author: GREMILLION, Judge.

text:
    Ronald NERO v. ALLIED WASTE SERVICES, et al.
    18-501
    Court of Appeal of Louisiana, Third Circuit.
    February 6, 2019
    Michael B. Miller, Jacqueline K. Becker, Miller & Associates, P. O. Drawer 1630, Crowley, LA 70527-1630, (337) 785-9500, COUNSEL FOR PLAINTIFF/APPELLANT: Ronald Nero.
    James R. Raines, Joseph J. Cefalu, III, Kelsey A. Clark, Breazeale, Sachse & Wilson, LLP, P. O. Box 3197, Baton Rouge, LA 70821-3197, (225) 387-4000, COUNSEL FOR DEFENDANT/APPELLEE/CROSS-APPELLANT: BFI Waste Services, LLC, d/b/a Allied Waste Services of Acadiana-Scott.
    Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.
   GREMILLION, Judge.

In this protracted workers' compensation case, Mr. Ronald Nero appeals the judgment of the Workers' Compensation Judge (WCJ) that modified his 2010 workers' compensation award from temporary total disability (TTD) to supplemental earnings benefits (SEBs) and reduced the award by fifty percent retroactive to March 14, 2016 for his refusal to submit to vocational rehabilitation services. The employer answered the appeal and seeks forfeiture of benefits pursuant to La.R.S. 23:1208, restitution of all benefits paid after December 9, 2016 (the date of the hearing at issue), and sanctions against Mr. Nero's attorney. For the reasons that follow, we affirm the WCJ's judgment and deny the employer's motion for sanctions.

FACTS AND PROCEDURAL POSTURE

Mr. Nero was employed by Appellee, BFI Waste Services, LLC, d/b/a Allied Waste Services of Acadiana-Scott (Allied) as a driver. On February 15, 2008, Mr. Nero was injured when he was struck by a car while crossing a road on foot. Following the accident, Mr. Nero was treated by, among other physicians, Dr. Michael Holland, an orthopedic surgeon chosen by Mr. Nero. Dr. Holland opined on May 20, 2009, that Mr. Nero had reached maximum medical improvement (MMI) and could return to medium duty work. This opinion reinforced the opinion derived from a functional capacity evaluation Mr. Nero underwent in March 2009. Dr. Douglas Bernard, an orthopedic surgeon who saw Mr. Nero at the behest of Allied, reached the same conclusion. Nevertheless, on June 9, 2010, the WCJ awarded Mr. Nero weekly compensation indemnity of $ 522.00 per week on the basis of TTD status.

In late October 2014, Ms. Susan Davidson, a vocational rehabilitation counselor retained by Allied's insurer, wrote Mr. Nero's counsel advising of her retainer and requesting dates on which she could interview Mr. Nero for the purpose of providing vocational rehabilitation services to him and advising him that Allied wanted Mr. Nero re-evaluated by Dr. Holland. Mr. Nero's attorney wrote back on November 3, 2014 and asked her to complete a form containing thirteen questions or conditions and asking whether she would agree to abide by them. Ms. Davidson wrote back and advised that she was bound by the Code of Professional Ethics for Licensed Vocational Rehabilitation Counselors and was not required to agree to the terms of the form. Mr. Nero's attorney then wrote back and advised that Ms. Davidson was not required to agree to the terms, but, until she did, she would not be allowed to interview Mr. Nero, and Mr. Nero would not return to see Dr. Holland.

Allied responded by filing a "Motion to Compel Vocational Rehabilitation and Medical Examinations and to Suspend and Reduce Benefits, and for Sanctions." Mr. Nero filed a "Motion and Order for Penalties and Attorneys Fees," in which he alleged that, on February 21, 2015, Allied had reduced his weekly indemnity from $ 522.00 per week to $ 261.00 per week (fifty percent); that on June 27, 2015, the benefits were again reduced to $ 186.43 per week; that on July 2, 2015, indemnity was terminated; and that on July 14, 2015, his medical treatment benefits were terminated. Mr. Nero requested attorney fees and penalties for these actions. Allied then filed an exception arguing that Mr. Nero's latest motion was an unauthorized attempt to utilize summary process to litigate a matter that should only be tried by ordinary process. On February 12, 2016, the WCJ heard Mr. Nero's motion and, on March 7, 2016, awarded Mr. Nero penalties and attorney fees.

On February 16, 2016, Mr. Nero filed a "Motion to Review the Need for and Quality of Services Provided by Defendants for Vocational Rehabilitation Services," in which he alleged that no vocational rehabilitation counselor had provided services to him and that Allied had not demonstrated a need for such services. In his prayer, Mr. Nero requested that Ms. Davidson be removed or be ordered to "comply with reasonable conditions to assure adherence to [La.R.S.] 23:1226." On March 16, 2016, Allied filed an amended motion to modify the 2010 judgment to reduce or terminate Mr. Nero's benefits on the bases of his refusal to submit to medical examination with Dr. Holland, his refusal to participate in vocational rehabilitation, and the fact that he had been released to return to work. These motions were heard on December 9, 2016, and the WCJ ruled on December 14, 2017 as follows (record references omitted):

For all of the contentiousness of the parties, the evidentiary record was decidedly lacking. Allied Waste Services introduced various letters regarding vocational rehabilitation attempts, the records of Dr. Michael Holland, the treating orthopedic surgeon, the Functional Capacity Evaluation ordered by Dr. Holland that took place March 17-18, 2014, reports from Dr. Douglas Bernard, the employer's choice of physician, and multiple Facebook posts that were received as impeachment evidence. Nero introduced 3 exhibits. Plaintiff exhibit I is a copy of the Defendant's Amended Motion to Modify Judgment to Retroactively Reduce, Suspend and/or Terminate Benefits, and for Sanctions. Plaintiff exhibit 2 is a copy of Answers to Plaintiff's Third Set of Interrogatories. Plaintiff exhibit 3 is a copy of the June 2010 judgment. An affidavit by the adjuster was not received except as a Proffer, and subsequently the deposition of the adjuster, Evelyn Crawford, was introduced in place of the affidavit. Plaintiff's counsel was not allowed to question Susan Davidson, the employer's choice of vocational counselor, beyond her actual activities on the file and plaintiff's counsel was given the opportunity to offer her proffered testimony either via deposition or subsequent courtroom availability, but neither option was provided to this office, and therefore that proffered testimony has not been received into the record. The attorneys and WCJ did discuss the submission of the records of Dr. Neal J. Duhon of Acadiana Family Medical Associates, and those records were received under 5 separate face sheets (not all technically certifications). No one submitted the records of Dr. Korim, a neurologist, or the records of Dr. Bowie, a urologist, who saw him for potential kidney issues. Some of the reports of those physicians can be found in the records of Dr. Duhon[.]
Essentially, while Nero had extremely serious contusions and abrasions after his accident, the only surgery required was an arthroscope for the right knee. Pain in his shoulder resolved on its own. A disc herniation was seen on MRI but with no compression on any nerves and associated with no narrowing and no treatment was identified as necessary for that condition. Dr. Holland released him to medium duty as of May 20, 2009. Dr. Duhon re-certified him for his CDL [ ] as of January 8, 2009. There has been no treatment with either Dr. Korim or Dr. Bowie since 2009-2010. The adjuster testified that no medical treatment for Nero has been refused or not approved. She testified that she has not received a request for treatment with Dr. Hodges.
Dr. Duhon's records reflect that Nero is treated for erectile dysfunction, hip pain, anxiety, BPH [ ], chronic low back pain, Type 2 diabetes, HTN [ ], mixed hyperlipidemia, acute alcoholic hepatitis, hyperlipidemia, obesity, CAD [ ] and carotid artery stenosis, without cerebral infarction. Nero has been treating with Dr. Duhon as his family physician for many years, being seen on about a quarterly basis for some of these health conditions before the accident of 2008. The list referred to from February 29, 2016 is referred to because it is typed, not handwritten, so easier to understand. The WCJ found no work restriction from Dr. Duhon for the complaints from the work accident. In fact, the only disability opinion is Dr. Holland's medium duty restriction from May 2009.
With respect to the allegations by both parties regarding the provision of vocational rehabilitation services, Allied's exhibits 1-10 document the attempts of Susan Davidson to provide vocational services. She also testified to these contacts and a telephone conference she had with Nero's counsel. Nero's counsel refused to schedule a vocational interview until she agreed to his conditions. This issue has been ruled upon and is settled law. Ms. Davidson had no obligation to agree to the request of plaintiff's counsel.
Nero's counsel demonstrated no irregularity of any sort to justify withholding his client from an initial vocational evaluation. Nero's counsel was offered the opportunity to cross examine Ms. Davidson at a later time, either via deposition or additional court time scheduled (without the presence of the WCJ) but nothing was proffered. All the evidence available on vocational rehabilitation is the exhibits of Allied and the testimony in the record from Ms. Davidson.
Based upon the actual evidence in hand, as briefly summarized above, and due to the lack of other evidence, the WCJ finds as follows:
• Nero's request for penalties and attorney fees based upon the alleged failure of the employer to provide certain medical treatment is denied. Those sanctions are only due after written request, and there is no evidence that Nero made written request upon Allied for additional treatment with any of his doctors or written request for treatment with Dr. Hodges, a new doctor.
• Nero's Motion to Review the Need For and Quality of vocational services is denied.
• Any request for treatment with Dr. Hodges is denied as there is no evidence that such treatment is medically necessary. Nero has not seen the physicians previously approved for treatment in a period in excess of 5 years and it appears that Dr. Duhon has a handle on all of his medications and medical issues.
• With respect to treatment with Dr. Korim and/or Dr. Duhon, there is no evidence that treatment was ever denied, except through Nero's self-serving and not credible testimony.
• Allied's request for a Preliminary Determination hearing pursuant to 23:1201.1 is denied as Allied did not establish compliance with 23:1201.1(A) through (E) as required by 23:1201.1(I)(1).
• Allied's request for Modification of the Judgment is granted both to set disability status at Supplemental Earnings Benefits status, payable according to law, and to reduce Nero's benefits by 50% from the date of the filing of the Motion to Modify Judgment or March 14, 2016, pursuant to 23:1226(B)(3)(c).
As a final comment, the WCJ needs to mention that Nero was not a credible witness. The cross examination and impeachment by defense counsel was well done and Nero attempted to evade answering any number of questions. The WCJ made contemporaneous notes of Nero moving forward and back freely while in the witness chair. The WCJ believes he almost reached the standpoint of violation of 23:1208 while on the stand, but it fits more comfortably as a credibility assessment. While there is no question that Nero suffered a significant event, he recovered quite well with very little lasting damage, as demonstrated, in part, by Dr. Duhon's re-certification of his CDL license approximately 11 months after the accident and Dr. Holland's release 15 months post-injury. He was very fortunate. However, the defendant's reliance solely on the opinion of their own doctor, Dr. Bernard, is not sufficient to establish an ability to return to his old job, and certainly doesn't establish the availability of that job, or any other job. Claimant has obstructed vocational rehabilitation, but still some evidence of job availability is necessary to completely terminate benefits. The current evidence is not sufficient to relieve Allied from payment of supplemental earnings benefits.

Mr. Nero appeals this ruling. Allied answered the appeal and asserts that the WCJ erred in not terminating Mr. Nero's SEBs retroactive to June 23, 2015, the last date on which Mr. Nero was cleared to return to work, that the WCJ erred in not imposing sanctions against Mr. Nero's attorney for his attempts to thwart the vocational rehabilitation process, and that the WCJ erred in finding that Mr. Nero did not commit fraud pursuant to La.R.S. 23:1208. We will first address Mr. Nero's assignments of error.

ASSIGNMENTS OF ERROR

Mr. Nero assigns as error:

1. The workers' compensation judge erred in changing Mr. Nero's weekly indemnity benefits to supplemental earnings benefits.
2. The workers' compensation judge erred in failing to grant the motion to review the quality of services of the vocational counselor.
3. The workers' compensation judge legally erred in sustaining objections raised by Allied Waste to questions that were relevant to the issues at the hearing.
4. The workers' compensation judge erred in ordering Mr. Nero's weekly benefits reduced by 50% for failure to cooperate with vocational rehabilitation.

ANALYSIS

Modification of the compensation award

Louisiana Revised Statutes 23:1310.8(B) provides for the continuing jurisdiction of the WCJ to review and modify a compensation award:

Upon the motion of any party in interest, on the ground of a change in conditions, the workers' compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers' Compensation Act, and shall state his conclusions of fact and rulings of law, and the assistant secretary shall immediately send to the parties a copy of the award.

Mr. Nero argues:

To satisfy LSA R.S. 23:1310.8 in this case, the employer must show that there has been an improvement in Mr. Nero's condition since the 2010 judgment. The burden of proof is on Allied Waste. Mr. Nero has no burden until his employer proves that there has been a change in Mr. Nero's physical condition since the 2010 judgment. Furthermore, there must be a significant change, Jackson [v. Iberia Parish Gov't , 01-925 (La.App. 3 Cir. 3/20/02), 813 So.2d 589, writ denied , 02-1075 (La. 6/14/02), 817 So.2d 1159 ]. Even if the original judg[ment] in this case was incorrectly granted, that fact will not provide a basis to show a change in conditions. Allied Waste would either have to allege and prove fraud to relitigate the 2010 judgment, Truitt [v. Temp Staffers , 04-590 (La.App. 1 Cir. 4/6/05), 915 So.2d 786, writ denied , 05-1162 (La. 6/24/05), 904 So.2d 742 ]. Allied Waste has done neither.

We disagree with Mr. Nero's contentions. This court recently visited the burden of proof required by La.R.S. 23:1310.8 in Mouton v. Walgreen Co. , 17-1025 (La.App. 3 Cir. 5/2/18), 246 So.3d 590, writ denied , 18-1147 (La. 10/15/18), 253 So.3d 1297. In Mouton , the WCJ granted a motion to modify an award of TTD benefits, and the plaintiff, as in this case, argued that the employer had not carried its burden of proof. In a scholarly analysis, the Mouton panel discussed the interplay between La.R.S. 23:1310.8 and La.R.S. 23:1221, which governs the award of compensation:

Louisiana Revised Statutes 23:1221(1)(a) provides that "[f]or any injury producing temporary total disability of an employee to engage in any self-employment or occupation for wages," the injured employee shall receive TTDs "during the period of such disability." The statute provides, however, that such benefits "shall cease when the physical condition of the employee has resolved itself to the point that a reasonably reliable determination of the extent of disability of the employee may be made and the employee's physical condition has improved to the point that continued, regular treatment by a physician is not required." La.R.S. 23:1221(1)(d). "Upon reaching maximum medical improvement, an injured worker who is able to return to work, even in pain, is no longer eligible for TTD benefits, but instead is relegated to SEB benefits if he is unable to earn 90% of his pre-accident wages." [ Numa C. Hero & Son v. Leleux , 15-305 (La.App. 3 Cir. 10/28/15), 178 So.3d 595,] 600. Nevertheless, the right to receive SEBs "shall in no event exceed a maximum of five hundred twenty weeks, but shall terminate." La.R.S. 23:1221(3)(d)....
....
Claimant submits that Walgreens must show that her condition has improved since the original judgment was rendered. She contends that her having reached MMI is not a "change in condition" sufficient to allow Walgreens to modify her benefits under La.R.S. 23:1310.8 and that the February 23, 2017 hearing "was nothing more than a retrial of the 2007 trial with the same evidence, but a different workers' compensation judge." Claimant points out that the evidence shows that she continues to treat with Dr. Hodges and that as late as January 2017, she was referred to a Dr. Joseph Gillespie for C-Facet Injections. Moreover, Claimant insists that her being at MMI demonstrates that her condition has worsened, not improved.
Claimant's belief that Walgreens had to show an improvement in her condition is dispelled by the language of La.R.S. 23:1310.8(B) which allows a WCJ to "make an award ending, diminishing, or increasing the compensation previously awarded." Because the legislature provided a mechanism for a WCJ to increase the amount of compensation to a claimant, it must have contemplated situations where a claimant's condition would have diminished so as to entitle that claimant to a higher amount of compensation.
....
"[W]hen the claimant no longer requires treatment and his physical condition has stabilized, an award for TTD benefits is no longer appropriate and a determination regarding the extent of the Claimant's disability must be made." Numa Hero , 178 So.3d at 600 (quoting Navarre v. K-Mart, 01-753, p. 6 (La.App. 5 Cir. 11/27/01), 803 So.2d 206, 209 ). Here, the medical evidence reveals that Claimant's condition has stabilized, which was not the case when the original judgment was rendered in 2007. Although she continues to receive pain management, which includes medications and facet joint injections, we note that the WCJ in Numa Hero modified the benefits of the claimant from TTDs to SEBs where his "condition [w]as no longer 'temporary' but had plateaued into a chronic pain situation ... treated with regular 3[-]month visits to Dr. Hodges." Id.

Mouton , 246 So.3d at 593-96 (footnote omitted). As the reasons given by the WCJ in the present matter clearly establishes, the same situation is present in this matter. Mr. Nero's condition has clearly stabilized, and, unlike the claimant in Mouton , he no longer requires treatment, which makes him no longer eligible for TTD benefits. See La.R.S. 23:1221(1)(d). "Temporary total disability" literally means the disability is temporary ; once the condition is no longer temporary or no longer a disability, a change in conditions has occurred. See Numa C. Hero & Son , 178 So.3d 595. This assignment of error lacks merit.

Mr. Nero's motion to review the quality of vocational rehabilitation services

The Louisiana Legislature has enacted measures to ensure that injured workers are returned to the workforce with deliberate expedition. Among these measures is La.R.S. 23:1226, entitled, "Rehabilitation of injured employees." An injured employee is entitled to vocational rehabilitation services from a licensed vocational rehabilitation counselor approved by the Office of Workers' Compensation. La.R.S. 23:1226(A) and (B)(2). These services must be rendered in accordance with the Code of Professional Ethics for Licensed Rehabilitation Counselors (the Code). Id. These services are the responsibility of the employer to procure. La.R.S. 23:1226(B)(3)(a).

Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The employee shall have a right to an expedited summary proceeding pursuant to R.S. 23:1201.1(K)(8).

Id. Ordinarily, one might assume that the employee seeking to review the need for vocational rehabilitation services is asking that the employer provide those services, not avoid them; such is not the case here. And the legislature has made provision for employees who seek to thwart the vocational rehabilitation process:

Upon refusal by the employee, the employer or payor may reduce weekly compensation, including supplemental earnings benefits pursuant to R.S. 23:1221(3), by fifty percent for each week of the period of refusal. Reduction of benefits by the employer or payor shall be made in accordance with the provisions of R.S. 23:1201.1(A) through (E).

La.R.S. 23:1226(B)(3)(c). In the present matter, Allied reduced and terminated Mr. Nero's benefits; however, it failed to do so in accordance with La.R.S. 23:1201.1(A) through (E), which resulted in it being assessed with penalties and attorney fees. It thereafter filed its motion for a preliminary determination and to reduce and terminate Mr. Nero's benefits.

The imposition of "conditions" under which an employee seeks to control the vocational rehabilitation process has occupied the attention of this court for too long. In Crain Brothers, 842 So.2d 523, a panel of this court endorsed a list of such conditions, all of which Mr. Nero sought to impose on Ms. Davidson's services, and then some.

However, the Louisiana Supreme Court, in Hargrave v. State , 12-341 (La. 10/16/12), 100 So.3d 786, reviewed a decision of this court that again endorsed these conditions. See Hargrave v. State , 11-836 (La.App. 3 Cir. 12/21/11), 80 So.3d 1198. The supreme court reversed.

The court pointed out that, since Crain Brothers , the legislature has amended La.R.S. 23:1226 in significant ways that obviate the need for such conditions. Among these amendments was the requirement that the employer be responsible for the selection of a counselor, that the counselor be licensed, that the employee is allowed to file a claim to review the quality of the services, and that the employer can compel the employee's cooperation in the rehabilitation process. The court flatly held:

[T]here is no requirement in La.Rev.Stat. 23:1226 that a vocational rehabilitation counselor must agree to certain conditions prior to providing vocational rehabilitation services. Certainly absent any showing by the claimant that there is an actual dispute as to the provision of services or the quality thereof, requiring the counselor to abide by such conditions, even if intended as a prophylactic measure, necessarily resorts to speculation and conjecture as to the future actions of the counselor. Accordingly, the OWC hearing officer and the court of appeal erred in requiring the vocational rehabilitation counselor to agree to certain conditions prior to the performance of rehabilitation services in the absence of an evidentiary showing that there was an actual dispute as to the quality of the services of the vocational rehabilitation counselor or the necessity for such services.

Hargrave , 100 So.3d at 793.

Hargrave did not end the practice of trying to impose these conditions. In Allen v. Affordable Home Furnishings , 14-338 (La.App. 3 Cir. 10/1/14), 149 So.3d 836, writ denied , 14-2285 (La. 1/16/15), 157 So.3d 1132, the employer selected a vocational rehabilitation counselor who, upon arriving at counsel's office, was presented with a list of conditions before she was allowed to interview the employee. She indicated on the document that she elected not to sign the conditions, indicating that she would "need more time." Id at 838. She testified that it was her understanding that she would not be allowed to interview his client.

The employer sought reduction of the employee's benefits. At the hearing, the employee argued that he was not refusing rehabilitation. The WCJ disagreed because, as the counselor testified, she was told that she would not be allowed to meet with the employee unless she signed the document. The employee's benefits were reduced, and he appealed.

This court held (emphasis added), "[S]ince the amendments, a claimant has a means of redress when a rehabilitation counselor does not fulfill the statutory mandate. However, a record of abuse must first be made before a remedy can be fashioned by the WCJ. Therefore, conditions may not be imposed on rehabilitation in advance of the provision of services. " Id. at 840.

Allen holds other similarities to the case at bar. The employee in Allen argued on appeal that the WCJ erred in sustaining the employer's objections to questions posed to the counselor "regarding when she might sign a document and what a client might demand of her as a counselor."

Id. The exact situation presents itself in this case and forms the basis for Mr. Nero's third assignment of error. In the present case, the WCJ sustained Allied's objections to relevancy because Mr. Nero refused vocational rehabilitation services. In other words, there was no dispute before vocational rehabilitation services were rendered because Ms. Davidson was not allowed to perform them. We reach the same result as our colleagues in Allen . We find no error in the WCJ's evidentiary ruling. Mr. Nero argues that there was a bona fide dispute in this case because Ms. Davidson was in violation of Rule 2.6 of the Code because she refused to sign the conditions. Rule 2.6 states:

Licensed rehabilitation counselors will honor the rights of clients to consent to participate and the right to make decisions with regard to rehabilitation services. They will inform the clients or their legal representative, using language that is reasonably understandable to the client and/or legal representative, of factors that may affect the clients' decision to take part in rehabilitation services, and they will obtain written consents once the clients or their legal representatives are fully informed of these factors. Licensed rehabilitation counselors who work with minors or other persons who are unable to give informed, voluntary consent will take special care to protect the interests of their clients.

Rule 2.6 imposes on the counselor the obligation to obtain consent from their clients "once the clients... are fully informed" of the factors that may affect the clients' right to participate in the rehabilitation process. This language presupposes that an actual discussion has taken place with the client. The basis of this "dispute" was Ms. Davidson's refusal to sign the conditions, many of which were not intended to inform Mr. Nero of any factors that might influence his decision to participate in the rehabilitation process; a process he chooses to not participate in at the peril of his continued benefits, per La.R.S. 23:1226(B)(3)(c). The questions the WCJ sustained Allied's objections to were irrelevant. To hold otherwise would negate the holdings in Hargrave , 100 So.3d 786, and Allen , 149 So.3d 836. It cannot be said on the one hand, "[T]he OWC hearing officer and the court of appeal erred in requiring the vocational rehabilitation counselor to agree to certain conditions prior to the performance of rehabilitation services in the absence of an...actual dispute[,]" and on the other allow the refusal to agree to those conditions to form the basis of a dispute. Hargrave , 100 So.3d at 793. The WCJ did not err in denying Mr. Nero's motion to review the quality of services provided by Ms. Davidson.

Was the reduction of Mr. Nero's benefits appropriate?

Mr. Nero's fourth assignment of error asserts that the WCJ erred in reducing his benefits. As cited above, the refusal to cooperate in the vocational rehabilitation process may result in the reduction of the employee's benefits by fifty percent. La.R.S. 23:1226(B)(3)(c). Ms. Davidson wrote counsel for Mr. Nero and advised that she would not sign the conditions. He wrote back and advised that she would not be meeting with Mr. Nero until she did, in defiant opposition to the clear expressions of the Louisiana Supreme Court in Hargrave , 100 So.3d at 876, and of this court in Allen , 149 So.3d 836. We hold that attempting to impose conditions on the vocational rehabilitation counselor prior to any services being rendered and in the absence of a bona fide dispute over the need for vocational rehabilitation services constitutes refusal to cooperate in the vocational rehabilitation process. This assignment of error lacks merit.

Exclusion of evidence

In his examination of Ms. Davidson, Mr. Nero's counsel was precluded, after several objections by Allied's counsel, from questioning her further on whether hypothetical situations would represent violations of the Code. The WCJ sustained the objections on the grounds that Mr. Nero had declined Ms. Davidson's services.

We agree that the questions were irrelevant. "Clients," under the code, are "defined in the Code as individuals with disabilities who are receiving services from licensed rehabilitation counselors." La.Admin.Code 46:LXXXVI.1600, 1602(A) (emphasis added). Given that Mr. Nero declined Ms. Davidson's services, it would not have been possible for her to have violated Rule 2.6, under which she owed an obligation to a "client." La.Admin.Code 46:LXXXVI.1602(A)(6). We find no error in the WCJ's ruling.

The WCJ's judgment as it relates to Mr. Nero's assignments of error is affirmed. We now turn to Allied's assignments of error.

Termination of SEBs

Allied argues that SEBs should be terminated retroactive to June 2015, the most recent date that Dr. Bernard opined that Mr. Nero was able to work. Allied asserts that the record is devoid of any evidence showing that Mr. Nero is unable to return to work. Mr. Nero has cited the court to no such evidence-and, during argument before this court, his attorney refused to answer a question about whether any evidence shows that his client could return to work.

The WCJ held that Allied's reliance solely upon Dr. Bernard's opinion was misplaced and that Allied was required to prove job availability in order to completely terminate SEBs. The WCJ's decision that an employee remains eligible for SEBs is reviewed under the manifest error standard, under which the finder of fact's determinations of issues of fact may only be reversed if the record, taken as a whole, reveals that the determination lacks a reasonable basis. Poissenot v. St. Bernard Parish Sheriff's Office , 09-2793 (La. 1/9/11), 56 So.3d 170. A multi-factorial analysis is employed to determine SEB eligibility, including job availability "in the employee's or employer's community or reasonable geographic region," jobs actually "offered or tendered by the employer or any other employer," the employee's age, education or training, and work history. La.R.S. 23:1221(3)(c)(i). SEBs are not solely dependent upon the employee's release to return to work; they also depend upon job availability, and this factor was not proven at the hearing. Even were this case not one that involved an employer attempting to terminate benefits, the burden of proof in SEB eligibility rests on the employer to prove the existence of suitable employment, the wages the employee can earn in that employment, and the availability of an actual position for the particular job. See Doane v. Omni Royal Orleans Hotel , 16-144 (La.App. 4 Cir. 10/26/16), 204 So.3d 615.

The WCJ found that Allied failed to prove job availability. This factual finding is reviewed under the manifest error standard. Poissenot , 56 So.3d 170. That Allied was unable to introduce evidence of job availability is explained by Mr. Nero's intransigence against participating in the vocational rehabilitation process. It remains Allied's burden to prove job availability, and we find no error in the WCJ's ruling that Allied did not carry its burden of proof.

Forfeiture of benefits and restitution

Louisiana Revised Statutes 23:1208 makes it unlawful for any person to make a willfully false statement for the purpose of obtaining or defeating any workers' compensation benefit or payment. The statute provides for criminal and civil penalties, including restitution. Further, any employee violating La.R.S. 23:1208"shall , upon determination by workers' compensation judge, forfeit any right to compensation benefits[.]" (Emphasis added). La.R.S. 23:1208(E). This court very recently summarized how it reviews decisions regarding forfeiture:

A decision to impose or deny forfeiture under La.R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Serv. Dist. Hosp. , 41,957 (La.App. 2 Cir. 3/7/07), 954 So.2d 207, writ denied , 07-720 (La. 5/18/07), 957 So.2d 155. To reverse a fact finder's determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the trial court's finding and (2) the court must determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Stobart v. State, Dep't of Transp. and Dev. , 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the fact finder was right or wrong, but whether its conclusion was reasonable. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Reeder v. Hardtner Med. Ctr. , 17-1028, p. 6 (La.App. 3 Cir. 5/2/18), 244 So.3d 1244, 1248, writ denied , 18-917 (La. 9/28/18), 253 So.3d 153.

Allied argues that Mr. Nero violated La.R.S. 23:1208 when he testified at the hearing regarding a number of activities he was not able to undertake, such as hiking, hunting, climbing steps, and helping remediate flood damage at his home in 2016. He lacked the foresight to anticipate the use of his many social media postings depicting him doing all those things. The WCJ characterized Mr. Nero's testimony as having "almost reached the standpoint of violation of [La.R.S.] 23:1208," but that "it fits more comfortably as a credibility assessment."

The employer bears the burden of proving every element necessary to prove a violation of La.R.S. 23:1208 : "(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." Hodges v. Golden Nugget Lake Charles, LLC , 17-936, p. 3 (La.App. 3 Cir. 3/7/18), 242 So.3d 654, 659. Elements of Mr. Nero's testimony were demonstrably false, and the WCJ noted this. Mr. Nero explained these as lapses of memory. The WCJ apparently accepted that explanation and determined that Allied had not carried its burden of proof. The standard of review does not allow us to reverse that finding if a reasonable basis exists in the record. At the very least, we are constrained to find that a reasonable basis exists in the record for the proposition that the statements were not willful, even if we would have found differently. We are forced to conclude that this assignment of error lacks merit.

Allied's motion for sanctions

Allied argues that Mr. Nero's counsel, Mr. Miller, should be sanctioned for his refusal to allow Ms. Davidson to interview Mr. Nero without first signing the form containing the Crain Bros. conditions. Allied argues that this court should find Mr. Miller in constructive contempt, citing La.R.S. 23:1310.7, which reads in pertinent part:

A. A workers' compensation judge shall have the power to enforce any order or judgment he shall deem proper which is issued pursuant to the powers and jurisdiction provided for in this Chapter and the Constitution of Louisiana. This power shall not include the authority to order a person confined.
B. (1) Direct contempt in a workers' compensation proceeding shall be as defined in Louisiana Code of Civil Procedure Article 222, except that it shall be committed before or in response to a subpoena or summons of a workers' compensation judge instead of the court. In a case of direct contempt, the workers' compensation judge may assess a civil fine of up to five hundred dollars for each such contempt violation which shall be payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation.
(2) Constructive contempt in a workers' compensation proceeding shall be as defined in Louisiana Code of Civil Procedure Article 224, except that it shall be concerning the workers' compensation judge and hearing procedures instead of the court. In a case of constructive contempt, the workers' compensation judge may assess a civil fine of up to five hundred dollars for each such contempt violation which shall be payable to the Kids Chance Scholarship Fund, Louisiana Bar Foundation.

Regarding constructive contempt, this court has said:

Pursuant to our Code of Civil procedure, constructive contempt is "[w]ilful disobedience of any lawful judgment, order, mandate, writ, or process of the court." La.Code Civ.P. art. 224(2). "[A] finding that a person wilfully [sic] disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) must be based on a finding that the accused violated an order of the court 'intentionally, knowingly, and purposefully, without justifiable excuse.' " Lang v. Asten, Inc., 05-1119, p. 1 (La. 1/13/06), 918 So.2d 453, 454 (quoting Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 98-0990 (La. 5/29/98), 720 So.2d 343, cert. denied sub nom. Polaris Ins. Co., Ltd. v. Brunet, 525 U.S. 1104, 119 S.Ct. 869, 142 L.Ed.2d 771 (1999) ).

LeBlanc v. LeBlanc , 06-1307, p. 5 (La.App. 3 Cir. 3/7/07), 953 So.2d 115, 120. A finding of contempt, either direct or constructive, presupposes the willful, intentional, knowing, purposeful, and unjustifiable disobedience of an order in the case in which contempt is considered. To hold otherwise would significantly deter a "nonfrivolous argument for the extension, modification, or reversal of existing law" allowed by La.Code Civ.P. art. 863(B)(2). Allied's motion for sanctions is denied.

The rulings of the WCJ on converting Mr. Nero's benefits from TTD to SEB, on reducing the SEBs for his refusal to participate in the vocational rehabilitation process, on limiting Mr. Nero's examination of Ms. Davidson, on not terminating Mr. Nero's SEBs, and on not sanctioning Mr. Nero's counsel are affirmed. Allied's motion for sanctions is denied. All costs of this proceeding are taxed to Plaintiff/Appellant, Ronald Nero.

JUDGMENT AFFIRMED. MOTION FOR SANCTIONS DENIED.

      Allied disputes whether this award was in the nature of TTD.

      The form set forth the so-called Crain Brothers conditions, which were approved by a panel of this court in Crain Brothers, Inc. v. Richard , 02-1342 (La.App. 3 Cir. 4/9/03), 842 So.2d 523. These conditions, as will be discussed, were rejected as a precedent to initiating vocational rehabilitation services in Hargrave v. State , 12-341 (La. 10/16/12), 100 So.3d 786. The form purported to have been issued by Mr. Nero himself, but was replete with references to "my client," indicating that the conditions were not keeping Mr. Nero informed or copied with correspondence, but with keeping his attorney informed and copied on all correspondence, including correspondence to and from Allied's attorney.

      Commercial Driver's License

      Benign Prostatic Hyperplasia

      Hypertension

      Coronary Arteria Disease

      The code may be found at La.Admin.Code 46:LXXXVI.1600 -1611.

      The egregiousness of this violation is exacerbated by the fact that Mr. Nero's counsel also represented Mr. Hargrave and Mr. Allen in their respective cases, which have been cited extensively herein.


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    Diedra MEREDITH v. I AM MUSIC, LLC and Amos Singleton
    NO. 2018-CA-0659
    Court of Appeal of Louisiana, First Circuit.
    February 13, 2019
    Richard P. Bullock, BULLOCK & HAM, A PLC, 619 Barracks Street, New Orleans, LA 70116, COUNSEL FOR PLAINTIFF/APPELLEE
    Robert N. Aguiluz, 8702 Jefferson Highway, Suite B, Baton Rouge, LA 70809, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown )
   JUDGE SANDRA CABRINA JENKINS

Defendants I Am Music, LLC ("IAM") and Amos Singleton (collectively, "Appellants") appeal the trial court's May 31, 2018 Judgment granting a preliminary injunction in favor of appellee Diedra Meredith, and ordering the Appellants to deliver to Ms. Meredith computer files containing 16 songs that were recorded at her live concert on September 16, 2017. The Judgment also ordered that Ms. Meredith furnish security for the issuance of the preliminary injunction in the amount of $ 1,000.00. Appellants timely appealed. We find that the trial court erred in granting Ms. Meredith a mandatory injunction without a full evidentiary hearing where the standard of proof is by a preponderance of the evidence. Accordingly, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On March 28, 2018, Ms. Meredith filed a verified Petition for Breach of Contract, Damages, and Preliminary and Permanent Injunction (the "Injunction Suit") against Appellants. Ms. Meredith asserted that she was a recording artist who performed under the name "Deepa Soul." Ms. Meredith alleged that on or about June 2016, she entered into a contract with Appellants whereby Ms. Meredith agreed to perform professional services for Appellants -- including but not limited to performing web-based services, branding/marketing, creating an online business plan, and producing a photo shoot -- in exchange for Appellants' agreement to assist in the production of Ms. Meredith's live album to be recorded at a concert at the Carver Theater in New Orleans.

Ms. Meredith contends that, although she performed her agreed-upon services for Mr. Singleton, he failed to timely appear at the September 14, 2017 rehearsal for the live concert. She claims that because of Mr. Singleton's late appearance, the entire rehearsal could not be completed in time to record certain tracks to be used in the live recording. According to Ms. Meredith, she then retained the services of a sound engineer, Orlando Henry, to manage the recordings of her live concert on September 16, 2017. Ms. Meredith contends that Mr. Singleton also failed to timely appear at the live concert, causing a delay. Ms. Meredith states that after her live concert, she delivered the original recordings of the concert to Mr. Singleton so that he could assist in completing the production of her live album. She claims that on September 26, 2017, Mr. Singleton repudiated the contract and demanded payment for his services in producing the album. Ms. Meredith states that she had to retain two background singers, Melaney Batiste and Jai Reed, who recorded over-dub sessions with Mr. Singleton. According to Ms. Meredith, she requested that Mr. Singleton return the "Pro Tools HD" sessions to her so that she could complete recording. To avoid additional delay and damages, Ms. Meredith asked Mr. Singleton to "name his price." Mr. Singleton did not respond, and continued to work on the production of the album.

In the Injunction Suit, Ms. Meredith seeks damages, as well as a "preliminary mandatory injunction ordering [Appellants] to turn over immediate possession of the Pro Tools HD sessions computer files of all 16 songs from the concert by Deepa Soul, including background vocals for Melaney Batiste and Jai Reid." Ms. Meredith also seeks a permanent injunction confirming the preliminary injunction and her ownership of the recordings.

On April 13, 2018, the trial court signed an order setting a hearing on the preliminary injunction for May 11, 2018. The order stated that the matter would be heard upon the verified pleadings and/or supporting affidavits, pursuant to La. C.C.P. 3609. The trial court ordered Ms. Meredith to file her affidavits not later than 72 hours prior to the hearing, and ordered Appellants to file their affidavits not less than 24 hours prior to the hearing. None of the parties filed affidavits.

Appellants were personally served with the Injunction Suit and the order setting a hearing on April 27, 2018. Appellants' attorney did not appear at the injunction hearing. The trial court advised Mr. Singleton, a non-attorney, that he could not represent IAM. Mr. Singleton was sworn in by the court, and testified on his own behalf. Although Ms. Meredith was present, she did not testify, relying on upon her verified petition.

On May 31, 2018, the trial court granted a preliminary injunction in favor of Ms. Meredith, ordering Appellants to turn over the computer files to her within five days. When Appellants failed to do so, Ms. Meredith filed a Motion for Contempt. Appellants timely appealed.

DISCUSSION

Standard of Review

In general, the standard of review for a preliminary injunction is whether the trial court abused its discretion. Rand v. City of New Orleans , 12-0348, p. 3 (La. App. 4 Cir. 12/13/12), 125 So.3d 476, 479. "That broad standard is, of course, based upon a conclusion that the trial court 'committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.' " Id. , 12-0348, pp. 3-4 (quoting Yokum v. Pat O'Brien's Bar, Inc. , 12-0217, p. 7 (La. App. 4 Cir. 8/15/12), 99 So.3d 74, 80 ). "[W]here errors of law are involved, the appropriate standard of review is de novo ." Vieux Carre Comm'n Found. v. City of New Orleans , 17-0527, p. 4 (La. App. 4 Cir. 1/31/l8), --- So.3d ----, ----, 2018 WL 651668, *8, writ denied , 18-0248 (La. 2/19/18), 237 So.3d 514.

Prohibitory vs. Mandatory Injunctions

The primary issue on appeal is whether the trial court properly issued a preliminary injunction as a matter of law. " 'A preliminary injunction is an interlocutory procedural device designed to preserve the status quo as it exists between the parties, pending trial on the merits.' " Faubourg Marigny Improvement Ass'n, Inc. v. City of New Orleans , 15-1308, p. 12 (La. App. 4 Cir. 5/25/16), 195 So.3d 606, 615 (quoting Smith v. Brumfield , 13-1171, p.5 (La. App. 4 Cir. 1/15/14), 133 So.3d 70, 74 ). Generally, the requirements to prevail at a hearing for a preliminary injunction are a showing that: (1) the injury, loss or damage the mover will suffer if the injunction does not issue may be irreparable; (2) the mover is entitled to the relief sought; and (3) the mover is likely to prevail on the merits of the case. Denta-Max v. Maxicare Louisiana, Inc. , 95-2128, p. 3 (La. App. 4 Cir. 3/14/96), 671 So.2d 995, 996-97.

Louisiana law makes an important distinction between a "prohibitory injunction" and a "mandatory injunction." Kern v. Kern , 11-0915, p. 6 (La. App. 4 Cir. 2/29/12), 85 So.3d 778, 781. "A 'prohibitory injunction' is one that seeks to restrain conduct; a 'mandatory injunction,' on the other hand, commands the doing of some action." Constr. Diva, L.L.C. v. New Orleans Aviation Bd. , 16-0566, p. 8 (La. App. 4 Cir. 12/14/16), 206 So.3d 1029, 1035 n.4. The level of proof required and the procedure used to satisfy these three elements differs depending on whether the preliminary injunction sought is a prohibitory injunction or a mandatory injunction. Denta-Max , 95-218, p. 3, 671 So.2d at 997.

Procedural/Evidentiary Requirements

"[A] prohibitory injunction, which simply preserves the status quo until a full trial on the merits, may be issued on a prima facie showing by the party seeking the injunction." Id. A mandatory injunction, however, has the same basic effect as a permanent injunction, and may not be issued on merely a prima facie showing that the party seeking the injunction can prove the necessary elements. Id. "Instead, the party seeking a mandatory preliminary injunction must show by a preponderance of the evidence at an evidentiary hearing that he is entitled to the preliminary injunction." Id. (citing Bollinger Mach. Shop & Shipyard, Inc. v. U.S. Marine, Inc. , 595 So.2d 756, 759 (La. App. 4th Cir. 1992) ).

Here, the trial court has commanded Appellants to "do something," - i.e., "turn over immediate possession of the Pro Tools HD sessions computer files of all 16 songs from the concert by Deepa Soul, including background vocals for Melaney Batiste and Jai Reid." See Denta-Max , 95-2128, p. 2, 671 So.2d at 996. The injunction at issue in this case, therefore, is a mandatory injunction.

Ms. Meredith, as the party seeking a mandatory injunction, must show by a preponderance of the evidence at an evidentiary hearing, "with live evidence and stipulations of fact by the parties," that she is entitled to a mandatory injunction. I.F. v. Admin. of Tulane Educ. Fund , 11-0308, p. 5 (La. App. 4 Cir. 8/24/11), 72 So.3d 462, 465. Ms. Meredith presented only her verified petition. Because a mandatory injunction may only be issued after a full evidentiary hearing where the standard of proof is by a preponderance of the evidence, we find that the trial court erred as a matter of law in granting Ms. Meredith a mandatory injunction based on a verified petition, which has evidentiary effect only in a hearing for a prohibitory injunction. See Faubourg Marigny , 15-1308, p. 18, 195 So.3d at 619 n.7.

CONCLUSION

For the foregoing reasons, we hold that the preliminary injunction issued herein was mandatory, and that the trial court erred in ruling without the benefit of a full evidentiary hearing. The Judgment, therefore, is reversed and this matter is hereby remanded for an evidentiary hearing on Ms. Meredith's request for a mandatory injunction.

REVERSED AND REMANDED

      Based on our disposition of this case, we do not address Appellants' argument that the trial court erred in setting security at $ 1,000.00.


author: Judge Dale N. Atkins

text:
    NOLA EAST, LLC v. Myron SIMS
    NO. 2018-CA-0623
    Court of Appeal of Louisiana, Fourth Circuit.
    February 13, 2019
    Myron G. Simms, Jr., 6700 Woodlands Pkwy., Suite 230, P.O. Box 411, The Woodlands, TX 77382, FOR DEFENDANT/APPELLANT
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins )
   Judge Dale N. Atkins

This is an appeal from a judgment of eviction entered against Mr. Myron Simms in the First City Court of New Orleans. Mr. Simms signed a Lease to live in Magnolia Gardens Apartment # 13 beginning December 26, 2017. He was evicted by a Warrant for Possession of Premises in favor of NOLA East, LLC, the landlord, on June 15, 2018. For the reasons that follow, we reverse and remand for a new trial at which Mr. Simms shall be entitled to offer his defense(s) and supporting evidence.

FACTS AND PROCEDURAL HISTORY

Plaintiff NOLA East, LLC, the landlord/property owner who is operating and doing business as Magnolia Gardens Apartments, filed a Rule for Possession of Premises on May 24, 2018, against Myron Simms due to his failure to pay rent for the month of May 2018.

Mr. Simms asserts on appeal that he did not pay his May rent because the landlord failed to make necessary repairs to his apartment. Mr. Simms states that he informed the landlord of the need for urgent repairs at the end of February 2018, and the landlord conducted an inspection on March 16, 2018, after which the landlord indicated that repairs would be made. Mr. Simms contends that the property manager drafted work-orders to request repairs three times, but the appropriate repairs were never made, and Mr. Simms was not able to live in the unit for approximately a month and a half. Mr. Simms told the property manager at the end of April that he could not live in the unit and he would not be able to continue paying rent if repairs were not made.

Mr. Simms further claims that at the eviction hearing on June 4, 2018, he was not permitted to present any evidence or an affirmative defense regarding the conditions of the apartment. The court evicted Mr. Simms from the premises through a Judgment of Possession in favor of NOLA East signed the same day.

On June 7, 2018, Mr. Simms obtained legal aid counsel who drafted a motion for new trial, arguing that his rent should have abated due to the lack of habitability of his apartment pursuant to La. Civ. Code art. 2693. According to Mr. Simms, the apartment had been uninhabitable since the end of February 2018 because "raw sewage leaks from the ceiling" of the bathroom when his upstairs or next-door neighbor flushed the toilet or took a shower; there was visible mold growing on the ceiling of the bathroom; there was a hole in the bathroom floor; and the unit had a rodent infestation. On June 12, 2018, a couple of days before the new-trial hearing, counsel for Mr. Simms withdrew from representation.

Appearing at the June 14 hearing pro se , Mr. Simms stated that he "was not allowed to speak and defend [him]self" at the June 4 eviction proceeding. He also stated that a number of other residents of Magnolia Gardens had requested a full investigation of the "slum-lord" property and had filed complaints with several governmental agencies and consumer-protection entities. The NOLA East representative stated at the June 14 hearing that she had tried to work out a deal with Mr. Simms' (former) counsel, such that he could pay half the rent at that time and pay the other half the following week, because Mr. Simms historically had been good about paying his rent.

The court denied the motion for new trial from the bench and determined that unsuitable living conditions did not excuse Mr. Simms from paying rent. The next day, June 15, 2018, the court entered a Warrant for Possession of Premises in favor of NOLA East, ordering the eviction of Mr. Simms. Mr. Simms filed a Motion for Appeal on June 15, 2018.

DISCUSSION

Pursuant to La. C.C.P. art. 4907 (B), Mr. Simms timely filed a motion for new trial from the June 4, 2018 judgment of possession and, when his request for a new trial was denied, timely moved for an appeal under La. C.C.P. art. 5002 (B). Mr. Simms, appearing pro se , appeals the judgment "granting rule for possession absolute as entered in the above case on the 4th day of June, 2018." In addressing Mr. Simms' appeal of the June 4, 2018 judgment, we also review the lower court's denial of his motion for new trial and the corresponding entry of a Warrant for Possession of Premises on June 15, 2018. See New Orleans Fire Fighters Pension and Relief Fund v. City of New Orleans , 2017-0320, p. 5 n.12 (La. App. 4 Cir. 3/21/18), 242 So.3d 682, 688 n.12 ("an appellate court may consider interlocutory judgments, such as the denial of a motion for new trial, as part of an unrestricted appeal from a final judgment.").

The standard of review for a judgment of eviction is clearly wrong/manifestly erroneous. Housing Authority of New Orleans v. Haynes , 2014-1349, p. 15 (La. App. 4 Cir. 5/13/15), 172 So.3d 91, 99. "However, if the trial court makes one or more prejudicial legal errors that poisoned the fact-finding process which produced an erroneous result, then, a manifestly erroneous judgment must be reviewed under the de novo standard." 200 Carondelet v. Bickham , 2017-0328, p. 4 (La. App. 4 Cir. 10/25/17), --- So.3d ----, ----, 2017 WL 4803954, p. 2 (unpublished). The applicable standard of review regarding a motion for new trial is whether the trial court abused its discretion. Barham, Warner & Bellamy, L.L.C. v. Strategic Alliance Partners, L.L.C. , 09-1528, p. 6 (La. App. 4 Cir. 5/26/10), 40 So.3d 1149, 1152.

Eviction proceedings are governed by La. C.C.P. arts. 4701 et seq. Under La. C.C.P. art. 4732, a "court shall try the rule and hear any defense which is made ." (Emphasis added). In addition, a new trial may be granted in any case if there are good grounds for doing so, and a new trial "shall be granted when a party has discovered, since the trial, evidence important to the cause which he could not, with due diligence, have obtained before or during the trial." La. C.C.P. arts. 1971 - 1973.

Mr. Simms argues on appeal, and argued at the new-trial hearing, that he did not get his day in court because he was not permitted to present his defenses-that he notified his landlord of the defective conditions several times; that his landlord never made the necessary repairs; and thus his rent should have abated under La. C.C. art. 2693 because the apartment he occupied was uninhabitable.

Indeed, attached to the motion for new trial are photographs of what appear to be moldy ceiling tiles and a hole in the floor in the bathroom, plus an inspection report prepared after the initial hearing on Mr. Simms' eviction on June 4. The inspection report suggests that Mr. Simms' apartment, # 13, had many irregularities, including faulty plumbing in the bathroom and decayed or defective interior surfaces. Although Mr. Simms complained of these conditions at the eviction hearing, there is no indication that he was given an opportunity to present this defense to non-payment of rent, as required by La. C.C.P. art. 4732.

The motion for new trial also reflects that Mr. Simms notified the landlord as early as February 2018 of the substandard conditions of the apartment, including problems in the bathroom related to raw sewerage leaking from the ceiling, mold, and rodents. The pertinent provision of the Lease between Magnolia Gardens and Mr. Simms provides:

16. MAINTENANCE AND REPAIR
C. Tenant agrees to promptly notify Landlord in the event of damage, defect or destruction of the Unit, or the failure of any of Landlord's appliances or mechanical systems, and except for repairs or replacements that are the obligation of Tenant pursuant to Subsection A above, Landlord shall use its best efforts to repair or replace such damaged or defective area, appliance or mechanical system.

Notwithstanding his complaints to the landlord in February, Mr. Simms asserted that he paid rent for the months of March and April 2018, but he vacated the apartment in May after receiving a notice of eviction. In early June, at the time of the City of New Orleans property inspection, the landlord still had not made the necessary repairs.

While Mr. Simms adhered to his obligation to notify the landlord of the defects under the terms of the lease, he asserts that the landlord did not abide by its own obligations or "use its best efforts to replace such damaged or defective area" in accordance with the Lease provisions. La. C.C. art. 2682 describes a lessor's principal obligations as follows:

The lessor is bound:
(1) To deliver the thing to the lessee;
(2) To maintain the thing in a condition suitable for the purpose of which it is leased; and
(3) To protect the lessee's peaceful possession for the duration of the lease.

The lessor has the obligation to maintain the leased premises in a condition fit for its intended use, and to make necessary repairs. La. C.C. art. 2691. "A landlord cannot escape its responsibility to repair defects where it had actual notice of those defects[.]" Ganheart v. Exec. House Apartments , 95-1278, p. 8 (La. App. 4 Cir. 2/15/96), 671 So.2d 525, 530.

The record on appeal also includes the June 6, 2018, City of New Orleans property inspection report, dated after the original eviction proceedings on June 4, 2018. The report lists several violations in Mr. Simms' apartment, such as deteriorated doors and inadequate locking; paint needed in the bathroom; leaking plumbing fixtures in the bathtub; holes at the bath fixtures; and deteriorated or loose plumbing fixtures. The inspection report notes defective conditions in neighboring apartments as well.

La. C.C.P. art. 2164 provides that an "appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." See also Byrd v. Pulmonary Care Specialists, Inc. , 2016-0485, p. 5 (La. App. 1 Cir. 12/22/16), 209 So.3d 192, 195. This Court is therefore authorized "to remand a case to the trial court for proper consideration, where it is necessary to reach a just decision and to prevent a miscarriage of justice." Wegener v. Lafayette Ins. Co. , 2010-0810, p. 19 (La. 3/15/11), 60 So.3d 1220, 1233-34. "Whether a particular case should be remanded is a matter ... vested largely within the court's discretion and depends upon the circumstances of the case." Id. , 60 So.3d at 1234 (citing Alex v. Rayne Concrete Serv. , 2005-1457, p. 20 (La. 1/26/07), 951 So.2d 138, 155 ).

As evidenced by the trial court's comments in the transcript from the hearing on the motion for new trial, Mr. Simms was not given an opportunity at the eviction proceedings to present his defenses and was denied a new trial, despite new evidence in the form of the City of New Orleans inspection report. Given the circumstances of this case, we reverse the trial court's denial of Mr. Simms' motion for new trial, vacate the June 4, 2018 Rule for Possession and the June 15, 2018 Warrant for Possession of Premises, and remand the matter to First City Court for a new trial.

REVERSED AND REMANDED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectfully dissent. I would affirm the judgment of the lower court. I find that the lower court properly held the hearing on the eviction proceedings, and a new trial is not warranted. The lessee, Mr. Simms, failed to proffer the evidence he is now claiming he was not allowed to introduce. Regardless of whether Mr. Simms was allowed to address the habitability of the apartment, those defenses regarding habitability did not relieve him of his obligation to pay rent to the lessor, NOLA East.

"In Louisiana, the lessor has the obligation to maintain the leased premises in a condition fit for its intended use, and to make necessary repairs." KM, Inc. v. Weil Cleaners, Inc. , 50,209, p. 6 (La. App. 2 Cir. 1/13/16), 185 So.3d 112, 117 (citing La. C.C. art. 2691). "If the lessor fails to fulfill this obligation, the law provides the lessee with two options. He can sue for dissolution of the lease agreement and resulting damages, or he can make indispensable repairs himself and deduct a reasonable cost thereof from the rent due." Id. (citing La. C.C. arts. 2693, 2694 ; New Hope Gardens, Ltd. v. Lattin , 530 So.2d 1207, 1210 (La. App. 2d Cir. 1988) ). "A lessee is not justified in retaining possession of the leased premises rent-free without pursuing either of these codal remedies." Id. (citing New Hope Gardens, Ltd. , 530 So.2d at 1210 ). The Louisiana Supreme Court has explicitly held that a "lessee may not anticipate refusal or neglect to make the repairs or withhold rent to apply economic pressure on a lessor." Davilla v. Jones , 436 So.2d 507, 510 (La. 1983).

It is evident from the record that Mr. Simms failed to pursue either of the two codal remedies provided in articles 2693 and 2694. Louisiana law does not permit him to retain possession of the apartment rent-free without availing himself of these codal remedies.

The majority seems to apply the equitable doctrine of judicial control to deny dissolution of the lease for nonpayment of rent. I do not find any case that extends judicial control to the facts before this Court, and I refuse to extend judicial control in the manner put forth by the majority.

"The doctrine of judicial control is an equitable doctrine by which the courts will deny cancellation of the lease when the lessee's breach is of minor importance, is caused by no fault of his own, or is based on a good faith mistake of fact. 429 Bourbon St., LLC v. RMDR Investments, Inc. , 2016-0800, p. 17 (La. App. 4 Cir. 11/15/17), 230 So.3d 256, 267, reh'g denied (11/17/17), writ denied , 2017-02054 (La. 2/2/18), 235 So.3d 1106 (citing Carriere v. Bank of La. , 95-3058 (La. 12/13/96), 702 So.2d 648 ). "Cases which have applied judicial control of leases generally involve circumstances where a lessee had made a good faith error and acted reasonably to correct it." Id. , (quoting KM, Inc. , 50,209 (La. App. 2 Cir. 1/13/16), 185 So.3d 112, 118 ). See also Good v. Saia , 2007-0145, pp. 26-27 (La. App. 4 Cir. 9/12/07), 967 So.2d 1161, 1175-76 (collecting cases applying judicial control in circumstances including postal service delay, relying on incorrect receipt by lessor, and inadvertently tendering third party check for insufficient funds).

The record lacks any evidence of a good faith mistake of fact or that nonpayment of rent was due to circumstances beyond Mr. Simms' control. Withholding rent to put economic pressure on a lessor to make repairs is not a permissible ground for judicial control.

For these reasons, I would affirm the judgment of the district court.

      Mr. Simms was incorrectly identified as "Myron Sims" in the initial filing by NOLA East, LLC.

      Mr. Simms' additional request on appeal for damages related to his alleged personal injuries is not properly before this Court, as that claim was not asserted as a reconventional demand in the lower court, nor did the lower court issue any judgment in conjunction with such allegations. We note, however, that any claims for Mr. Simms' alleged personal injuries, should he choose to assert them, must be brought in a court of proper jurisdiction. "In ... a city court in New Orleans, ... the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed twenty-five thousand dollars." La. C.C.P. art. 4843 (E).

      Although the appellate record includes the transcript from the June 14, 2018 motion for new trial, the record does not include a transcript of the June 4, 2018 eviction proceedings. The plaintiff, NOLA East, LLC, did not file a brief or otherwise appear in this Court to dispute Mr. Simms' representations.

      La. Civil Code Article 2693 provides: "If during the lease the thing requires a repair that cannot be postponed until the end of the lease, the lessor has the right to make that repair even if this causes the lessee to suffer inconvenience or loss of use of the thing. In such a case, the lessee may obtain a reduction or abatement of the rent, or a dissolution of the lease, depending on all of the circumstances, including each party's fault or responsibility for the repair, the length of the repair period, and the extent of the loss of use."

      La. C.C.P. art. 4907 (B) provides: "The delay for applying for a new trial shall be seven days, exclusive of legal holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment." La. C.C.P. art. 5002 (B) provides: "When an application for a new trial is timely filed, ... the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary."

      In Ganheart , 95-1278, p. 8, 671 So.2d at 530, a residential tenant complained of numerous problems, including leaks in the ceiling caused by an upstairs neighbor's dishwasher, which led to extensive water damage and mold. This Court determined that the evidence of "deplorable conditions created by the various plumbing problems ... conclusively shows that defendant was well aware of the problems in plaintiff's apartment and failed to correct them" and that the conditions made the premises "uninhabitable," entitling plaintiff to $ 1500 in damages for mental anguish and inconvenience. See also Smith v. Castro Bros. Corp. , 443 So.2d 660, 661 (La. App. 4th Cir. 1983) (awarding tenants $ 600 in mental anguish damages for the uninhabitability of the leased premises).


author: Judge Paula A. Brown

text:
    FAUBOURG SAINT CHARLES, LLC v. FAUBOURG SAINT CHARLES HOMEOWNERS ASSOCIATION, INC.
    NO. 2018-CA-0806
    Court of Appeal of Louisiana, Fourth Circuit.
    February 20, 2019
    John W. Waters, Jr., David Edward Walle, Esq, BIENVENU FOSTER RYAN & O'BANNON, LLC, 1010 Common Street, Suite 2200, New Orleans, LA 70112--2455, COUNSEL FOR PLAINTIFF/APPELLANT
    Timothy M. Brinks, Gregory Fortier Rouchell, ADAMS & REESE LLP, 701 Poydras Street, Suite 4500, New Orleans, LA 70139, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Paula A. Brown

This case involves a peremptory exception of prescription. Appellant, Faubourg Saint Charles, LLC ("FSC"), filed suit (the "Petition") against Appellee, Faubourg Saint Charles Homeowners Association, Inc. ("HOA"), alleging it was entitled to reimbursement for monies advanced to HOA for the years 2012 through 2016. The district court sustained HOA's peremptory exception of prescription finding that the sums advanced by FSC to HOA before February 27, 2015 were monies lent subject to a three-year prescriptive period. Additionally, the district court denied FSC's oral motion to amend the Petition. FSC appeals the district court's partial final judgment. For the reasons that follow, we affirm the judgment sustaining the exception of prescription, reverse the judgment denying the amendment, and remand the matter for further proceedings consistent with this opinion.

PROCEDURAL HISTORY AND FACTS

FSC was the developer of Faubourg Saint Charles Condominiums (the "Condominiums"). Construction began on the Condominiums in 2006. In October 2006, FSC executed and recorded the "Act of Declaration Creating and Establishing the Condominium Regime Faubourg Saint Charles Condominium[s]," and FSC incorporated the HOA in order to assume the operation and management of the Condominiums. The HOA did not become fully functional until the later part of 2016. Before the HOA became functional, FSC operated and managed the Condominiums.

FSC also owned a unit-unit 2-in the Condominiums. In December 2017, HOA successfully sued FSC in Orleans Parish First City Court to collect assessments that FSC owed as the owner of unit 2.

Shortly thereafter, on February 27, 2018, FSC filed the Petition alleging in pertinent part:

6.
Between [HOA's] formation and late 2016, FSC through its owner, Roland von Kurnatowski advanced sums on behalf of [HOA] to maintain the [Condominiums].
7.
When [HOA] were [sic] finally able to take control of the development, FSC had incurred approximately $ 100,388.20 [ ] on behalf of [HOA] to maintain the [Condominiums]. Those expenses exceeded income, and included administrative expense, insurance, office supplies, shipping, telephones and communications, auto expense, utilities including electric, gas, sewer and water, maintenance including contract payroll, materials, equipment and pest control, and a suit against the Sewerage & Water Board for overbilling of services. Those expenses incurred by FSC on behalf of plaintiff, by year, are summarized as follows:
2012 $46,990.49 2013 $38,409.65 2014 $6,861.51 2015 $8,126.55 2016 (Jan. thru May) $9,300.76 __________ Total: $10[9],[6]88.20
* * *
8.
[HOA] is obligated to FSC for the foregoing and any other sums advanced to operate and maintain [the Condominiums] for [HOA].

Attached to the Petition were FSC's profit and loss statements for the years 2012 through 2016.

In response, HOA filed a peremptory exception of prescription (the "Exception"). HOA alleged FSC's claims for "money lent" to HOA before February 27, 2015 had prescribed pursuant to the three-year prescriptive period of La. C.C. art. 3494.

FSC opposed the Exception, arguing that its suit was for an accounting of expenses advanced on behalf of the HOA and breach of contract subject to the ten-year prescriptive period of La. C.C. art. 3499. FSC, however, did not seek to supplement or amend its Petition.

A trial on the Exception was held on June 15, 2018. No evidence was introduced. The district court sustained the Exception, finding the cause of action asserted by FSC against HOA was for money lent subject to a three-year prescriptive period, and the claims for money lent before February 27, 2015 had prescribed and were dismissed with prejudice. FSC then orally moved to amend the Petition to allege an oral contract between FSC and HOA, or other alternatives. The district court denied the request. A judgment was issued by the district court on June 19, 2018.

This appeal follows.

DISCUSSION

FSC assigns two errors: the district court erred by granting the Exception; and the district court erred in refusing to allow FSC an opportunity to amend the Petition as required by La. C.C.P. arts. 933(B) and 934. We will discuss each assignment of error in turn.

Exception of Prescription

The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. Born v. City of Slidell , 15-0136, p. 8 (La. 10/14/15), 180 So.3d 1227, 1232 (citing Fishbein v. State of La. through Louisiana State University Health Sciences Center , 04-C-2482, p. 6 (La. 4/12/05), 898 So.2d 1260, 1265 ). The burden of proof is on the party pleading prescription; however, if prescription is evident on the face of the pleadings, the burden of proof shifts to the plaintiff to show the action has not prescribed. See Metairie III v. Poche' Const., Inc. , 10-0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449 ; Ivy Rest. New Orleans, LLC v. Torre , 16-0777, p. 5 (La. App. 4 Cir. 2/1/17), 211 So.3d 676, 680.

Evidence may be introduced at the trial of a peremptory exception of prescription. Albe v. City of New Orleans , 14-0186, p. 6 (La. App. 4 Cir. 9/17/14), 150 So.3d 361, 366 (citing La. C.C.P. art. 931). When no evidence is introduced at the trial of the peremptory exception for prescription, a de novo standard is applied, and the judgment is reviewed to determine whether the trial court's decision was legally correct. See Wells Fargo Fin. Louisiana, Inc. v. Galloway , 17-0413, p. 8 (La. App. 4 Cir. 11/15/17), 231 So.3d 793, 800 (citation omitted). In this context, " 'the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true.' " Id. (quoting Denoux v. Vessel Mgmt. Servs., Inc. , 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.). The law requires strict construction of the prescription statutes "in favor of the claim that is said to be extinguished." Coston v. Seo , 12-0216, p. 8 (La. App. 4 Cir. 8/15/12), 99 So.3d 83, 88 (citations omitted).

With these precepts in mind, we turn to our de novo review.

FSC asserts that the district court improperly applied the three-year prescriptive period of La. C.C. art. 3494 for an action on money lent; rather, the district court should have applied the ten-year prescription period for personal actions codified in La. C.C. art. 3499. FSC urges the Petition sets forth three possible personal actions: (1) a contract action; (2) an accounting action; and/or (3) an agent/principal relationship. Additionally, FSC argues the district court failed to construe the Petition in favor of maintaining FSC's action.

Contract action

FSC argues the relationship between it and HOA was contractual. FSC asserts there was either an oral contract or a contractual relationship established through La. R.S. 9:1123.105. La. R.S. 9:1123.105 provides:

A contract for the maintenance, management, or operation of the condominium property or any lease of recreational or parking facilities entered into by the association while the association is controlled by the developer of the condominium shall be subject to cancellation by the association by vote of not less than a majority of the individual unit owners other than the declarant computed with reference to their respective percentage obligations for common expenses within a one year period immediately following the date on which individual unit owners other than the declarant assume or acquire control of the association.

In sustaining the Exception, the district court stated, "I believe the [FSC] has not alleged the existence of an agreement between the parties requiring any repayment of the alleged advances, much less any agreement to a specific term or time period for repayment." We agree. Although FSC asserted HOA was obligated to FSC for reimbursement of monies advanced, FSC did not allege in the Petition there was an oral or written contract. Moreover, FSC failed to introduce any evidence at trial on the Exception to establish the existence of an agreement or a contract. Furthermore, neither La. R.S. 9:1123.105 nor any other statute set forth in the Louisiana Condominium Act triggers a statutory contractual relationship between the party or entity managing and maintaining a condominium property and a homeowners association.

This claim lacks merit.

Accounting action

FSC asserts its action against HOA is one for an "accounting under the terms of that contract." At the trial, the district court rejected this argument:

In your petition you styled it as a request for reimbursement. So when I look at that, any monies paid, you are asking for it to be paid back, which signals to me it's a loan, not an accounting. So it's not just the scenario. I am looking at what was in the petition.

We agree. FSC did not allege in the Petition or introduce evidence of a request for an accounting under the terms of a contract.

This claim lacks merit.

Agent/principal relationship

FSC contends that its relationship with HOA is one of agent and principal, citing In re Succession of Moore , 97-1668 (La. App. 4 Cir. 4/1/98), 737 So.2d 749, Jones v. Jones , 236 La. 52, 106 So.2d 713 (La. 1958), and Juneau v. Laborde , 228 La. 410, 82 So.2d 693 (La. 1955). While we agree that an agent/principal relationship is governed by the ten-year prescriptive period, FSC failed to plead such a relationship between it and HOA in its Petition, and the record does not evidence such a relationship.

This claim lacks merit.

Construing the Petition

FSC asserts because there is a dispute over FSC's theory of recovery, the district court was required to strictly construe the pleading against prescription. In support, FSC cites La. C.C. P. art. 865 which provides that "[e]very pleading shall be so construed as to do substantial justice."

The district court was constrained by the character of the action pled and the lack of evidence presented. As discussed supra , the Petition does not support FSC's assertion that it was pleading a personal action in contract, in an accounting, or an agent/principal relationship. Moreover, FSC presented no evidence at the trial on the Exception in support of these grounds. Thus, based upon the record, the district court did not err in construing the Petition as an action for money lent.

This claim lacks merit.

Thus, after a de novo review of the record, we find the district court was legally correct in sustaining the Exception.

Amendment of the Petition

In the alternative, FSC asserts the district court erred in failing to give it an opportunity to amend the Petition as required by La. C.C.P. art. 934.

In denying FSC's oral motion to amend the Petition, the district court stated that "[b]ased upon what's already pled, based upon the review of it and what the petition sought, not just here, but in First City Court, I have no choice but to grant the prescription, and I am not going to allow you an opportunity to amend."

The decision to allow a plaintiff to amend a petition under La. C.C.P. art. 934 is within the discretion of the trial court, and will not be disturbed absent manifest error or abuse of discretion. Massiha v. Beahm, 07-0137, p. 4 (La. App. 4 Cir. 8/15/07), 966 So.2d 87, 89 (citing Gates v. Hanover Insurance Co., 218 So.2d 648, 652-53 (La. App. 4 Cir.1969) ).

Louisiana Code Civil Procedure Article 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

In Whitnell v. Menville , 540 So.2d 304, 309 (La. 1989) (citations omitted), the Supreme Court explained that art. 934 has been liberally applied to cases involving prescription:

In numerous cases our courts of appeal have held that where the plaintiff has raised allegations in argument which might be sufficient to overcome a peremptory exception of prescription, he should be allowed time to amend his petition to assert such allegations, even though the claim asserted in the original petition is prescribed on its face.... This rule recognizes this state's liberal approach toward allowing amended pleadings, and promotes the interests of justice.

The Supreme Court noted that "a court may allow time to amend if the new allegations raise the possibility that the claim is not prescribed, even if the ultimate outcome of the prescription issue, once the petition is amended, is uncertain." Id. (citing H & H Boat Rental, Inc. v. Vidos , 225 So.2d at 310-11 ; Craig v. Housing Authority of New Orleans , 482 So.2d 148, 149 (La. App. 4 Cir. 1986) ). Thus, "unless it can be determined in advance of the amendment that the new allegations could have no effect on the prescription issue, opportunity to amend should be allowed." Id. (citing Drane v. City of New Orleans , 328 So.2d 752, 754 n. 2 (La. App. 4 Cir.1976) ).

A review of FSC's Petition indicates FSC alleged that HOA was "obligated" to FSC for sums advanced. FSC raised, at the trial on the Exception, several arguments to support that the ten-year prescriptive period of La. C.C. art. 3499 applied to this obligation. We find, pursuant to La. C.C.P. art. 934, the district court erred in denying FSC's request to amend the Petition.

Accordingly, the district court's ruling denying amendment of the Petition, is reversed and the matter is remanded to the district court to afford FSC the opportunity to amend its Petition.

CONCLUSION

The district court's judgment sustaining the exception of prescription is affirmed, the district court's judgment denying the amendment is reversed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED

      FSC states there was a calculation error, and the correct amount owed by HOA is $ 109,688.20.

      La. C.C. art. 3494(3) provides that an action for money lent is subject to a liberative prescription of three years.

      La. C.C. art. 3499 provides that "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years."

      The district court designated the judgment as a partial final judgment pursuant to La. C.C.P. art. 1915(B), and the district court retained jurisdiction to adjudicate the remaining claims and issues of the case. La. C.C.P. art. 1915(B) provides that "[w]hen a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay."

      La. C.C.P. art. 933 addresses the effect of sustaining a dilatory exception; thus, art. 933 is inapplicable as the exception at issue is a peremptory exception.

      La. C.C.P. art. 931 provides that "[o]n the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition."

      See In re Succession of Moore , 97-1668, p. 11, 737 So.2d at 756 (wherein this Court found that a co-owner's duty to account to other co-owners was a personal obligation governed by a ten-year prescription period); Jones , 236 La. at 75, 106 So.2d at 722 (wherein the Supreme Court found a co-owner was entitled to reimbursement from the estate of the decedent co-owner, whose name the property was in, for expenditures made on his behalf to preserve the co-owned property. The court found the co-owner became the decedent co-owner's agent, and held it was a personal action subject to the ten-year prescriptive period.); and Juneau , 228 La. at 420, 82 So.2d at 696-97 (wherein the Supreme Court held that the applicable prescription period of ten years applied to an action by one co-owner against another co-owner for rents and revenues and was founded on the relationship of principal and agent).

      Additionally, we note that the term "sums advanced" or "advanced sums" is not a term of art used exclusively to mean "money lent." See Franco v. Franco , 04-1381, p. 7 (La. App. 4 Cir. 3/16/05), 900 So.2d 164, 168 (wherein this Court found the defendant's reconventional demand for monies advanced on his brother's behalf was a loan subject to the three-year prescriptive period of La. C.C. art. 3494 ); State, Through Dep't of Highways v. City of Pineville , 403 So.2d 49, 50 (La. 1981) (wherein the Supreme Court found money advanced by the Louisiana Department of Highways to the City of Pineville, Louisiana could be recovered by the Department, despite lack of a valid agreement, under the theory of unjust enrichment [La. C.C. art. 2298 ] or some other form of quasi-contract governed by a ten-year prescriptive period); Jones , 106 So.2d 713 (wherein the Supreme Court held that money advanced by one co-owner on behalf of deceased co-owner was subject to the ten-year prescriptive period relating to personal actions).