 1702B(3) states in relevant part, "When the sum due is on an open account..., an affidavit of the correctness thereof shall be prima facie proof. "

      La. C.C.P. art. 1702B(1) states:
      When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering a final default judgment.

      The judgment of possession sets forth the entire account number and the mortgage payment receipts show the last four digits of the account number.

      The expense of: installing the granite countertops was $4,291.65; reconfiguring the entryway/doorway was $2,800.00 and $1,500.00; repainting the living room and kitchen (walls and trim) was $2,000.00; new carpeting was $2,115.04; and new shutters was $10,476.00 for a total of $23,182.69.

      Because Priscilla failed to show that she had an open account with the Sork siblings, she has not proven that she is entitled to judicial interest prior to June 13, 2016, the date of judicial demand.


source: Caselaw Access Project

author: McDONALD, J.

license: Public Domain

text:
    STATE of Louisiana v. A.R.W.
    2017 CA 1162
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: FEBRUARY 16, 2018 Rehearing Denied March 2, 2018 Rehearing Denied April 5, 2018
    Warren L. Montgomery, District Attorney, Matthew Caplan, Assistant District Attorney, Covington, Louisiana, Attorneys for Appellant State of Louisiana
    Michael L. Capdeboscq, Covington, Louisiana, Attorney for Appellee A.R.W.
    BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
   McDONALD, J.

In this case, the St. Tammany Parish District Attorney's Office appeals the district court's grant of an expungement of a conviction for possession of a Schedule 1 controlled dangerous substance (synthetic marijuana) with the intent to distribute, a violation of La. R.S. 40:966A(1), asserting that an expungement was not allowed for that conviction under the facts of this case. After review, we affirm the district court judgment.

FACTS AND PROCEDURAL HISTORY

On September 27, 2011, A.R.W. was charged by felony bill of information with supervision of transactions involving the transfer of drug proceeds in violation of La. R.S. 40:1041C (Count 1), and possession of a Schedule 1 controlled dangerous substance (synthetic marijuana) with the intent to distribute in violation of La. R.S. 40:966A(1) (Count 2). A.R.W. pled guilty to both counts on September 6, 2012. On each count she was sentenced to three years in the Department of Corrections, the sentence was suspended, and she was placed on active, supervised probation for five years, with the two sentences running concurrently. Further, she was fined $1,000.00, required to pay court costs, undergo random drug screens at her own expense, pay a $65.00 monthly supervision fee, and comply with the general requirements of probation. Her plea was accepted by the district court pursuant to La. C.Cr.P. art. 881.1, with the minutes held open until the conclusion of probation.

On September 18, 2013, the Louisiana Department of Public Safety and Corrections (the Department) filed a petition for cause, presenting an official report on the conduct and attitude of A.R.W., stating that she had satisfied all of the conditions of probation and was currently enrolled in college. The Department asked that A.R.W.'s probation be terminated early and satisfactorily in accordance with Probation and Parole Supervision Policy 623. On September 25, 2013, after considering the report from the Department, the district court ordered that after payment of fines, costs, and restitution, A.R.W.'s probation be terminated early and satisfactorily, in accordance with Probation and Parole Supervision Policy 623.

On April 1, 2014, A.R.W. filed a La. C.Cr.P. article 881.1 motion for resentencing pursuant to La. C.Cr.P. art. 893. On July 3, 2014, the district court granted the motion for resentencing under La. C.C.P. art 881 pursuant to C.Cr.P. art. 893.

Thereafter, on November 2, 2016, A.R.W. filed a motion to set aside her conviction and dismiss the prosecution for the charge of supervision of transactions involving the transfer of drug proceeds in violation of La. R.S. 40:1041C, and the charge of possession of a Schedule 1 controlled dangerous substance (synthetic marijuana) with the intent to distribute in violation of La. R.S. 40:966A(1).

On November 7, 2016, the District Attorney's Office filed an opposition to A.R.W.'s motion to set aside her conviction and dismiss the prosecution only as to the conviction for possession of a Schedule 1 controlled dangerous substance (synthetic marijuana) with the intent to distribute in violation of La. R.S. 40:966A(1). The District Attorney's office maintained that pursuant to La. C.Cr.P. art. 893E(l)(b) and (3)(a), she was ineligible for a La. C.Cr.P. art. 893 dismissal of that conviction without successful completion of Drug Court and the concurrence of their office, but that she had not been given Drug Court as a condition of probation. The District Attorney's Office had no opposition to A.R.W.'s motion as to the conviction for supervision of transactions involving the transfer of drug proceeds in violation of La. R.S. 40:1041C.

A.R.W.'s motion to set aside the conviction and dismiss the prosecution was heard on November 19, 2017, and the motion was granted. Thereafter, on November 24, 2017, the district court signed a judgment setting aside the conviction and dismissing the prosecution for purposes of expungement.

On January 30, 2017, A.R.W. filed a motion for expungement. She asked for expungement of three items: the record of her arrest on July 29, 2011 for possession of drug paraphernalia in violation of La. R.S. 40:1023, which did not result in a conviction (the charge was dismissed); her conviction for possession with intent to distribute Schedule 1 drugs in violation of La. R.S. 40:966A(1) which had been dismissed; and her conviction for transactions involving drug proceeds in violation of La. R.S. 40:1041C.

The District Attorney's Office filed a response opposing only A.R.W.'s motion for expungement as to Count 2, asserting that because A.R.W. had pled guilty to possession with intent to distribute synthetic marijuana, pursuant to La. C.Cr.R art. 893E(1)(b) and (3)(a), she was ineligible for an Article 893 dismissal without successful completion of Drug Court and the concurrence of their office. The District Attorney's Office asserted that Drug Court was not a condition of A.R.W.'s probation, thus she had not met all of the requirements for an expungement. The matter was set for a contradictory hearing.

Following the hearing, the district court granted A.R.W.'s motion for expungement. The District Attorney's Office has appealed.

ANALYSIS

On appeal, the District Attorney's Office asserts that the district court erred in granting the motion to expunge the conviction for possession with intent to distribute a controlled dangerous substance because the expungement was not authorized by law.

Expungement is defined to mean removal of a record from public access, but it does not mean destruction of the record. An expunged record is confidential but remains available for use by law enforcement agencies and other specified persons and agencies. State v. Taylor, 2011-0373 (La. App. 1 Cir. 3/23/12), 91 So.3d 1065, 1070. Expungement matters are reviewed by this court under its civil appellate jurisdiction. State v. Flynn, 2017-0485 (La. App. 1 Cir. 6/16/17) (unpublished writ action).

Louisiana Code of Criminal Procedure article 881.1 provides in part:

A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
* * * * *
(4) In cases when a defendant has successfully completed probation pursuant to the provisions of Code of Criminal Procedure Article 895(B)(3), the defendant may file a motion to reconsider the sentence for the purpose of determining whether the sentence should be set aside and the prosecution dismissed pursuant to the provisions of Code of Criminal Procedure Article 893. Such motion shall be filed within two years of the date of successful completion of the probation imposed by the court. If the court finds that the defendant is eligible for the benefits of Code of Criminal Procedure Article 893(E), then the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution in accordance with law.
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.

Louisiana Code of Criminal Procedure article 893 provides in part:

A. (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court, after a first, second, or third conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole. The court shall not suspend the sentence of a second or third conviction of R.S. 14:73.5. Except as provided in Paragraph G of this Article, the period of probation shall be specified and shall not be more than three years.
* * * * *
E. (1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the
imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as a crime of violence pursuant to Article 890.3 or that is defined as a sex offense by R.S. 15:541, involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
(3)(a) When a case is accepted into a drug court division probation program pursuant to the provisions of R.S. 13:5304 and at the conclusion of the probationary period the court finds that the defendant has successfully completed all conditions of probation, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses.
(b) The court may extend the provisions of this Paragraph to any person who has previously successfully completed a drug court program and satisfactorily completed all other conditions of probation.
(c) Dismissal under this Paragraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of the Code of Criminal Procedure and may occur only once with respect to any person.
(4) When a defendant, who has been committed to the custody of the Department of Public Safety and Corrections to serve a sentence in the intensive incarceration program pursuant to the provisions of Article 895(B)(3), has successfully completed the intensive incarceration program as well as successfully completed all other conditions of parole or probation, and if the defendant is otherwise
eligible, the court with the concurrence of the district attorney may set aside the conviction and dismiss prosecution, whether the defendant's sentence was suspended under Paragraph A of this Article or deferred under Subparagraph (1) of this Paragraph. The dismissal of prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Subparagraph shall have the same effect as an acquittal for purposes of expungement under the provisions of Title XXXIV of the Code of Criminal Procedure and may occur only once with respect to any person.

The provisions pertaining to expungement are found at La. C.Cr.P. art. 978 and provide in part:

A. Except as provided in Paragraph B of this Article, a person may file a motion to expunge his record of arrest and conviction of a felony offense if either of the following apply:
(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 893(E).
(2) More than ten years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole based on the felony conviction, and the person has not been convicted of any other criminal offense during the ten-year period, and has no criminal charge pending against him. The motion filed pursuant to this Subparagraph shall include a certification obtained from the district attorney which verifies that, to his knowledge, the applicant has no convictions during the ten-year period and no pending charges under a bill of information or indictment.
B. No expungement shall be granted nor shall a person be permitted to file a motion to expunge the record of arrest and conviction of a felony offense if the person was convicted of the commission or attempted commission of any of the following offenses:
* * * *
(3) A violation of the Uniform Controlled Dangerous Substances Law, except for any of the following which may be expunged pursuant to the provisions of this Title:
(a) A conviction for possession of a controlled dangerous substance as provided for in R.S. 40:966(C), 967(C), 968(C), or 969(C), or 970(C).
(b) A conviction for possession of a controlled dangerous substance with the intent to distribute.
(c) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which is punishable by a term of imprisonment of not more than five years.
(d) A conviction for a violation of the Uniform Controlled Dangerous Substances Law which may be expunged pursuant to Article 893(E).

We first note that in State v. Taylor, 91 So.3d at 1069, this court found that expungement was available in the case of a deferred sentence, but not in the case of a suspended sentence. However, this case differs from State v. Taylor as herein the district court suspended the sentence and effectively deferred the sentence at the same time by accepting the guilty plea pursuant to La. C.Cr.P. art 881.1 and holding the minutes open. Even though the sentence was initially imposed and the execution was suspended as in State v. Taylor, the court held the minutes open and deferred a motion for reconsideration of the sentence until she completed her probation. At that time the court resentenced the defendant under the provisions of La. C.Cr.P art. 893. This article provides for either a suspension of the execution of the sentence or a deferral of the imposition of the sentence. While it would have been better if the court had specified what portion of Article 893 was being applied in the resentencing, it appears it had to be the portion providing for a deferral of the imposition of sentence since the original sentence had already been suspended.

Louisiana Code of Criminal Procedure article 978B(3)(b) provides that a violation of the Uniform Controlled Dangerous Substances Law may not be expunged pursuant to the provisions of Title 34, with exceptions, including an exception allowing for expungement of a conviction for possession of a controlled dangerous substance with the intent to distribute. This seemingly is in conflict with La. C.Cr.P. art. 893E(1)(b) which prevents deferral of a sentence for certain offenses, including La. R.S. 40:966(A), which prohibits distribution or possession with intent to distribute a Schedule I controlled dangerous substance such as synthetic marijuana. However, the expungement statute clearly envisions an expungement for possession with intent to distribute and not for distribution of a controlled dangerous substance.

See La. C.Cr.P. art. 978B(3)(b). Thus, these statutes contemplate some situations where expungement is allowed in the case of a possession with intent to distribute violation. These are found in La. C.Cr.P. art. 893E.

Louisiana Code of Criminal Procedure article 893E has four separate distinct sections relating to expungement. The District Attorney maintains that sections (3) and (4) require completion of a Drug Court diversion program and the concurrence of the District Attorney's Office, or completion of an intensive incarceration program and concurrence of the District Attorney's Office, respectively. We agree that neither of these has occurred; however, those provisions, as written by the Legislature, are alternatives. Since sections (2), (3), and (4) are distinctive, individual sections, the Legislature must have meant that each one should be considered independently of the others. Thus, we find that it is not necessary that sections (3) and (4) be met. The applicable section herein is La. C.Cr.P. art. 893E(2), which provides that "Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution." That provision has been met.

Legislation is a solemn expression of the legislative will; thus, the interpretation of legislation is primarily the search for the Legislative intent. Cat's Meow, Inc. v. City of New Orleans through Dept. of Finance, 98-0601 (La. 10/20/98), 720 So.2d 1186, 1198. The legislative intent of 2014 La. Acts No. 145, which enacted La. C.Cr.P. art. 978, reveals that the new law provides for a comprehensive revision and major changes to the prior law, La. R.S. 44:9. See generally 2014 La. Acts No. 145, Sections 1 and 3 (enacting La. C.Cr.P. art. 971, et seq. and repealing La. R.S. 44:9 ). Since the purpose of La. C.Cr.P. art. 978 is remedial, rather than penal, it is to be liberally construed to make the statutory rule apply in more situations than would be the case under strict construction. See State v. Boniface, 369 So.2d 115, 116-117 (La. 1979). Louisiana Code of Criminal Procedure article 978 unequivocally provides for expungement for conviction for possession of a controlled dangerous substance with intent to distribute; La. C.Cr.P. art. 893E provides three separate ways in which this can be accomplished, namely, E(2), (3), and (4).

Expungement is allowed in this case as La. C.Cr.P. art. 893E(2) has been complied with; thus, we find that the district court did not err in granting A.R.W.'s expungement as to possession of a Schedule 1 controlled dangerous substance with the intent to distribute in violation of La. R.S. 40:966A(1) under the facts of this case.

CONCLUSION

For the foregoing reasons, the district court judgment is affirmed. Costs in the amount of $565.00 are assessed against the St. Tammany Parish District Attorney's Office.

AFFIRMED.

      As A.R.W. was granted an expungement, and the purpose of an expungement is to preserve privacy, we utilize her initials to preserve her privacy. See State v. L.B. , 95-2115 (La. App. 1 Cir. 5/30/96), 676 So.2d 179, n. 1.


author: PICKETT, Judge.

text:
    Katina HODGES v. GOLDEN NUGGET LAKE CHARLES, LLC
    17-936
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2018
    Lance S. Ostendorf, John G. Alsobrook, Ostendorf, Tate, Barnett, LLP, 650 Poydras Street, Suite 1460, New Orleans, LA 70130, (504) 324-2244, COUNSEL FOR DEFENDANT-APPELLANT: Golden Nugget Lake Charles, LLC
    Justin T. Morales, Todd A. Townsley, Rex D. Townsley, The Townsley Law Firm, 3102 Enterprise Boulevard, Lake Charles, LA 70607, (337) 478-1400, COUNSEL FOR PLAINTIFF-APPELLEE: Katina Hodges
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Elizabeth A. Pickett, Judges.
   PICKETT, Judge.

The defendant employer appeals a judgment that awards the claimant workers' compensation benefits, penalties, and attorney fees. For the reasons that follow, we amend the judgment and affirm it as amended.

FACTS

On January 6, 2015, Katina Hodges was working at the Golden Nugget Casino as a security guard. While standing next to a podium at an entrance to the casino where she performed identification checks, Ms. Hodges fainted and fell to the floor. A surveillance video shows that she fell toward the podium and struck her left shoulder on it. She continued falling, and her lower right leg and knee struck the marble floor. The rest of her body followed, until the entire right side of her body contacted the floor. The right side of her head then hit the floor, and Ms. Hodges appeared to experience a seizure because her body continued moving, yet witnesses reported that she was unconscious at the time.

Ms. Hodges was transported by ambulance to Christus St. Patrick Hospital in Lake Charles where CT scans were performed and interpreted as showing that she suffered a subarachnoid hemorrhage in the right frontal portion of her brain. She was then transported to Our Lady of the Lake Hospital in Baton Rouge where additional CT scans were interpreted as also showing a subarachnoid hemorrhage in the right frontal portion of Ms. Hodges' brain. Dr. Rebecca Whiddon, a neurologist, treated Ms. Hodges at Our Lady of the Lake Hospital and agreed with the radiologists' interpretations of a subarachnoid hemorrhage. Ms. Hodges treated with Dr. Whiddon until March 18, 2015. Thereafter, she treated with a number of physicians for injuries and aggravations of pre-existing injuries or conditions, including low back pain, right knee and leg pain, and depression that she claims resulted from her fall.

On January 30, 2015, Golden Nugget filed a Notice of Controversion, denying it owed benefits and medical expenses to Ms. Hodges on the grounds that her claim was not compensable because it was caused by a fainting spell. In April 2015, Ms. Hodges filed a Disputed Claim for Compensation wherein she alleged that she passed out, fell, and hit her head while working. Golden Nugget denied Ms. Hodges' claim and asserted that her alleged injury was not compensable under the Workers' Compensation Act. It also alleged that she forfeited any benefits to which she may be entitled under La.R.S. 23:1208 because of misrepresentations she made during the course of her claim.

On March 6, 2017, the matter was tried before the Workers' Compensation Judge (WCJ). After taking the matter under advisement, the WCJ issued oral reasons for ruling on May 30, 2017, holding that Ms. Hodges' fall on January 6, 2015, was an accident. The WCJ further held that Ms. Hodges suffered injuries as a result of the accident and ordered Golden Nugget to pay total temporary disability benefits, supplemental earnings benefits (SEBs), medical benefits, penalties in the amount of $2,000 for its failure to pay Ms. Hodges indemnity benefits and $2,000 for its failure to pay her medical expenses, and attorney fees in the amount of $25,000. On June 20, 2017, the WCJ signed a judgment conforming to those reasons.

Golden Nugget appealed that judgment and urges that the WCJ erred in awarding Ms. Hodges workers' compensation benefits, penalties, and attorney fees.

STANDARD OF REVIEW

"Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one." Foster v.Rabalais Masonry, Inc. , 01-1394, p. 2 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, 1162, writ denied , 02-1164 (La. 6/14/02), 818 So.2d 784 (citation omitted).

Waiver of Benefits Pursuant to La.R.S. 23:1208

Golden Nuggets first contends that the WCJ erred in rejecting its claim that Ms. Hodges forfeited her right to workers' compensation benefits, as provided by La.R.S. 23:1208(A), because she made misrepresentations during the course of her claim in response to discovery requests, to its vocational rehabilitation experts, in her deposition, and to her treating physicians.

Louisiana Revised Statutes 23:1208(A) provides that it is "unlawful for any person, for the purpose of obtaining ... any benefit or payment ... to willfully make a false statement or representation." An employee who violates this provision "shall, upon determination by workers' compensation judge, forfeit any right to compensation benefits under this Chapter." La.R.S. 23:1208(E). For an employer to prove a claim for forfeiture of workers' compensation benefits under La.R.S. 23:1208, it must prove that (1) the claimant made a false statement or representation, (2) the statement was willfully made, and (3) the statement was made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co. , 94-2708, 94-3138 (La. 9/5/95), 660 So.2d 7. Inadvertent or inconsequential false statements do not satisfy the employer's burden of proof. Rougeou v. St. Francis Cabrini Hosp. , 12-854 (La.App. 3 Cir. 2/6/13), 107 So.3d 851. A WCJ's finding that a claimant did not make a false statement to obtain benefits is a finding of fact subject to the manifest error standard of review. Gibson v. Resin Sys., Inc. , 15-299, p. 8 (La.App. 3 Cir. 10/7/15), 175 So.3d 1141, 1147.

Golden Nugget asserts that Ms. Hodges denied any prior injuries, prior incidents, or prior physical or mental impairments before the accident in her Answers to Interrogatories and Responses to Request for Production it propounded to her and when it deposed her on August 24, 2015. Golden Nugget also points out that Ms. Hodges failed to report on physician questionnaires that prior to January 2015, she had complaints of and treatment for left shoulder pain, which was diagnosed as a tear of the superior labrum, and low back pain. It also notes that Ms. Hodges failed to report to physicians for more than four months that she slipped and fell off her porch in April 2015, injuring her right ankle, right knee, and back. Golden Nugget further asserts that admissions by Ms. Hodges that she reported only the accident, but not the slip and fall off her porch, to Dr. Seth Billiodeaux, her pain management specialist, and Drs. Robert Abramson and Christina Notarianni, two neurosurgeons who also treated her, constitutes misrepresentations that warrant forfeiture. It also points to Ms. Hodges' denial of working when she worked for Lofton Staffing & Security Services from October 2015 through May 2016 and to misrepresentations she made regarding the time frame within which she worked, as well as the number of hours she worked, as cause for forfeiting benefits.

Ms. Hodges defends this claim arguing that she suffered a brain injury as a result of the accident which resulted in some memory loss that excuses her failure to timely recall and report past events. She also argues that testing performed by Golden Nugget's vocational rehabilitation expert showed she has a 5.1 grade equivalent in Reading Recognition, a 4.4 grade equivalent in Reading Comprehension, and a 3.7 grade equivalent in Math is evidence that her brain injury affected her memory because she graduated from high school and completed some college.

Golden Nugget counters Ms. Hodges' claims that she merely forgot to report pre- and post-accident medical conditions with Lofton's employment records. Lofton's records show that Ms. Hodges began working in October 2015 and that before she began working, Ms. Hodges was administered (1) a Warehouse Safety & Inventory Test on which she scored 80; (2) a Basic Skills test on which she scored 100; (3) a Basic Arithmetic test on which she scored 90; and (4) a Grammar & Spelling Industrial test on which she scored a 71. On January 28, 2016, she attended a Security Training Class and scored 96 on a test administered at that time.

Lofton's employment records also show that Ms. Hodges worked more than she claims. Beginning in October 2015, she worked every month until June 2016. She worked during twenty-five of the thirty-five weeks in that period. Ms. Hodges met with Golden Nugget's vocational rehabilitation expert on March 8, 2016, and denied that she was working; however, Lofton paid her for work performed during fourteen of the fifteen weeks immediately preceding that meeting. During those weeks, she worked as little as four hours per week and as many as forty hours per week. She worked 21.33 hours the week preceding the March 8 meeting with the vocational rehabilitation expert, and she worked 37.33 hours the week ending February 29, 2016.

In May 2016, Ms. Hodges received a favorable decision on a claim she had filed for Social Security disability benefits in which she alleged that she was disabled beginning December 31, 2011. She testified that she began receiving those benefits in May or June 2016. She did not work for Lofton after receiving Social Security disability benefits.

Ms. Hodges cites her own testimony and the testimony of her son as factual support for her claim that her fall and brain injury have caused her to experience memory loss. She also cites Keys v. Republic Services. , 12-252 (La.App. 3 Cir. 10/3/12), 99 So.3d 734, writ granted , 12-2369 (La. 1/18/13), 107 So.3d 619, writ denied as improvidently granted , 12-2369 (La. 5/7/13), 118 So.3d 342, where medical evidence established that the claimant's Huntington's disease affected his brain and excused his or her misstatements or misrepresentations as to his prior medical history.

Our review of Ms. Hodges' medical records does not show that any physician reported her head injury caused or could cause her to suffer memory loss. It does show, however, that Dr. Horatio A. Millin, Jr., a psychiatrist who began treating Ms. Hodges after the accident, diagnosed her with major depressive disorder, attention deficit disorder, general anxiety disorder, and insomnia. Dr. Millin explained that his role in treating Ms. Hodges was to determine the impact of chronic pain on her psychological symptoms. He testified it is well known that depression can cause short-term memory deficit. He also pointed out that Dr. Andrew Thrasher, a psychiatrist, reported in 2014 that Ms. Hodges had a short-term memory deficit.

The WCJ denied Golden Nugget's claim for forfeiture, stating: "Considering the nature of the claimant's injury, this court is unable to find that Ms. Hodges possessed the required intent to defraud the workers' compensation system." The discrepancies Golden Nugget relies on were detailed to the WCJ at trial, and, despite those discrepancies, the WCJ concluded that Golden Nugget had not established that Ms. Hodges had the requisite intent to justify forfeiture of her benefits.

Golden Nugget had the burden of proving this defense; however, it did not present evidence to establish what short-term memory loss or deficit is and how it impacts a person's ability to recall and report events. In light of the totality of the evidence, especially the medical evidence, and the "great deference" owed to the trier of fact, we cannot say that Golden Nugget carried its burden of proving Ms. Hodges violated La.R.S. 23:1208. Rogel v. Dollar Gen. Corp. , 13-792 (La.App. 3 Cir. 12/11/13), 132 So.3d 978, writ denied , 14-58 (La. 3/14/14), 135 So.3d 604 (quoting Rosell v. ESCO , 549 So.2d 840, 844 (La.1989). Accordingly, we find no manifest error in the WCJ's denial of Golden Nugget's La.R.S. 23:1208(A) defense.

The WCJ Erred in Holding that Katina Hodges' Injuries are Compensable

Golden Nugget next argues that the WCJ erred in finding that Ms. Hodges proved she was injured as the result of "an accident," as defined by the Workers' Compensation Act. Pointing to the testimony of its two experts, Dr. Curtis Partington, a neuroradiologist, and Dr. James Domingue, a neurologist, it asserts that Ms. Hodges suffered a blood clot in her brain that is not compensable under the Workers' Compensation Act.

The Workers' Compensation Act defines a compensable injury to "include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted." La.R.S. 23:1021(8)(a). The Act also provides that a "perivascular injury ... shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable ... unless it is demonstrated by clear and convincing evidence that" the following two conditions are satisfied:

(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.

La.R.S. 23:1021(8)(e).

Ms. Hodges presented the video showing her fall of January 6, 2015, her testimony, her son's testimony, and the testimony of a radiologist, a neurologist, and a neurosurgeon to establish that her fall was a compensable accident. Dr. Whiddon confirmed Ms. Hodges' diagnosis as a small right frontal subarachnoid hemorrhage in her brain. Based on the events immediately preceding Ms. Hodges' fall, Dr. Whiddon related the hemorrhage to the fall because she found no alternative explanation for it in the CT scans.

Dr. Richard Martinez, a diagnostic and interventional radiologist, testified in detail with regard to the CT scan taken at Christus St. Patrick Hospital shortly after Ms. Hodges' fall and also confirmed the diagnosis of subarachnoid hemorrhage. Dr. Martinez and Dr. Whiddon opined that the mechanics of her fall, as depicted on the video, provide the best explanation for her injury because her head came to an abrupt stop when it hit the floor, causing her brain to slam against that side of her skull then continue moving such that it bounced back and hit the opposite side of her skull. Dr. William Brennan, a neurosurgeon, explained in detail the pertinent anatomy of the brain and the manner in which blood flows to and from the head and brain. He testified that the diagnosed subarachnoid hemorrhage is easily demonstrated on Ms. Hodges' CT scans and is "not surprising in light of how she fell."

Drs. Partington and Domingue testified that CT scans of Ms. Hodges' brain show a transverse sinus thrombosis or blood clot in one of the veins in her head that drains blood from her brain which caused her to faint and have seizures. Dr. Partington testified that he did not see any sign of traumatic injury to her brain. Dr. Partington did not examine Ms. Hodges or view the video of her fall and testified that CT scans of her brain provided him all the information he needed to diagnose her problem. Dr. Domingue reviewed the video of Ms. Hodges' fall and admitted it is hard to say that the manner in which her head hit the floor when she fell did not contribute to the hemorrhaging in her brain.

Dr. Whiddon found nothing in Ms. Hodges' presentation that suggested a blood clot as described by Drs. Partington and Domingue. She explained that the type of bleeding and area of bleeding in Ms. Hodges's brain was unusual for the type of blood clot they diagnosed. Dr. Martinez also disagreed with the diagnosis of a blood clot, explaining, in part, that a venous thrombosis is a latent complication that occurs over time, which is not immediately seen. Dr. Brennan further explained that a transverse sinus thrombosis is an extremely rare condition that has catastrophic results in its victims that are not present here. Drs. Martinez and Brennan both opined that the manner in which Ms. Hodges fell and hit her head was integral to understanding her injury and why it is most likely that she suffered a subarachnoid hemorrhage when she fell.

As is often the case in workers' compensation matters, the WCJ was faced with divergent medical opinions. She had the duty of considering the differing opinions and determining which opinion was most credible. When evaluating expert testimony, a WCJ is granted considerable discretion, and the acceptance of one expert's opinion over the conflicting testimony of another expert can never be manifestly erroneous. Richard v. Vermilion Hosp. , 10-385 (La.App. 3 Cir. 6/9/10), 41 So.3d 1219, writ denied , 10-1611 (La. 10/8/10), 46 So.3d 1269.

In accordance with the general rule that a treating physician's opinion should be given greater weight than consulting physicians, the WCJ reviewed the testimony of each expert and accepted the findings of Dr. Whiddon, Ms. Hodges' neurologist, that Ms. Hodges suffered a subarachnoid hemorrhage when she fell. See Richardson v. Lil' River Harvesting , 09-1090 (La.App. 3 Cir. 3/10/10), 33 So.3d 418 ). Golden Nugget argues that the WCJ erred in doing so because Dr. Whiddon had much less experience reading CT scans than Dr. Partington and acknowledged that when she reviewed the CT scans, she did not notice a blood clotin Ms. Hodges' right transverse sinus and it was possible there was a blood clot she did not notice.

When determining the weight to be afforded a treating physician's testimony, the WCJ must also consider the physician's qualifications and the facts upon which his opinion is based; both have great bearing on this issue. Vidrine v. Teche Elec. Supply, L.L.C. , 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied , 09-964 (La. 6/19/09), 10 So.3d 739. Dr. Whiddon thoroughly explained the basis for her diagnosis, and her reasoning and conclusion were corroborated by the interpretations of the Christus St. Patrick Hospital and Our Lady of the Lake Hospital radiologists, Dr. Martinez, and Dr. Brennan. For these reasons, we find the WCJ's assessment of the expert testimony and opinions is reasonable and supported by the evidence and, therefore, not manifestly erroneous.

The WCJ Erred in Finding a Causal Relationship Existed between the Accident and Injuries to Katina Hodges' Left Shoulder, Right Knee, and Low-Lying Conus

Ms. Hodges sought treatment for injuries to her left shoulder, low back, right leg, and right knee that she asserts were caused or aggravated by the accident. The WCJ held that she proved these claims and held that "[t]he accident caused, aggravated, accelerated, or combined with injuries to her low back, right leg, right knee, and left shoulder." Golden Nugget asserts that Ms. Hodges' medical records and her treating physicians' testimony show that her complaints regarding these areas are not related to the accident because they either pre-existed the accident and/or because she failed to report complaints of pain in these areas for four or more months after the accident.

It has long been held that for purposes of workers' compensation, an employer takes the worker as he finds him and that an abnormally susceptible worker is entitled to the same as a healthy worker. Fontenot v. Wal-Mart Stores,Inc. , 03-1570 (La.App. 3 Cir. 4/7/04), 870 So.2d 540, writ denied , 04-1131 (La. 6/25/04), 876 So.2d 843. Therefore, a claimant who suffers from a pre-existing medical condition is entitled to benefits if she proves that a work accident aggravated, accelerated, or combined with the pre-existing condition to produce disability for which she seeks benefits. Sharbono v. Fire Safety Sales & Serv. , 04-265 (La.App. 3 Cir. 9/29/04), 883 So.2d 1066, writ denied , 04-2661 (La. 1/28/05), 893 So.2d 73.

The medical evidence established that Ms. Hodges had a pre-existing injury to her left shoulder and that she had a congenital condition known as low-lying conus or tethered cord syndrome. Low-lying conus results when the spinal cord fails to develop normally.

Ms. Hodges saw Dr. Brett Cascio, an orthopedic surgeon, in early September 2015, complaining of left shoulder pain and right leg pain. Dr. Cascio performed surgery on Ms. Hodges' right knee to repair a torn meniscus. Based on the history Ms. Hodges related to him, Dr. Cascio opined that her complaints of her knee pain were triggered by the accident. Ms. Hodges reported to Dr. Cascio that she had injured her left shoulder while working for FedEx where she was required to lift and move packages but explained that she had increasing pain in left shoulder after the accident. Dr. Cascio also performed surgery on her left shoulder and acknowledged that the shoulder injury pre-existed the accident. He related the aggravation of her left shoulder injury to the accident and testified that a direct trauma to her shoulder could aggravate that pre-existing injury.

Due to complaints of chronic pain, Dr. Cascio referred Ms. Hodges to Dr. Billiodeaux, an anesthesiologist who specializes in pain management. Dr. Billiodeaux first saw Ms. Hodges in September 2015. Her chief complaints at that time were back pain and neck pain. At that time, he documented, among other things, weakness in her right lower leg, abnormal gait, stiffness in her back, and painful extension of her lower back. After obtaining an MRI of Ms. Hodges' back, Dr. Billiodeaux diagnosed her as having tethered cord, also known as a low-lying conus, which occurs when the spinal cord extends further down than normal and connective tissue "tethers" the spinal cord. Dr. Billiodeaux explained that a low-lying conus "can put extensive tension on the nerve roots ... and can be undiagnosed ... until spontaneous or minor injury would occur." He further related that the condition can result in sensory motor deficits. Dr. Billiodeaux explained that a person with tethered cord is more susceptible to injury and that symptoms like those Ms. Hodges complained of, i.e., tingling in her right leg, instability which causes falls, pain radiating into her right hip and down her right leg, can occur spontaneously or following an injury. He opined that the accident caused Ms. Hodges' tethered cord to become symptomatic, causing her lower back pain, pain radiating down her right hip and leg, and associated sensory deficits in her right leg or "at the least" aggravated this pre-existing condition. Dr. Billiodeaux referred Ms. Hodges to Dr. Abramson for further treatment of the condition which was ultimately treated with surgery performed by Dr. Notarianni.

Dr. Brennan testified that he agreed with Drs. Cascio and Billiodeaux that the mechanics of Ms. Hudson's fall could have caused her to suffer left shoulder pain, back pain, and right leg and knee pain.

Central to the trial of this matter was the aggravation of Ms. Hodges' pre-existing left shoulder injury and her delay in seeking treatment for her complaints of pain in her back, right leg, and right knee. The parties presented extensive medical evidence on these conditions and the issue of causation. Golden Nugget argues Ms. Hodges' failure to complain of pain in the areas earlier than she did and not reporting a slip and fall on her front porch evidences that her complaints do not relate to the accident. Dr. Cascio noted that he believed Ms. Hodges had some cognitive issues that may have caused the delay in her seeking treatment. He also observed that financial constraints may have been an issue. Ms. Hodges explained at trial that she did not report the slip and fall because she did not experience any new complaints of pain after it occurred.

In our view, the WCJ's opportunity to hear and see Ms. Hodges' live testimony and assess her credibility was essential to her evaluation of the totality of the evidence. Undoubtedly, the WCJ found Ms. Hodges to be credible. Based on the record before us, we cannot say that a reasonable fact finder would not accept Ms. Hodges as credible. Accordingly, we do not find that the WCJ manifestly erred in holding that a causal relationship between the accident and her complaints of pain in her left shoulder and her right knee, as well as her complaints of pain in her low back and pain and instability in her right leg, attributed to her low-lying conus.

The WCJ Erred in Holding that the Accident Aggravated or Caused Katina Hodges' Depression

Golden Nugget contends that Ms. Hodges failed to prove that her depression was caused or aggravated by the accident. It points to the fact that she suffered from pre-existing severe depression when the accident occurred and was found to be disabled by the Social Security Administration beginning December 31, 2011. Golden Nugget cites Dr. Millin as denying that the accident aggravated her depression to support this claim.

As discussed above, Dr. Millin treated Ms. Hodges for the impact of her chronic pain on her psychological symptoms. He acknowledged that she suffered with depression for ten or eleven years before the accident but explained that a significant fall, such as the one she experienced, can aggravate pre-existing depression. Dr. Millin further testified that he did not consider Ms. Hodges disabled prior to January 6, 2016, from a purely psychiatric or psychological point of view. He added that "the additional layer of chronic pain" she began suffering after the accident is "something completely different," indicating that he considered her disabled after the accident. Dr. Millin denied that if Ms. Hodges had chronic pain before the accident she was disabled prior to that time.

The medical evidence clearly shows that Ms. Hodges had severe depression before the accident; however, Dr. Millin's testimony relates an increase in her depression and associated symptoms to the severity of the chronic pain she experienced after the accident. Accordingly, we cannot say the WCJ's holding that Ms. Hodges' depression was aggravated by the accident is unreasonable.

The WCJ Erred in Assessing Penalties Against Golden Nugget

Golden Nugget next complains that the WCJ erred in assessing it with penalties, $2,000 each for failing to pay Ms. Hodges indemnity and medical benefits. Ms. Hodges counters with the testimony of Golden Nugget's claims adjuster who testified that Ms. Hodges was not entitled to workers' compensation benefits because her fainting at worked caused the accident. Sampson v. Avoyelles Parish School Bd. , 11-1248 (La.App. 3 Cir. 3/7/12), 86 So.3d 118

When an employer refuses to authorize medical treatment for an eligible workers' compensation claimant, the claimant is entitled to penalties and attorney fees unless the employer reasonably controverts the claim. La.R.S. 23:1201(F) ; Leonards v. Carmichael's Cashway Pharmacy, Inc. , 09-1424 (La.App. 3 Cir. 5/5/10), 38 So.3d 571, writ denied , 10-1738 (La. 10/29/10), 48 So.3d 1094. A claim is reasonably controverted if the employer establishes that it had "some valid reason or evidence" for denying the claim. Trahan v. City of Crowley , 07-266, p. 5 (La.App. 3 Cir. 10/3/07), 967 So.2d 557, 561, writs denied , 07-2462, 072471 (La.2/15/08), 976 So.2d 185, 187, respectively. Penalties are stricti juris and should only be imposed when the evidence shows the employer's refusal to authorize medical treatment was without just cause and not in good faith. Mouton v. Gulfstream Servs. , 08-1186 (La.App. 3 Cir. 5/6/09), 11 So.3d 1135. A WCJ has great discretion when considering a claim for penalties and attorney fees.

Ducote v. La. Indus., Inc. , 07-1536 (La.App. 3 Cir. 4/2/08), 980 So.2d 843. We will not reverse an award of penalties or attorney fees unless we determine it to be manifestly error or clearly wrong.

The WCJ awarded Ms. Hodges penalties and attorney fees because Golden Nugget failed to pay her indemnity benefits and medical benefits and failed comply with its continuing duty to investigate. Golden Nugget's claims adjuster testified that she denied the claim after being informed by Ms. Hodges' co-workers that she experienced a seizure when she fell. In Fontenot, 870 So.2d 540, the court rejected Golden Nugget's defense, citing our supreme court's opinion in Guidry v. Serigny , 378 So.2d 938 (La.1979), and reversed the trial court's denial of compensation benefits to a cook who had fallen as she walked from the storage area of a restaurant to its kitchen because the evidence showed that the claimant had fallen due to a fainting spell instead of as a result of a waxed floor. The supreme court awarded benefits, finding that the accident was the claimant's fall, regardless of what caused her to fall.

In spite of the medical evidence available immediately after the accident that diagnosed Ms. Hodges as having suffered a subarachnoid hemorrhage and Dr. Whiddon's refusal to release her to return to work until she was evaluated for hallucinations and depression that Ms. Hodges reported, Golden Nugget refused to pay Ms. Hodges workers' compensation benefits. Golden Nugget did not reconsider its position when Ms. Hodges continued to seek medical treatment thereafter and did not seek justification for its continued denial of benefits until almost a year after the accident when it finally sought the opinions of Drs. Partington and Domingue. Under these circumstances, we cannot say that the WCJ erred in finding Golden Nugget's failure to timely pay indemnity and medical benefits was arbitrary and capricious and awarding penalties against it.

Alternatively, the WCJ erred in awarding SEB's at $0 Earnings

The WCJ awarded Ms. Hodges temporary total disability benefits for the period January 6, 2015, through October 11, 2015, and SEBs thereafter "based on zero earnings, until and unless she has been cleared by all of her treating physicians, not just Dr. Brett Cascio." Pointing to her work for Lofton, Golden Nugget argues that the WCJ erred in awarding Ms. Hodges SEBs but assigning her $0 in earnings.

The supreme court discussed SEBs in Poissenot v. St. Bernard Parish Sheriff's Office , 09-2793, pp. 4-5 (La. 1/9/11), 56 So.3d 170, 174 (alterations in original) (footnote omitted), explaining:

"The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident." Banks v. Industrial Roofing Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks, supra at 556. "In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle v. Sherwin-Williams Co. , 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co. , 483 So.2d 1037, 1039 (La.App. 3 Cir.1985) ). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or
the employee's community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i) ; Banks, supra at 556 ; Daigle, supra at 1009.

Ms. Hodges first argues that she is entitled to SEBs based on $0 wages because she only worked nineteen days during the period of October 12, 2015, through June 13, 2016, and she never worked full time. As discussed above, Lofton's payroll records reflect Ms. Hodges worked more than she claims; however, she did not work full time. Ms. Hodges contends that she only worked because Golden Nugget was not paying her indemnity benefits and she had no other source of income. Ms. Hodges also cites Dr. Millin's opinion that she should have been on a no-work status beginning November 18, 2015, and the fact that he never approved any of the jobs Golden Nugget's vocational rehabilitation expert submitted to him for approval as support for the WCJ's award.

Dr. Millin initially testified the Ms. Hodges could not work but later testified it was hard to deny Ms. Hodges could work if she actually was working. Furthermore, Dr. Millin testified that he does not get involved in work status assessments and disability applications and explained that if Ms. Hodges' orthopedist and neurologist approved jobs that she could perform, he would not disagree with those decisions.

The WCJ qualified the award of SEBs at $0 per week "until and unless she has been cleared by all of her treating physicians, not just Dr. Brett Cascio." By August 15, 2016, Drs. Cascio, Domingue, and Notarianni approved various jobs that Ms. Hodges could perform. Moreover, Dr. Whiddon testified that the only reason she did not release Ms. Hodges to return to work on her last visit in March 2016 was that she wanted her evaluated by a psychiatrist because of Ms. Hodges' reports of hallucinations and depression. Ms. Hodges did not return to Dr. Billiodeaux for treatment after he referred her to Dr. Abramson and did not return to Dr. Abramson or Dr. Notarianni after she had surgery on her back.

Having considered the WCJ's rulings in light of Ms. Hodges' work from October 11, 2015, through June 2016 and the medical evidence, we find that the WCJ erred in awarding SEB's based on $0 earnings. We amend that award to award Ms. Hodges SEB's beginning October 11, 2015, based on earnings of $150 earnings per week from that date until August 15, 2016, the date on which the last of her treating physicians approved jobs that she could perform. Earnings of $150 per week are assessed after consideration of Ms. Hodges' actual weekly earnings with Lofton, which ranged from $36 per week to $360 per week and the actual hours she worked each week, which increased steadily beginning in February 2016. Ms. Hodges only worked 4.5 hours during one week in June 2016; however, she began receiving Social Security disability benefits that month. Therefore, we do not consider this as evidence that she could not continue working part-time as she had since October 2015.

Ms. Hodges also argues that she cannot work because she has continuing issues with pain and swelling in her right leg. Golden Nugget established that her physicians approved employment positions that are primarily sedentary in nature, which will allow her to make postural changes from sitting to standing and vice versa during the workday. It also presented evidence of such positions being available in Lake Charles which pay $8-$15 per hour. Golden Nugget paid Ms. Hodges a base pay of $11.50 per hour; 90% of $11.50 is $10.35. Golden Nugget argues that because three of the cited positions pay more than $12 per hour, its obligation to pay Ms. Hodges SEBs ceased on August 15, 2016. We agree. Accordingly, Golden Nugget's obligation to pay Ms. Hodges SEBs ceased on August 15, 2016.

The WCJ Erred in Allowing Drs. Richard Martinez and William Brennan to testify in violation of La.R.S. 23:1124.1

Golden Nugget urges that the trial court erred in allowing Dr. Martinez and Dr. Brennan to testify at trial on behalf of Ms. Hodges because she submitted the deposition testimony of Dr. Whiddon, her treating neurosurgeon, for trial purposes and it had submitted the testimony of Drs. Partington, a neurosurgeon, and Domingue, a neurologist for trial purposes. At trial, counsel for Golden Nugget objected to the testimony of Drs. Martinez and Brennan, arguing he was not aware the doctors would testify at trial and the doctors' testimony would be cumulative. Counsel for Ms. Hodges noted these doctors were listed as witnesses on her Pre-Trial Statement. The WCJ overruled the objection and allowed the doctors to testify.

Louisiana Revised Statutes 23:1124.1 prohibits the claimant and employer from introducing "the testimony of more than two physicians where the evidence of any additional physician would be cumulative testimony." In Carter v. Iberia Parish School Board , 17-594, p. 11 (La.App. 3 Cir. 12/13/17), --- So.3d ----, 2017 WL 6349414, another panel of this court found no error with the WCJ allowing the employer to present the testimony of more than two physicians, finding "The trial court could find this testimony provided additional perspectives necessary to aid the factfinder under La.R.S. 23:1124.1." The panel further observed that although cumulative evidence should not be allowed, it is within the trial court's discretion to decide what expert testimony it wishes to hear. The panel also explained: "While it is our duty to scrutinize trial court rulings, judgments, and factual findings, we are also mindful that an appellate court must not unduly micromanage those functions." Id. , pp. 11-12, --- So.3d at ----.

Golden Nugget's reliance upon the opinions of Drs. Partington and Domingue, which were diametrically opposed to the opinions of Ms. Hodges' treating physicians, clearly warranted the WCJ's allowance of these witnesses live testimony. Moreover, Dr. Brennan's in-depth testimony of the head and brain more likely than not provided the WCJ a better understanding of the experts' opposing opinions regarding Ms. Hodges' CT scans. We find no error by the WCJ.

DISPOSITION

For the reasons discussed herein, we amend the judgment in favor of Katina Hodges and against Golden Nugget to award supplemental earnings benefits for the period October 11, 2015, through August 15, 2016, based on earnings of $150 per week. The judgment is affirmed in all other respects. All costs are assessed to Golden Nugget Lake Charles, LLC.

AMENDED AND AFFIRMED AS AMENDED.


author: Judge Dennis R. Bagneris, Pro Tempore

text:
    The INTERDICTION OF Mattie ZIMMER
    NO. 2017-CA-0900
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 14, 2018
    Timothy Thriffiley, PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C., ATTORNEYS AT LAW, 8311 Highway 23, Suite 104, P.O. Box 7125, Belle Chasse, LA 70037-7125, COUNSEL FOR PLAINTIFF/APPELLANT, RICHARD ZIMMER
    Alan G. Bouerie, Alan G. Bouterie, Jr., Melanie M. Licciardi, BOUTERIE LAW FIRM, APLC, 2110 Packenham Drive, Chalmette, LA 70043, COUNSEL FOR DEFENDANT/APPELLEE, JAMIE-LANDRY ZIMMER
    (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dennis R. Bagneris, Pro Tempore.)
   Judge Dennis R. Bagneris, Pro Tempore

Appellant, Richard Zimmer, appeals the dismissal of his Petition for Intervention in the interdiction proceedings concerning his 18-year old daughter, Mattie Zimmer. He also appeals the district court's denial of his motion to stay the interdiction proceedings pending resolution of this appeal. For the reasons that follow, we find that the judgment of the district court should be reversed, and this matter remanded to district court.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant, Richard Zimmer ("Mr. Zimmer"), is the father of 18-year old Mattie Zimmer ("Mattie"). His former wife, Jamie Landry-Zimmer ("Ms. Landry-Zimmer"), is Mattie's mother. Upon Mattie's turning 18 years of age, Ms. Landry-Zimmer filed a Petition for Interdiction seeking Mattie's interdiction due to medical issues.

Attorney David Gernhauser was appointed curator ad hoc to represent Mattie in the interdiction pursuant to La. C.C.P. article 4544, and Mr. Zimmer received notice of the proceedings pursuant to La. C.C.P. article 4543.

Following receipt of that notice, Mr. Zimmer filed a Petition for Intervention objecting to the interdiction of Mattie, and alternatively praying that he be appointed as curator for Mattie, or in the further alternative, as undercurator. Ms. Landry-Zimmer filed peremptory exceptions of no cause of action and no right of action to the Intervention. Prior to the hearing on the exceptions, Ms. Landry-Zimmer voluntarily dismissed her exception of no right of action. After a hearing on the exception of no cause of action, the district court maintained that exception and dismissed Mr. Zimmer's Petition for Intervention.

Mr. Zimmer filed a timely Motion for Devolutive Appeal, appealing the judgment dismissing his Petition for Intervention, and requesting a stay of the district court proceedings pending his appeal. The district court granted the devolutive appeal and denied the stay. The instant appeal was timely filed.

On appeal, Mr. Zimmer asserts three assignments of error, namely:

1) The district court committed manifest legal error when it sustained Ms. Landry-Zimmer's exception of no cause of action and dismissed Mr. Zimmer's Petition for Intervention;

2) The district court abused its discretion and committed manifest error in refusing to allow the Appellant to amend his Petition for Intervention to remove the grounds for the exception of no cause of action; and

3) The district court abused its discretion in refusing to stay the district court proceedings pending the appeal.

DISCUSSION

The district court erred when it sustained Ms. Landry-Zimmer's exception of no cause of action and dismissed Mr. Zimmer's Petition of Intervention.

In his first assignment of error, Mr. Zimmer takes issue with the district court's ruling maintaining Ms. Landry-Zimmer's exception of no cause of action and dismissing his intervention. In maintaining the exception, the district judge stated: "Mr. Zimmer does not have a justiciable interest in, and connexity to, the principal action, and the interest is not so related or connected to the facts or object of the principal action that a judgment under principal action will have a direct impact on his rights. Thus the Exception of No Cause of Action is granted." Rec. 116.

Despite the fact that the litigants and the district court have captioned and characterized the subject exception as one for no cause of action, in our view it is more properly designated as an exception of no right of action. Although the exceptions of no cause of action and no right of action are often confused or improperly combined, they are separate and distinct. Badeaux v. Southwest Computer Bureau, Inc. , 05-0612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1216. The peremptory exception of no right of action questions "whether the plaintiff has the capacity or legal interest in judicially enforcing the right asserted." Alden v. Louisiana Citizens Prop. Ins. Co. , 16-0044, p. 4 (La. App. 4 Cir. 6/29/16), 197 So.3d 312, 315, citing Babineaux v. Pernie-Bailey Drilling Co. , 261 La. 1080, 262 So.2d 328, 334 (1972). In contrast, the peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy to anyone based on the facts alleged in the pleading. Dillon v. Toys R Us-Delaware Corp. , 16-0983, p. 2 (La. App. 4 Cir. 5/31/17), 221 So.3d 876, 877, citing Industrial Cos., Inc. v. Durbin , 02-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1212.

A review of the exception filed in this matter reveals that the exception was directed to the question of whether Mr. Zimmer has a justiciable right sufficiently connected to the main demand upon which to base his intervention. We note that "the proper procedural exception to challenge the appellant's 'justiciable right' ... is the exception of No Right of Action." Atchley v. Atchley , 97-474, p. 2, 707 So.2d 458, 459 (La. App. 5 Cir. 1/14/98). Likewise, where an exception is based upon "the lack of connexity between the intervention and the principal demand, the proper exception is one raising the objection of no right of action...." IberiaBank v. Live Oak Circle Dev., L.L.C. , 12-1636, p. 6 (La. App. 1 Cir. 5/13/13), 118 So.3d 27, 31. Thus, the exception at issue in this matter was mischaracterized and is properly considered an exception of no right of action.

However, "[h]arsh rules of pleading are not favored in this state." State, Dep't of Children & Family Servs. ex rel. A.L. v. Lowrie , 14-1025, p. 5 (La. 5/5/15), 167 So.3d 573, 578. Instead, "[e]ach pleading must be reasonably construed so as to afford the litigant his day in court, arrive at the truth, and do substantial justice." Id. , citations omitted. Thus, "our current practice directs us particularly to treat a mistakenly designated peremptory exception ... as if it were properly designated." Hightower v. Schwartz , 14-0431, pp. 6-7 (La. App. 4 Cir. 10/15/14), 151 So.3d 903, 906.

Applying these principles, we treat Ms. Landry-Zimmer's mistakenly designated peremptory exception of no cause of action as a properly designated exception of no right of action. We review an appeal of an exception of no right of action de novo . Alden , 16-0044 at p. 4, 197 So.3d at 315. Because it arises in the context of an intervention, it must be considered in conjunction with the statutory provisions which permit a party to intervene. Amoco Prod. Co. v. Columbia Gas Transmission Corp. , 455 So.2d 1260, 1263 (La. App. 4th Cir. 1984).

Louisiana Code of Civil Procedure article 1091, authorizing third party interventions, provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiff's demand; or
(3) Opposing both plaintiff and defendant.

La. C.C.P. art. 1091.

This article has been interpreted to require that a justiciable right must exist, and that the right must have a connexity with the facts, circumstances, and objects of the main demand. Harrison v. Gaylord's Nat'l Corp. , 539 So.2d 909, 910 (La. App. 4th Cir. 1989). A "justiciable right" for purposes of La. C.C.P. art. 1091"means the right of a party to seek redress or a remedy against either plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it." Amoco Prod. Co. , 455 So.2d at 1264. Connexity is present if the intervenor's claim is "so related or connected to the facts or object of the main action that a judgment on the main action will have a direct impact on the intervenor's rights." Id.

In the case at bar, Mr. Zimmer's intervention petition seeks, inter alia , that he be named curator or undercurator of his daughter. As a parent of the defendant, he ranks highest in statutory preference (co-equal with Ms. Landry-Zimmer) of the possible appointees for this role. His claim is in direct opposition to the prayer of petitioner, Ms. Landry-Zimmer, that she be named curatrix and her mother undercuratrix. In addition, because the judgment in the interdiction determines which of these parties is named curator or undercurator, it has a direct impact on the intervenor's rights. Accordingly, we find that Mr. Zimmer's intervention has the requisite justiciability and connexity to the main demand to confer a right of action.

We also note that in a somewhat analogous case, this Court determined that the father of an adult proposed interdict has a legal interest in the interdiction proceeding. See Ltd. Interdiction of Hester , 96-1195, p. 2 (La. App. 4 Cir. 11/20/96), 684 So.2d 506, 507. The proposed interdict in Hester was a divorced couple's 19-year old daughter who suffered from a variety of conditions. Id. at p.1, n.1, 684 So.2d at 506, n. 1. Her mother petitioned for her interdiction, and following the judgment of the district court naming the mother as curatrix and the defendant's brother as undercurator, the father sought appellate review of those rulings. Id. at p. 1, 684 So.2d at 506. The mother challenged her divorced husband's standing to contest the trial judge's rulings. Id. at pp. 1-2, 684 So.2d at 506. Citing case law holding that an alleged grandson of a proposed interdict was an interested person in the interdiction proceeding, with standing to oppose the appointment of the interdict's husband as curator, and that a proposed interdict's spouse and son validly joined the interdict in opposing the interdiction proceeding, this Court concluded that William Hester, as the father, was "an interested person in the interdiction proceeding and has standing to appeal the trial court's rulings." Id. at p. 2, 684 So.2d at 507.

This conclusion is in keeping with the requirement that the petitioner for interdiction include the names of the proposed interdict's parents in the petition for interdiction, and that the parents receive notice of the interdiction petition. See , La. C.C.P. arts. 4541, 4543. It is further buttressed by the fact, as noted above, that parents are listed as preferential appointees as curator. La. C.C. P. art. 4561(C). For all of the foregoing reasons, we find that the district court erred in sustaining Ms. Landry-Zimmer's exception and dismissing Mr. Zimmer's intervention.

Because we find that the intervention should have been allowed, we pretermit the issue of whether the district court erred in refusing to allow Mr. Zimmer to amend his Petition for Intervention to remove the grounds for the exception.

The trial court did not abuse its discretion in refusing to stay the trial court proceedings pending the appeal of the dismissal of his Petition for Intervention.

Mr. Zimmer also asserts that the trial court abused its discretion in refusing to stay the interdiction proceeding during the pendency of the instant appeal. We disagree. A trial court's denial of a motion for stay should not be disturbed absent an abuse of discretion. Hester v. Hester , 98-0854, p. 4 (La. App. 4 Cir. 5/13/98), 715 So.2d 40, 42. Mr. Zimmer asked for and was granted leave to file a devolutive appeal, rather than a suspensive appeal. A devolutive appeal, by definition, "does not suspend the effect or the execution of an appealable order or judgment." La. C.C. P. art. 2087. Moreover, our Code of Civil Procedure directs that interdiction proceedings shall be heard summarily and by preference in accordance with La.C.C.P. art. 4547. Given these facts and law, we cannot conclude that the district court abused its discretion in denying the motion to stay.

CONCLUSION

For all of the foregoing reasons, we find that the judgment of the trial court should be reversed, and this matter remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      Following the lodging of the record, Appellee moved to supplement the record with a transcript of the interdiction hearing which took place after the appealed judgment. "An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence." Miccol Enterprises, Inc. v. City of New Orleans , 12-0864, p. 7 (La. App. 4 Cir. 12/19/12), 106 So.3d 746, 750. Because the material with which appellee sought to supplement the record was not before the trial court or considered by it in rendering the judgment appealed from, it is new evidence and therefore cannot be considered.

      With respect to the question of cause of action, Ms. Landry-Zimmer has argued that in opposing the interdiction, Mr. Zimmer seeks to protect his daughter's rights rather than his own. We note that the intervention seeks, inter alia , that Mr. Zimmer be named either curator or undercurator. The Code of Civil Procedure clearly contemplates an action for a parent to be named curator or undercurator for an adult child. La. C.C.P. art. 4561(C). Accordingly, leaving aside the other allegations of the intervention, at a minimum, Mr. Zimmer has stated a cause of action to be named curator.

      The Code of Civil Procedure requires that:
      (1) The court shall consider the qualified persons [for appointment as curator] in the following order of preference:
      (a) A person designated by the defendant in a writing signed by him while he had sufficient ability to communicate a reasoned preference.
      (b) The spouse of the defendant.
      (c) An adult child of the defendant.
      (d) A parent of the defendant.
      (e) An individual with whom the defendant has resided for more than six months prior to the filing of the petition.
      (f) Any other person.
      La. C.C.P. art. 4561(C). In the instant case, defendant did not designate a curatrix in writing, and has no spouse or adult children, so her parents have the highest statutory preference for appointment as curator/curatrix.

      Matter of Magee , 366 So.2d 204 (La. App. 2nd Cir.1978).

      Interdiction of Scurto , 195 La. 747, 197 So. 417 (1940).