author: CHATELAIN, Judge Pro Tempore. GREMILLION, Judge,

text:
    BENTON SPECIALTIES, INC., et al. v. CAJUN WELL SERVICE, INC., et al.
    No. 09-506.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 10, 2010.
    Rehearing Denied March 24, 2010.

      Stan Gauthier, II, Nichole Laborde Romero, Attorneys at Law, Lafayette, Louisiana, for Defendant/Appellant, Cajun Well Service, Inc.
    Susan Nations, Juneau Law Firm, Lafayette, Louisiana, for Plaintiffs/Appellees, Lexington Insurance Company, Benton Specialties, Inc.
    Jonathan C. Augustine, The Augustine Firm, APLC, Baton Rouge, Louisiana, for Defendant/Appellee, Petrosurance Casualty Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, JIMMIE C. PETERS, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

| ,This concursus proceeding involves the disbursement of funds recovered by a workers’ compensation insurer via intervention in the third-party tort litigation of its insured’s employee. The insured employer appeals the trial court’s award of the concursus funds to the insurer and denial of its request for sanctions and award of attorney fees against insurer’s counsel. For the following reasons, the judgment of the trial court is reversed in part, affirmed in part, and rendered.

Facts and Procedural Background

In 1995, Cajun Well Service, Inc. (Cajun) contracted with Petrosurance Casualty Company (Petrosurance) for workers’ compensation coverage. The term of the policy issued by Petrosurance was November 25, 1995, through November 25, 1998, but with one year renewals. The policy included a retrospective premium endorsement which provided for a one-year retrospective rating plan. A retrospective rating plan provides for the calculation of the insured’s premium after the conclusion of the policy period. One factor included in the final premium calculation is claims paid by the insurer. If no claims are made, the insured’s premium is less than it would have been for a standard policy.

On January 24, 1996, Cajun’s employee, Warren Malveaux, sustained a work injury. Mr. Malveaux filed a third-party tort action to recover damages for his injury, and Petrosurance intervened in the action to recover workers’ compensation benefits it had paid with regard to Mr. Malveaux’s injury. In January 2004, Mr. Malveaux and Petrosurance agreed to settle their claims against the tortfeasor and its insurer. Petrosurance had paid $118,000 in medical and indemnity benefits to Mr. Malveaux; |2it accepted $59,000 (the funds) in settlement of its claim. Cajun claimed it was entitled to the funds, and the tort-feasor and its insurer instituted a concur-sus proceeding, naming Cajun and Petro-surance as defendants and depositing the funds into the registry of the court.

In 2005, Petrosurance filed a motion for summary judgment, seeking a judgment awarding it the funds. The basis of its claim was a subrogation clause contained in the policy. The trial court granted judgment as requested, and Cajun appealed. This court reversed the trial court’s judgment, holding:

This is a case of first impression for this court. There are no cases that address the issue of retrospective premiums[,] and no clear language in the contract that addresses whether the insurance company is entitled to receive more in reimbursement than actually paid out of pocket. Cajun argues that Petrosu-rance was acting merely as an administrator in the payment of some of the benefits. This is a material issue of fact which precludes summary judgment. We reverse the judgment of the trial court and remand this matter for trial on the merits so that a clear determination may be made of the nature of the payments by Cajun to Petrosurance and so that a determination may be made as to whether Cajun is entitled to any reimbursement.

Benton Specialties, Inc. v. Cajun Well Serv., Inc., 05-842, pp. 3-4 (La.App. 3 Cir. 2/1/06), 922 So.2d 687, 689.

On remand, Cajun hired an expert witness to provide the trial court with information as to the policy and Cajun’s claim to the funds. Petrosurance sought to exclude the expert’s testimony or, alternatively, to limit his testimony, arguing that the analysis the expert presented in his report included a legal analysis of the policy, which is within the purview of the court. The trial court denied Petrosu-rance’s request to exclude Cajun’s expert’s testimony but limited the expert’s testimony-

laAfter summary judgment was granted but before Cajun filed its suspensive appeal, the clerk of court disbursed the funds to counsel for Petrosurance. On receipt of the funds, counsel forwarded them to his client. Prior to trial, counsel for Cajun learned that Petrosurance had received the funds and issued a writ of sequestration to have the funds redeposited into the registry of the court. He then filed a motion for sanctions against counsel for Petrosurance, Petrosurance, an attorney who had assisted counsel by appearing at a deposition for him, and a law firm with which counsel became associated after the funds had been disbursed. Cajun also requested attorney fees for having to file a motion for sanctions to have the funds returned to the clerk of court.

In response to Cajun’s rule for sanctions, Petrosurance filed a motion to dismiss, a motion to strike, peremptory exceptions of no cause of action and non-joinder of a party, and a dilatory exception of unauthorized use of a summary proceeding. It also filed a rule to show cause why sanctions should not be levied against Cajun’s counsel.

Trial on the merits and these ancillary matters was held February 25, 2008. The trial court concluded that the subrogation provision of the policy entitled Petrosu-rance to the funds and awarded judgment in its favor. In a separate judgment, the trial court granted Petrosurance’s motion to dismiss Cajun’s request for sanctions and attorney fees but ordered counsel for Petrosurance to pay all costs associated with the writ of sequestration and Cajun’s motions. Cajun’s requests for relief and the remainder of Petrosurance’s requests for relief were denied.

Cajun appealed both judgments. Petro-surance filed a motion to dismiss Cajun’s appeal of the trial court’s judgment denying its rule for sanctions on the bases 4that it was an interlocutory judgment and that Cajun had not made a showing of irreparable harm. Another panel of this court determined that because a final, ap-pealable judgment had been rendered on the merits, it was appropriate for the interlocutory judgment to be subject to appellate review with the judgment on the merits. Benton Specialties, Inc. v. Cajun Well Serv., Inc., 09-506 (La.App. 3 Cir. 6/10/09), 13 So.3d 257. Accordingly, we address all of Cajun’s assignments of error.

Cajun assigns error with the trial court’s limitation of its expert’s testimony, award of judgment in favor of Petrosurance, and denial of its request for sanctions and attorney fees.

Discussion

Cajun’s first two assignments of error pertain to Petrosurance’s policy and raise an issue of interpretation; therefore, we begin our discussion with a review of the law regarding contract interpretation. An insurance contract is a conventional obligation that constitutes the law between the insured and insurer. Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024. Certain principles of construction guide the interpretation of contracts, and insurance contracts are interpreted in the same manner as other contracts. Id. Contracts must be read and construed as a whole. Id. “When the words of an insurance contract are clear and explicit and lead to no absurd consequences,” the policy must be enforced “as written,” and courts “may make no further interpretation in search of the parties’ intent.” Id. at 1028.

When a contract can be construed from the four corners of the document, contract interpretation is a question of law. Sims v. Mulhearn Funeral Home, Inc., 07-54 (La.5/22/07), 956 So.2d 583. Appellate review of a question of law is limited to determining whether the trial court’s determination is legally correct or incorrect. CLKCo., L.L.C. v. CXY Energy, Inc., 07-834 (La.App. 3 Cir. 12/19/07), 972 So.2d 1280, writs denied, 08-140, 08-207 (La.3/14/08), 977 So.2d 932, 937.

The trial court’s determinations that Pe-trosurance is entitled to the funds and that Cajun’s expert’s testimony should be limited are based on the following provision of the policy:

Recovery from Others
We have your rights, and the rights of persons entitled to the benefits of this insurance, to recover our payments from anyone liable for the injury. You will do everything necessary to protect those rights for us and to help us enforce them.

The trial court concluded that the subro-gation provision was clear and explicit and that Petrosurance had the right to enforce it as written. We agree. However, the trial court considered this provision in isolation and to the exclusion of other policy provisions and the evidence. For these reasons, we address Cajun’s assignments of error in light of the entire policy and the evidence.

Entitlement to the Funds

Cajun asserts that it is entitled to receive all the funds because the amounts it paid to Petrosurance were used to pay Mr. Malveaux’s claims. Petrosurance relies on the policy’s subrogation provision quoted above to defend the trial court’s award of the funds to it.

Cajun contends that Petrosurance acted as a third-party administrator because Pe-trosurance used Cajun’s money to pay Mr. Malveaux’s claims and asserts that it is subrogated to the funds. Its argument is based on Insurance Co. of North America v. Binnings Construction Co., Inc., 288 So.2d 359 (La.App. 4 Cir.1974), La.Civ.Code art. 1826, its expert’s testimony, and the $77,000 it paid to Petrosu-rance for indemnity benefits and medical expenses Petrosurance paid on Mr. Mal-veaux’s claims.

Binnings did not hold that under a retrospective rating plan, the insurer is a third party administrator. Rather, the court in Binnings observed that because “insureds must ... pay the insurer as increased premium for [payments] the insurer has made; ... it may be said that, within those premium limits, the insurer [pays] claims not with its own money but with insureds’ money.” Id. at 360-61 (emphasis added). Additionally, subrogation may be legal or conventional. La.Civ. Code art. 1825. Here, it is conventional and governed by Petrosurance’s policy, which is the law between the parties. Consequently, we must determine if any provision other than the subrogation provision affects who recovers the funds.

Petrosuranee’s defense of the trial court’s judgment is based on the policy’s subrogation provision and its calculation of a “final” premium before the funds were recovered. Kristine Williams, Petrosu-rance’s representative, testified regarding the policy and the parties’ claims to the funds. She testified that Petrosurance audited Cajun’s payroll in January 1997 and that she used the audit to make a “final” premium calculation in 2000. According to the “final” premium calculation, Cajun |7was due a refund because the premiums it paid exceeded the “final” premium she had calculated. Ms. Williams testified that the refund due Cajun had been mailed to it. During direct examination, Ms. Williams relied on the following policy provision for her claim that the 2000 premium calculation was “final”:

After a calculation of retrospective premium, you and we may agree that it is the final calculation. No other calculation will be made unless there is clerical error in the final calculation.

Ms. Williams admitted on cross-examination, however, that she did not see a document in Cajun’s file which indicated the 2000 accounting was “final,” and, although she testified immediately thereafter that the overpayment refund order was labeled “final,” she admitted she had not seen that documentation during the trial. Ms. Williams also testified that, “there comes a point in time when the policy (not audible) froze out” and that because the funds were recovered years after her “final” calculation, they were not included therein. Counsel for Cajun continued pressing Ms. Williams about accounting for the funds in the premium calculation, and she admitted that if the funds had been recovered before the “final” accounting had been done “it would have been an issue.”

Cajun’s expert, Dr. William L. Ferguson, did not dispute any of Ms. Williams’ testimony regarding the policy provisions, the premiums, or her calculations. He did testify, however, that he had not found evidence establishing Petrosurance had paid the premium refund due Cajun. He further testified that the policy had no set time to close, that it would not be closed until the parties agreed, and that he never saw a document evidencing that the policy was closed. Dr. Ferguson also testified that when a recovery is made under a retrospective premium policy it benefits the insured first and the insurer cannot keep any of the recovery until the insured is made whole.

IrMs. Peggy Thibodeaux, Cajun’s bookkeeper, also testified at trial; however, her testimony could not be transcribed due to a problem with the recording equipment in the courtroom. The trial court summarized her testimony and stated in its Reasons for Judgment that Ms. Thibodeaux testified she did not recall receiving the premium refund and that she did not testify about the terms of the policy. The trial court’s summary of Ms. Thibodeaux’s testimony is not disputed by the parties, and we accept it as being accurate.

Ms. Williams admitted that recovery of the funds would have affected the calculation of Cajun’s premium but claimed it came too late because there had been a final calculation of the premium as provided in the policy. The policy provides in pertinent part:

We will calculate the retrospective premium using all loss information we have as of a date six months after the rating plan period ends and annually thereafter. ...
After a calculation of retrospective premium, you and we may agree that it is the final calculation. No other calculation will be made unless there is clerical error in the final calculation.

These provisions provide for a premium calculation six months after the policy ended and annually thereafter, unless the parties agree otherwise. The only audit performed after the policy ended was in January 1997, approximately six weeks after the policy plan ended in November 1996. Ms. Williams testified that she performed the “final” calculation required by the policy in 2000, which resulted in Cajun being due a refund. However, she acknowledged that no document in evidence contains a calculation labeled “final.” Further, she did not testify that Cajun agreed her 2000 premium calculation was “final” or that Petrosurance had proof Cajun received the prefund it was owed. Ms. Thibodeaux testified, contrary to Ms. Williams, that she did not recall receiving a refund from Petrosurance, and there is no evidence of such a refund in the record or that Cajun agreed the 2000 premium calculation was final.

Ms. Williams also claimed that the premium calculation she performed in 2000 was the final calculation because the funds were recovered many years after the policy terminated and the policy “froze out” before that time, indicating the premium calculation was finalized by the passage of time. No provision in the policy provides for this.

For these reasons, we find that the trial court’s judgment awarding the funds to Petrosurance was legally incorrect and reverse it. Accordingly, we must now determine who is entitled to the funds.

Pursuant to the policy, the amount of Cajun’s premium depends on five elements: 1) standard premium; 2) basic premium; 3) incurred losses; 4) converted losses; and 5) taxes. Pertinent to the resolution of the issue presented herein is incurred losses which is defined as: “all amounts we pay or estimate we will pay for losses, interest on judgements, expenses to recover against third parties, and employers liability loss adjustment expenses.” Ms. Williams and Dr. Ferguson both testified that recovery of incurred losses through subrogation reduces the amount of incurred losses included in the premium calculation.

Petrosurance did not prove that a final reconciliation had been done and accepted by Cajun; therefore, we will calculate Cajun’s final premium to account for the funds. Ms. Williams testified how the final calculation of Cajun’s premium would be performed to account for the funds. According to the policy and Ms. Williams’ testimony the formula for calculating Cajun’s premium is:

| ipBasic premium (payroll x basic premium factor (.30))

+ Converted losses (incurred losses x loss conversion factor (1.108))

x Tax factor (1.067)

Using this formula, we calculate Cajun’s final premium as follows:

$ 56,579 ($188,596 x .30)

+ 82,939 ($133,855 - 59,000 = (incurred losses) x 1.108)

$139,518

x 1.067

$148,866

Cajun paid premiums totaling $190,295, which exceeds the premium it owes by $41,429, and it is entitled to this portion of the funds. Petrosurance is entitled to $17,571, the difference between $59,000 and $41,429.

Expert Witness Testimony

Cajun asks this court to reverse the trial court’s determination that its expert witness could not give his opinion as to how the policy should be interpreted, i.e., who is entitled to the funds. It proffered a copy of Dr. Ferguson’s report to facilitate our review of this issue.

The trial court is allowed much discretion in determining whether to allow a witness to testify as an expert under La.Code Evid. art. 702, and its judgment will remain undisturbed unless that discretion was abused. Cheairs v. State ex rel Dep’t of Transp. & Dev., 03-680 (La.12/2/03), 861 So.2d 536. The trial court did not err Inin holding that it is the court’s province to interpret a contract, and we find no error with the trial court’s ruling in this regard.

Pursuant to the trial court’s ruling, Dr. Ferguson testified regarding industry standards, practices, and customs and that any subrogation recovery goes to the benefit of the insured, but he was not allowed to testify how recovery of the funds affected the calculation of Cajun’s premium. We have reviewed Dr. Ferguson’s report. The information and opinions contained therein are comparable to the testimony of Petrosurance’s representative. Dr. Ferguson opined that Cajun’s premium was reduced by recovery of the funds and outlined the process for calculating the premium. His premium calculation followed the process explained by Ms. Williams, i.e., it included incurred expenses as defined by the policy and a credit to Cajun in the amount of the funds. Therefore, we find that the trial court erred in refusing to allow Dr. Ferguson to testify regarding the effect the funds had on Cajun’s premium.

We note, however, that Dr. Ferguson used $133,359 for incurred losses in his calculation, but Ms. Williams testified that the incurred losses were $133,855. According to Dr. Ferguson’s report, the $133,359 figure included in his calculation was obtained from two documents attached to Petrosuranee’s memorandum in support of its motion for summary judgment. We have reviewed the documents attached to Petrosurance’s memorandum; they appear to be the same documents Petrosurance introduced at trial. The documents include an itemization of payments made for Mr. Malveaux’s claim and copies of can-celled checks representing those payments. The documents support Ms. Williams’ testimony that incurred losses were $133,855. Accordingly, we used that figure in our calculation above.

| Sanctions

Cajun urges that the trial court erred in denying its request that sanctions be imposed against counsel for Petrosu-rance and that he be ordered to pay attorney fees Cajun incurred to have the funds redeposited with the clerk of court. The trial court explained in its Reasons for Judgment that it determined sanctions were not appropriate because it found counsel for Petrosurance had “no intention to defraud this Court or opposing party” and attributed his actions to “overzealousness, as opposed to an intentional defrauding of the Court or opposing counsel.” However, the trial court did order counsel for Petrosurance “to pay the cost of filing and hearing of the Rule for Sanctions, as it was based on his error.” Cajun’s request for attorney fees was refused because, as the trial court aptly observed, while Cajun’s counsel was within his right to file the motion for sanctions, he did not take “the least costly course of action” of requesting a return of the funds before filing a motion.

A trial court’s decision to grant or deny sanctions or attorney fees against an attorney will not be reversed unless it is manifestly erroneous. Miller v. Miller, 35,358 (La.App. 2 Cir. 12/5/01), 803 So.2d 292. We have reviewed the record and find the trial court’s denial of Cajun’s request for sanctions and attorney fees was not manifestly erroneous.

Conclusion

The judgment of the trial court assigning the $59,000 deposited in the registry of the court plus interest to Petrosurance Casualty Company is reversed. The $59,000 deposited in the registry of the court is to be disbursed as follows: $41,429 plus interest to Cajun Well Service, Inc. and $17,571 plus interest to Petrosurance lisCasualty Company. The other judgments of the trial court are affirmed. Costs are assessed to Petrosurance Casualty Company.

REVERSED IN PART, AFFIRMED IN PART, AND RENDERED.

GREMILLION, J., dissents and assigns written reasons.

GREMILLION, Judge,

dissenting.

| tThis concursus proceeding involves the dispute between an insurer and its insured over entitlement to the money derived from a settlement negotiated by the insurer with a third party tortfeasor of the intervention filed by the insurer in its insured’s employee’s suit against the tortfea-sor. The insured contested the insurer’s subrogation and the tortfeasor deposited the proceeds into the registry of the court and invoked the concursus.

Cajun’s policy was a retrospective premium policy, in which the insurer agreed to charge a discounted premium, but reserved the right to charge additional premiums during the policy term if claims were made. For instance, Cajun ivould have paid premiums of $168,307 under a traditional policy, but only paid $113,158 under the retrospective premium scheme. However, after Malveaux’s claim, Petrosu-rance charged Cajun an additional $77,137 in retrospective premiums.

The majority concludes that the insured is entitled to $41,429 and the insurer is entitled to $17,571. It achieves this result by recalculating the retrospective premium. The recalculating of the premium is unwarranted, and does great violence to the policy language.

The policy language here is clear and unambiguous. The premium the insured owed was to be calculated using the loss information available as of six months after the rating plan period ends and annually thereafter. The recovery of this settlement in Malveaux’s case — which I again emphasize was achieved solely through the ^efforts of the insurer — occurred well after the rating plan period and should not have been used at all in calculating the premium.

The majority bypasses this provision by concluding that there was no “freeze out” period in the policy and by pointing out as evidence that the premium calculation was never “final” the fact that the insurer looked back over the plan and may have given a refund to the insured four years after the fact. This is a classic example of no good deed going unpunished. This, in my opinion, does not reopen the premium calculation because no new information was used by the insurer in determining that it owed a refund to the insured, whereas the recovery of the settlement by the insurer clearly constitutes new information not available as of six months after the rate plan period. The policy did indeed contain a “freeze out” provision: the premium was to be based on the information available as of six months after the rating plan period.

The insurer prosecuted the intervention to recover the lien and settled the lien at its expense by virtue of the subrogation provision. While recognizing the existence of the subrogation provision, the opinion effectively writes it out of the policy.

I would also point out that during the period for which Cajun was charged the retroactive premium, Petrosurance was exposed to the prospect of additional claims. Although it was fortunate for all that no additional claims arose, the fact remains that Petrosurance was forced to factor the potential for additional claims into its business decisions. Had additional claims arisen, Petrosurance would have covered them; and under its contract, no additional premiums could have been charged, as the policy capped the retrospective premium at the amount Cajun was charged as a result of Malveaux’s claim. Petrosurance would have been forced to honor this arrangement, and Cajun would have had no reason to complain. Yet, under the one hypothetical such an arrangement could have inured to the benefit of Petrosurance, the majority |sdoes not require Cajun to honor its commitment. Cajun was not forced to purchase a retrospective premium policy. It negotiated the terms of the policy with the anticipation that it would result in substantial savings. This was a calculated business decision. Its miscalculation should not result in a decision that completely abrogates the language of the policy.

I respectfully dissent.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . For ease of reading and calculations, dollar amounts referenced in our discussion have been rounded up or down to the nearest dollar, as this mediodology was utilized by Petro-surance in its premium calculations without objection by Cajun.

      . Louisiana Civil Code Article 1826 provides:
      A. When subrogation results from a person’s performance of the obligation of another, that obligation subsists in favor of the person who performed it who may avail himself of the action and security of the original obligee against the obligor, but is extinguished for the original obligee.
      B. An original obligee who has been paid only in part may exercise his right for the balance of the debt in preference to the new obligee. This right shall not be waived or altered if the original obligation arose from injuries sustained or loss occasioned by the original obligee as a result of the negligence or intentional conduct of the original obligor.

      . Ms. Williams calculated the premium as 30% of Cajun's payroll. The policy provides that the basic premium is 30% of the standard premium. Review of the January 1997 audit reveals that the payroll and standard premium are the same, as the original standard premium of $168,407 was revised to $188,596, as a result of the audit.


source: Caselaw Access Project

author: SAUNDERS, J.

license: Public Domain

text:
    Francis TOUCHET, Jr. v. Ernal J. BROUSSARD.
    No. 10-188.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 19, 2010.
    Writ Gianting Feb. 24, 2010.

      Anthony Jerome Fontana, Jr., Abbeville, LA, for Appellee Francis Touchet, Jr.
    Bradford Hyde Felder, Huval, Veazey, Felder, etc., Lafayette, LA, for Defendant/Appellant Ernal J. Broussard.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   SAUNDERS, J.

11 Ernal Broussard qualified to run for city councilman for District B in the City of Abbeville. Shortly after Mr. Broussard qualified, his opponent, incumbent Francis Touchet, filed a petition objecting to Mr. Broussard’s candidacy. Specifically, Mr. Touchet alleged that Mr. Broussard’s prior guilty plea to a federal offense precluded Mr. Broussard from holding public office. The trial court agreed and granted Mr. Touchet’s petition. Mr. Broussard appeals the trial court’s judgment and asserts the additional issue of insufficiency of service of process. For the following reasons, we reverse in favor of Mr. Broussard. Mr. Touchet failed to meet his burden of proof that Mr. Broussard’s guilty plea amounted to a felony under Louisiana law.

I. ISSUES

We must decide whether:

(1) The trial court erred by allowing the deputy clerk of court to appear in court to waive service of process under oath and whether Mr. Broussard waived his objection by his failure to object at trial;
(2) The trial court erred in finding that the factual basis for the plea agreement in the federal conviction was sufficient to establish that the actions of Mr. Brous-sard amounted to a felony under Louisiana law; and
(3) The trial court erred in holding that the automatic pardon provided by La. Const, art. 4, § 5(E) did not restore Mr. Broussard’s right to hold public office upon the completion of his sentence.

II. FACTS AND PROCEDURAL HISTORY

In 2005, Mr. Broussard pled guilty to aiding and abetting an illegal gambling operation and was sentenced to two years probation, six months home ^confinement, and a $5,000 fine. Mr. Broussard completed his sentence, and his federal supervision terminated on December 14, 2007. Pursuant to La. Const, art. 4, § 5(E), Mr. Broussard received an automatic first offender pardon.

On February 3, 2010, Mr. Broussard qualified to run for city councilman for District B in the City of Abbeville. On February 8, 2010, Francis Touchet filed a Petition Objecting to the Candidacy of Er-nal J. Broussard for the position of Abbe-ville city councilman for District B. Mr. Touchet alleged that a prior criminal conviction in federal court disqualifies Mr. Broussard from holding public office pursuant to the provisions of La. Const, art. I, § 10.

At the trial on the matter, Mr. Brous-sard filed an exception into the record citing Mr. Touchet’s failure to name an indispensable party — the official before whom Mr. Broussard qualified. The trial court allowed Mr. Touchet’s counsel to amend the petition by filing a handwritten amended pleading in court. Mr. Touchet’s counsel did so and added the clerk of court of Vermilion Parish as a party defendant. The trial court then allowed testimony from Clayton Campbell, deputy clerk of court, whereby Mr. Campbell, under oath, consented to the waiver of service of process.

Following testimony on the merits, the trial court rendered judgment in favor of Mr. Touchet, holding that Mr. Broussard’s prior plea disqualified him from holding public office until fifteen years following the completion of his sentence. Mr. Broussard appeals that ruling.

|SIII. LAW AND DISCUSSION

Standard of Review

This case poses questions of law as it involves the interpretation of codal articles. Thus, the appropriate standard of review is de novo.

An appellate review of questions of law is simply to determine whether the trial court was legally correct or legally incorrect. If the trial court’s decision was based on its erroneous interpretation or application of the law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing court.

Domingue v. Bodin, 2008-62, p. 2 (La.App. 3 Cir. 11/5/08), 996 So.2d 654, 657 (citations omitted).

Moreover, under the de novo standard of review, the appellate court gives no additional weight to the trial court but, instead, conducts a de novo review and renders judgment on the record. Id. Accordingly, we will review the record in its entirety to determine whether the trial court’s decision was legally correct.

Mr. Broussard’s Procedural Challenge to Waiver of Service

Louisiana Code of Civil Procedure Article 1312 provides that “every pleading subsequent to the original petition shall be served on the adverse party....” Mr. Broussard asserts that the testimony from Mr. Campbell was insufficient to establish waiver of service, and thus, the entire proceeding was absolutely null.

Generally, the defendant may expressly waive citation and service thereof by any written waiver made part of the record. The requirement of a written waiver of service is not absolute, however. When a defendant makes a general appearance in court, written waiver is not necessary. Dupont v. Poole, 335 So.2d 764 (La.App. 3 Cir.1976). Here, Mr. Campbell, as acting clerk of court due to Ms. Meaux Broussard’s absence, appeared in court and testified under oath. The appearance of Mr. Campbell effectually waived service of process. Moreover, Mr. | .(Broussard failed to object to the lack of service at the time of trial, thereby waiving his right to object. The underlying proceeding, therefore, was valid.

Mr. Broussard’s Qualification as a Candidate

A. Burden of Proof

In an action to disqualify a candidate, the burden is upon the person seeking to disqualify the candidate to establish all that is necessary to disqualify the candidate. Chrishon v. Marshall, 08-933 (La.App. 3 Cir. 7/28/08), 994 So.2d 585, 590. Additionally, as stated by the Louisiana First Circuit Court of Appeal:

Generally, the laws governing the conduct of elections should be liberally construed so as to promote rather than to defeat a candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office.

Pattan v. Fields, 95-1936 (La.App. 1 Cir. 9/26/95), 669 So.2d 1233, 1237 (citations omitted). Moreover, as the Louisiana Supreme Court stated in Malone v. Shyne, 06-2190 (La.9/13/06), 937 So.2d 343, 356 (citations omitted):

Further, the well-established principle that “rules in derogation of a common right should be strictly interpreted,” supports our decision herein. The right to seek and hold a municipal or state office is a common right, so that any restriction on that right must be strictly construed.

Here, resolving doubts in favor of Mr. Broussard and strictly construing the relevant provisions of Louisiana law in favor of Mr. Broussard’s basic rights of citizenship,. lead to the conclusion that he is a qualified candidate for public office.

B. The Federal Conviction

To succeed on his petition, Mr. Touchet must prove that the federal crime contained in the plea agreement would classify as a felony under Louisiana law. Specifically, Mr. Touchet alleges that the crime associated with Mr. Broussard’s plea amounts to Gambling under La. R.S. 14:90, which states in pertinent part:

|SA. (l)(a) Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.
(b) Whoever commits the crime of gambling shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both.
(2) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than twenty thousand dollar’s, or imprisoned with or without hard labor, for not more than five years, or both when:
(a) R.S. 14:90 is violated.
(b) Five or more persons are involved who conduct, finance, manage supervise, direct, or own all or part of an illegal gambling business.
(c) Such business has been in or remains in substantially continuous operation for a period of thirty days or more or, if the continuous operation is for less than thirty days, has a gross revenue of two thousand dollars in any single day.

Here, factual issues distinguish the federal charge against Mr. Broussard from the Louisiana statute. These factual distinctions prevent Mr. Touchet from establishing that the federal crime would be classified as a felony under Louisiana law, and, consequently, prevent Mr. Touchet from prevailing on his petition.

Upon pleading guilty to Aiding and Abetting an Illegal Gambling Business in violation of 18 U.S.C. Section 1955(a), Mr. Broussard signed a document entitled “Stipulated Factual Basis for Guilty Plea.” The pertinent facts established in the document are as follows:

(1) Mr. Broussard “cashed checks for Phillip Mazella.”
(2) “Mr. Mazella operated an illegal gambling business, and the checks processed by Mr. Broussard were the result of the illegal bookmaking operation.”
|fi(3) “Mr. Broussard was one of the primary check cashing businesses used by Mr. Mazella, and millions of dollars flowed through his business.”
(4) “Mr. Broussard was paid a fee for his services.”
(5) “The illegal gambling business employed and was conducted by four or more other persons.”
(6) “The defendant ... was not licensed by the State of Louisiana as a money transmitting or check cashing business.”
(7) “Operating an illegal business involving bookmaking is a violation of Louisiana Revised Statute, Title 14, Section 90.”

Mr. Touchet argues that the facts noted above are enough to prove that Mr. Brous-sard acted in violation of La. R.S. 14:90. As noted above, to establish a felony under this statute, one must prove that “five or more persons are involved who conduct, finance, manage, supervise, direct, or own all or part of an illegal gambling business.” The facts listed in the stipulation establish only that Mr. Mazella, not Mr. Broussard, operated an illegal gambling business. Nothing in the record suggests that Mr. Broussard “conducted,” “financed,” “managed,” “supervised,” “directed,” or “owned” any part of Mr. Mazella’s business. Indeed, the facts demonstrate that Mr. Broussard cashed checks for Mr. Ma-zella’s illegal business, nothing more.

Mr. Touchet wrongly and repeatedly asserts that Mr. Broussard admitted that his actions violated La. R.S. 14:90. He did not. The Stipulated Factual Basis for Guilty Plea merely states that “operating an illegal business involving bookmaking is a violation of Louisiana Revised Statute, Title 14, Section 90.” The document does not, however, indicate that Mr. Broussard operated an illegal business involving bookmaking.

|7The court has also considered the elements of the federal offense as read to Mr. Broussard by Judge Haik:

In order for you to be found guilty in violation of Title 18, United States Code, Section 1955(a), the United States would have to prove the following essential elements beyond a reasonable doubt:
First: That you, along with four or more persons, knowingly conducted, financed, managed, supervised or owned all or part of a gambling business as charged or aided and abetted such activity;
Second: That said gambling business violated the laws of the State of Louisiana. Bookmaking is against the laws of State of Louisiana; and
Third: That said gambling business was in substantially continuous operation for a period in excess of thirty days and had a gross revenue of $2,000 or more in any one day.

Mr. Touchet argues that by pleading guilty, Mr. Broussard conceded that he had committed the crime of gambling as described in paragraph one of the Elements of Offense as read by Judge Haik, and that Mr. Broussard confirmed this confession in the Stipulation when he said that bookmaking was a felony under Louisiana law. The court notes, however, that paragraph one of the Elements of Offense are qualified by the language “or aided and abetted such activity.” Thus, though the plea is to a crime comparable to La. R.S. 14:90 which is a felony, the aided and abetted language qualifies the plea and limits it to the charge of aiding and abetting. Louisiana law does not contain an aiding and abetting statute comparable to the federal statute, and Mr. Touchet has pointed the court to no comparable IsLouisiana felony. Mr. Touchet, in fact, points only to La. R.S. 14:90. As noted previously, the facts in the record do not prove that Mr. Broussard violated La. R.S. 14:90.

Thus, the facts in the record are insufficient to prove that Mr. Broussard committed a felony under Louisiana law, and Mr. Touchet failed to meet his burden of proof. The trial court’s ruling that Mr. Touchet met his burden was in error and will be reversed.

B. Mr. Broussard’s First Offender Pardon and the Constitutional Implications

The final issue before us is whether the trial court erred in holding that the automatic pardon provided by La. Const, art. 4, § 5(E) did not restore Mr. Broussard’s right to hold public office upon the completion of his sentence. That determination, however, hinges on a finding that Mr. Broussard is a felon under Louisiana law. Since we determined that Mr. Broussard’s guilty plea does not amount to a felony under Louisiana law, we do not reach this constitutional issue.

IV. CONCLUSION

Based upon the foregoing, we reverse the judgment of the trial court regarding the ability of Mr. Broussard to qualify as a candidate for city council. Costs of this appeal are assessed to Francis Touchet.

REVERSED AND RENDERED.

      . Louisiana Constitution Article 4, § 5(E) states in pertinent part: "A first offender convicted of a nonviolent crime ... never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor.”

      . Mr. Broussard also filed an exception for failure to follow procedures — namely, failing to post Mr. Touchet's petition at the courthouse. The trial court's ruling on that issue is not challenged; so, we will not address it here.

      .The clerk of court for Vermilion Parish, Diane Meaux Broussard, was unavailable due to a medical emergency, to personally appear in court. Thus, due to Ms. Meaux Brous-sard's unavailability, Mr. Campbell represented her and served as acting clerk of court.


author: WILLIAMS, J.

text:
    Leeland HURT, Plaintiff-Appellee v. JAMES T. GENTRY TRUCKING CO., INC., Defendant-Appellant.
    No. 45,052-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Matthew R. Richards, for Appellant.
    Jack M. Bailey, Jr., James A. Cooper, Jr., Mary L. Salley Bylsma, for Appellee.
    Before WILLIAMS, CARAWAY and MOORE, JJ.

      . During his testimony, claimant denied ever requesting to be paid in cash. Claimant also testified that Franks knew about his injured back, and “that’s why [Franks] went with me on those trips in case I couldn't drive that day, that he could.”

   WILLIAMS, J.

| defendants, James Gentry Trucking Company, Inc., and its insurer, Louisiana Workers’ Compensation Corporation (“LWCC”), appeal a workers’ compensation judge’s ruling denying their claim for the forfeiture of claimant’s benefits. For the following reasons, we affirm.

FACTS

Claimant, Leeland Hurt, was employed by defendant, James Gentry Trucking Company, Inc. (“Gentry Trucking”), as a truck driver. On July 18, 2004, claimant suffered a work-related back injury. Claimant filed a disputed claim for workers’ compensation and received medical treatment and temporary total disability (“TTD”) benefits.

On April 9, 2007, defendants filed a re-conventional demand, alleging that claimant “was employed and earned wages while being paid [TTD] benefits.” Defendants also alleged that claimant “made false statements or misrepresentations for the purpose of obtaining” workers’ compensation benefits, in violation of LSA-R.S. 23:1208.

A hearing was held on October 1, 2008. Claimant testified and admitted that he worked for James Franks and had earned four paychecks while receiving TTD benefits. Claimant also testified that he stopped working for Franks because his “back was in too bad a shape,” and he was unable to perform his duties. Claimant stated that he informed LWCC that he had taken a job “but it wasn’t going to pan out.” Thereafter, his workers’ compensation benefits were terminated.

Annette Robinson, a LWCC claims representative, testified that ^claimant called her on February 1, 2005, and notified her that he had attempted to return to work and “was trying it to see how it would work out for him.” Robinson stated that claimant told her that the job did not work out because he was unable to handle the duties. Robinson testified that she informed claimant that he was “not entitled to receive workers’ comp benefits and work and receive wages at the same time,” and that “he was probably overpaid.” Robinson also testified that she sent claimant a supplemental earnings benefits (“SEB”) form, which he completed and returned. She stated that she decided to terminate claimant’s indemnity benefits at that time “because we need[ed] to find out if he was overpaid, get his wages, get the SEB form back.” Robinson also stated that she contacted James Franks, who verified that claimant had worked for him. Robinson further testified that LWCC continued to pay claimant workers’ compensation benefits until July 15, 2005. Thereafter, the decision was made to seek forfeiture of claimant’s benefits. During cross-examination, Robinson admitted that she could not “say definitively” that she informed claimant, prior to February 1, 2005, that he was required to advise LWCC if he returned to work.

LWCC also introduced into evidence the deposition of James Franks, the owner of Franks Welding & Construction, Inc. Franks testified that claimant approached him during the summer of 2004 and asked if he needed a truck driver. Franks stated that he did not hire claimant at that time, but he told claimant that he would call him if he needed him to make a delivery. Franks testified that he called claimant in January or February of 2005, and |3claimant made “three or four runs” for him. Although Franks testified that claimant never informed him that his back had been injured and he was receiving workers’ compensation benefits, Franks testified that he accompanied claimant on the “runs” to secure the loads; claimant only drove the truck. Franks also testified that after claimant received his second paycheck, claimant accused him of failing to pay him for a “run” to Oklahoma City. At that point, an argument ensued and claimant requested that Franks either pay him in cash or make his paychecks payable to someone else. Franks testified that claimant told him that paychecks made payable to him “would mess his disability up or something.”

Following a hearing, the workers’ compensation judge (“WCJ”) found that claimant was entitled to all applicable workers’ compensation benefits and denied defendants’ claim for forfeiture. The WCJ stated:

The Court finds that while claimant’s actions are inconsistent and might rise to the level of negatively impacting his credibility, those actions did not amount to an intentional or fraudulent representation necessitating a forfeiture under 23:1208. Significant to the Court was the fact that [claimant] admitted and seemingly offered the fact that he had been trying to go back to work. This activity negates the ability of the defendant to meet its burden under 23:1208, and as such claimant is entitled to all applicable benefits under the Louisiana Workers’ Compensation Act pending further orders of this Court.

Defendants appeal.

| .DISCUSSION

Defendants contend the WCJ was manifestly erroneous in finding that claimant was entitled to workers’ compensation benefits and in denying the claim for forfeiture of benefits. Defendants argue that the evidence shows that claimant worked for Franks for approximately four weeks, and did not inform LWCC that he had worked until after Franks refused to pay him in cash.

LSA-R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
⅜ * *
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.
G. Whenever an employee receives benefits pursuant to this Chapter for more than thirty days, the employee shall upon reasonable request report his other earnings to his employer’s insurer on a form prescribed by the director and signed by the employee.
H. (1) Whenever an employee fails to report to his employer’s insurer as required by this Section within fourteen days of his receipt of the appropriate form, the employee’s right to benefits as provided in this Chapter may be suspended .
⅜ * *

The only requirements for forfeiture of benefits under Section 1208 are (1) a false statement or representation, (2) willfully made, and (3) made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Const. Co., 94-2708 (La.9/5/95), 660 So.2d 7; Freeman v. Chase, 42,716 (La.App.2d Cir.12/5/07), 974 So.2d 25. Section 1208 applies to |sany false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Baker v. Stanley Evans Logging, 42,156 (La.App.2d Cir.6/20/07), 960 So.2d 351; Freeman v. Triad Builders, 39,657 (La.App.2d Cir.5/11/05), 902 So.2d 1220, writ denied, 2005-1562 (La.12/16/05), 917 So.2d 1118.

Forfeiture is a harsh remedy and must be strictly construed. Wise v. J.E. Merit Constructors, Inc., 1997-0684 (La.1/21/98), 707 So.2d 1214; Freeman v. Chase, supra. The WCJ’s finding or denial of forfeiture will not be disturbed on appeal absent manifest error. Freeman v. Chase, supra; Johnikin v. Jong’s Inc., 40,-116 (La.App.2d Cir.9/21/05), 911 So.2d 413, writ denied, 2005-2251 (La.2/17/06), 924 So.2d 1020.

In Baker v. Stanley Evans Logging, 42,-156 (La.App.2d Cir.6/20/07), 960 So.2d 351, the claimant filed a claim for workers’ compensation benefits. During the course of the investigation of the claim, the employer/insurer learned, inter alia, that the claimant had made false statements with regard to the sources and amount of income from secondary jobs when he completed his monthly earnings reports for SEB. The WCJ found that the claimant did not commit fraud under Section 1208. This court reversed, stating:

The 1020 forms provide the unequivocal directive to report all gross earnings on the form. We find that Baker’s failure to disclose at least twelve post-injury jobs is not inadvertent and constitutes fraud.
The WCJ lost sight of the fact that Baker failed to report any outside income from his employers on his 1020 forms. Baker stated in his answers to interrogatories that | fiall the earnings on his 1020 forms came from garden produce and fishing worms, and even if he is taken at his word, it is evidence that he failed to disclose considerable earnings from his outside employers.

Id. at 355.

In Franklin v. HealthSouth, 41,458 (La.App.2d Cir.9/20/06), 940 So.2d 83, the claimant alleged that she was injured during the course and scope of her employment on March 25, 2004, but did not report it to her employer. In April of 2004, HealthSouth offered the claimant a “light-duty” position, which she declined, stating that she had a doctor’s excuse and could not work. Claimant reiterated to ESIS, HealthSouth’s third-party administrator, that she could not work and expressly denied having “a second job of any kind.” HealthSouth began paying weekly indemnity payments. On May 11, 2004, Health-South learned that the claimant was operating a new restaurant, which closed after three weeks of business. The claimant filed a disputed claim for workers’ compensation benefits in July 2004, demanding TTD benefits for March 26-April 6, 2004 and April 20-30, 2004. She also requested SEB for May 1, 2004-March 1, 2005. HealthSouth responded, contending the claimant did not suffer a work-related injury and that she had forfeited her right to all benefits by making false representations to obtain worker’s compensation benefits. The WCJ found that the claimant had forfeited her right to benefits and had “deliberately lied” about the extent of her disability. This court affirmed, |7stating:

[HealthSouth] proved that [the claimant] made certain statements to [Health-South and ESIS] and then offered the surveillance videotape to refute those statements.... [The videotape] shows [the claimant] performing mild to moderate activity shortly after she told [HealthSouth] that she had a doctor’s excuse and simply could not work. More importantly, it shows her working at [the restaurant] only days after telling [ESIS] that she had no second job whatsoever. This was a direct contradiction. The failure to disclose a second job will support a finding of forfeiture under § 1208. Tuminello v. Girling Health Care Inc., 98-977 (La.App. 5th Cir.1/26/99), 731 So.2d 316. The record supports the WCJ’s finding that [the claimant] made false statements to [Healthsouth] and [ESIS],

Id. at 88.

In Tuminello, supra, the claimant was injured while working for Girling Health Care, Inc. (“Girling”). The claimant received workers’ compensation benefits from September 16, 1996 through December 12, 1996. Thereafter, “an anonymous source” informed Girling that at the time the claimant was injured, she was also a part-time employee of Interim Health Care (“Interim”). Girling later learned that the claimant continued to work for Interim during the time that she was receiving workers’ compensation benefits. On March 17, 1997, at Ghiing’s request, the claimant signed a form stating that she was employed exclusively by Girling. Gir-ling terminated the claimant’s employment and sought forfeiture of her workers’ compensation benefits. The OWC found that the claimant had forfeited her right to workers’ compensation benefits. The appellate court affirmed, stating:

[Claimant actively made a false statement enabling her to collect more benefits than were legal under the statute. IsWhile she later recanted the written statement that she was employed exclusively by Girling, that admission came only after she was confronted with the truth.
Claimant herein intentionally deceived her employer, and willfully made a false statement regarding additional income which resulted in a distribution of temporary total disability benefits and an overpayment of $551.00. The false statement, made knowingly, defrauded the workers’ compensation system.

Id. at 318.

The instant case is distinguishable from Baker, Franklin and Tuminello. In Baker, supra, the claimant actively made false statements with regard to the sources and amount of income from secondary jobs on his 1020 forms. In Franklin, supra, the claimant told the insurer’s claims adjuster that she was unable to work and, when asked, stated that she did not have “a second job of any kind.” In Tuminello, supra, the claimant failed to inform her employer that she had a second job at the time of her injury and signed a form stating that she did not have a second job.

In the instant case, there was no allegation that claimant actively made a false statement or representation or that he failed to report income on a 1020 form. Rather, Gentry Trucking and LWCC argue that claimant violated Section 1208 because he accepted a job while receiving benefits after he signed a certification of compliance, which notified him that he could not work and receive benefits. The form was introduced into evidence and stated:

* * *
It is unlawful for you to work and receive workers’ compensation disability benefits, except for supplemental earnings benefits.... As an in jured worker, you must notify your employer or insurer of the Reaming of any ivages, changes in employment or medical status, receipt of unemployment benefits, receipt of social security benefits and receipt of retirement benefits. If you receive benefits for more than 30 days, you will be required to certify your earnings to your insurer quarterly.

(Emphasis in original).

There is no evidence that claimant made a false statement with regards to the certification of compliance. As noted above, claimant notified LWCC he had worked for approximately four weeks. Ms. Robinson sent claimant a SEB 1020 form, which claimant completed and returned, accurately reporting his income. We find that under the facts of this case, claimant’s act of earning wages after signing the certification of compliance notifying him of the penalties of working while receiving workers’ compensation benefits did not constitute fraud.

In Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir. 12/9/98), 722 So.2d 332, writ denied, 99-0072 (La.3/19/99), 739 So.2d 782, the claimant was injured on the job and received TTD benefits and medical treatment. At some point, the claimant accepted part-time employment but did not report his income to his employer, the employer’s workers’ compensation insurer or his physicians. His employer learned of his employment and terminated his TTD benefits. The claimant filed a disputed claim for compensation and the employer defended, alleging fraud under Section 1208. This court affirmed the WCJ’s ruling that the claimant had not forfeited his right to benefits, stating:

We adhere to the view that penal statutes must be strictly construed.... [A]ct 368 of 1995 ... added to [Section 1208] subsections F, G and H, which created a | ^requirement to notify the claimant of the fines and penalties for fraud, and a duty for the claimant to report “other earnings” to his employer’s comp carrier, on penalty of suspension of benefits. The apparent purpose of the amendment was to create an intermediate remedy for conduct — failure to report wages — that the legislature considered wrong but not serious enough to justify forfeiture of all benefits. We therefore find that Smalley’s conduct, accepting comp checks without reporting his part-time work, does not fall within the ambit of the forfeiture provision of § 1208 E, but is more appropriately addressed by the suspension provision of § H.

Id. at 336 (emphasis in original).

In Figueroa v. Hardtner, 35,678 (La.App.2d Cir.1/25/02), 805 So.2d 1267, the claimant was injured while working as a registered nurse. Her physicians informed her that she could no longer work, and she began receiving TTD benefits. Three months later, the claimant accepted a job working as a teacher. The employer filed to terminate workers’ compensation benefits, arguing that the claimant had violated Section 1208 by working while receiving indemnity benefits. The WCJ granted the claimant’s motion for directed verdict and dismissed the employer’s demand for forfeiture of benefits, and this court affirmed that aspect of the WCJ’s ruling. Citing Smalley, supra, this court stated:

When a claimant does not receive the forms for reporting earnings, the employee should not be found guilty of La. R.S. 23:1208 fraud when working and receiving indemnity and medical benefits, since the employer never inquired about the employee’s earnings while paying benefits. Until proper notice and forms are provided to the claimant, appellate courts have been reluctant to declare a claimant’s failure to report income as fraudulent behavior.

Id. at 1273 (internal citations omitted). See also, Louisiana Workers’ Compensation Corp. v. Gray, 34,731 (La.App.2d Cir.5/9/01), 786 So.2d 310.

In the instant case, neither LWCC nor Gentry Trucking inquired about claimant’s earnings during the time he was receiving TTD benefits. In fact, claimant did not receive any forms for reporting earnings prior to informing LWCC that he had worked during the month of January 2004. We recognize that claimant did not inform LWCC that he had accepted a job until after he decided he could not perform the duties of that job. Nevertheless, claimant did report that he had earned wages and accurately reported the amount of wages earned prior to any inquiry by the LWCC.

Additionally, LWCC does not point to any specific statement or representation made by claimant. Rather, LWCC contends “claimant’s actions, of attempting to work for cash so that he could conceal the employment and the concealed cash wages would not affect his worker’s compensation, clearly rose to the level of a violation of [Section 1208].”

As stated above, Franks testified that claimant asked him if he could either be paid in cash or that his paycheck be made payable to someone else to avoid “mess[ing] his disability up.” Conversely, claimant testified that he never made that request. Although the WCJ characterized claimant’s action’s as “inconsistent,” the WCJ ultimately concluded that claimant’s purported statements “did not amount to an intentional or fraudulent representation necessitating a forfeiture under 23:1208.”

We agree. Even if the defendants’ allegation that claimant sought to be paid in cash to avoid “messing up his disability” is true, we find that |12claimant’s conduct, with regard to statements made to Franks, did not rise to the level of fraud under Section 1208. The purported request, while reprehensible, did not constitute a “false statement or representation.” As stated above, claimant notified the claims representative that he had attempted to return to work during the same time period that defendants assert he began working. Moreover, the claims representative could not say definitively that she had informed claimant, prior to his telephone call to her, that he was to advise LWCC if he returned to work. There is no evidence in this record that claimant actually received any cash payments or checks made payable to someone else. Accordingly, we find that the WCJ was not manifestly erroneous in finding that claimant was entitled to workers’ compensation benefits and in denying LWCC’s claim for forfeiture of benefits.

CONCLUSION

For the reasons set forth herein, we affirm the ruling of the WCJ. Costs of this appeal are assessed to defendants, James Gentry Trucking Company, Inc. and Louisiana Workers’ Compensation Corporation.

AFFIRMED.

      . According to Franks’ testimony, claimant made “runs” on an “as needed” basis.

      . Conversely, claimant testified that he told Franks that he had a “problem in the lower lumbar section,” and Franks accompanied him "on every trip in case I couldn’t handle the job.”

      . A surveillance video, taken on May 14 and May 19, 2004, showed the claimant carrying pots from her house to her car and into the restaurant. The video also depicted the claimant performing various duties in the restaurant and lifting her grandson.


author: MOORE, J.

text:
    Mary F. HATTAWAY, Plaintiff-Appellant v. HEALTH PARADIGM, LLC and Ruston Neuropsychiatric Hospital, Inc., Defendant-Appellees.
    No. 45,047-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      William A. Jones, Jr., for Appellant.
    Tyler G. Storms, for Appellees.
    Before STEWART, CARAWAY and MOORE, JJ.
   MOORE, J.

_JjThis appeal comes from the Ruston City Court, Lincoln Parish, the Honorable Danny W. Tatum presiding. The dispute in this case arose out of Ruston Neuropsy-chiatric Hospital’s failure to timely pay the plaintiff, Mary F. Hattaway, accrued vacation pay after she was terminated from her employment. Ms. Hattaway ultimately sued the hospital for the vacation pay, statutory penalties and attorney fees, and for payment of dental expenses that she became personally liable for in the month after her termination as a result of the hospital’s wrongful cancellation of her dental insurance. The trial court ruled in Ms. Hattaway’s favor for the past due vacation pay, attorney fees and dental expenses, but declined to award the statutory penalty for failure to timely pay wages due. The plaintiff now appeals that part of the judgment failing to award the statutory penalty, and the hospital answered the appeal contending that the trial court erred in awarding the dental expenses and attorney fees. After review, we amend the judgment of the trial court to award the statutory penalties and additional attorney fees, and, as amended, we affirm.

FACTS

The plaintiff, Mary Hattaway, was terminated on March 26, 2008, after three years employment with Ruston Neuropsy-chiatric Hospital. She received her final paycheck on the normal payday for the last period she worked. This paycheck showed accrued vacation time of 4.44 hours. Plaintiffs hourly wage was $13. The plaintiff testified that she immediately told her supervisor that she did not receive her vacation pay in her paycheck and a dental insurance premium of $16.55 was taken out of her check.

|2Ms. Hattaway said that she subsequently spoke several times with her supervisor, Patricia Perry, and Renee Reynolds, the administrator, regarding the matter. She said that Ms. Reynolds told her that Ms. Vandenberg, wife of Dr. Van-denberg (the owner of the hospital) and who ran the office said that the plaintiff had nothing coming.

Ms. Hattaway also learned that her insurance was cancelled on March 30, 2008, even though the premiums deducted from her last two paychecks were for the following month.

The payroll at the hospital was handled Ms. Vandenberg. She acknowledged that the hospital had a written policy that accrued vacation time would be paid upon an employee’s termination or resignation. Ms. Vandenberg testified that she was not initially informed that the plaintiff had been terminated or resigned when she issued what turned out to be the final paycheck for regular wages, and this was the reason why her payroll program deducted the insurance premium and did not pay wages for the accrued vacation. When she learned that the plaintiff was not working at the hospital, Ms. Vandenberg said that she assumed it was due to illness because the plaintiff had a history of taking sick leave. When she received a demand letter for vacation pay and the insurance premium on August 21, 2008, Ms. Vandenberg said she issued a check to the plaintiff for $115.04 on September 10, 2008, which plaintiff received on September 12, 2008, the same day she filed suit.

Plaintiff rejected the $115.04 check, now claiming that the defendant owed her for 26.6 hours of vacation pay and for dental expenses she |sincurred because she believed she still had dental insurance after she was terminated, but the hospital had cancelled it. Plaintiff and her attorney had calculated the 26.6 hours of accrued vacation based upon their own formula and paycheck stubs some time before suit was filed.

Ms. Vandenberg sent Ms. Hattaway a new check for $379.84, representing the new amount demanded and refund for the insurance premiums. She testified that she decided to send the amount of wages demanded simply to put the matter to rest. She explained the discrepancy between her calculations of vacation time accrued (4.44 hours) and the plaintiffs personal calculation as resulting from the plaintiffs incorrect formula and failure to deduct excess sick time she took from vacation time.

However, now that the suit had been filed, the plaintiff rejected the tender, instead demanding the statutory penalty wages, attorney fees, and complete payment of her dental expenses in the amount of $741.

Among several stipulations before trial, the hospital stipulated that it owed the plaintiff 20 hours of vacation pay. The court awarded the plaintiff the 20 hours of wages at $13 per hour ($260). Additionally, it awarded plaintiff $741 in dental expenses that she incurred during the month after her termination because the company cancelled her dental insurance even though it had deducted dental coverage from her last paycheck which would have covered the period and did not offer her a COBRA plan to continue her insurance, and $1,500 in attorney fees.

The plaintiff filed this appeal arguing that she is entitled to the statutory penalty for failure to pay wages due, which amounts to 90 days | ,,pay at the employer’s regular rate. In this case, that amount is $9,360.

The hospital filed an answer to the appeal contending that the $1,500 in attorney fees were excessive and unwarranted and the $741 in dental expenses were not warranted whereas Ms. Hattaway never contacted Ms. Vandenberg regarding continuation of her insurance under a COBRA plan.

DISCUSSION

The point of contention on appeal is the trial court’s denial of the statutory penalty of 90 days pay on equitable grounds. These matters are governed by statute.

La. R.S. 23:631 reads, in pertinent part: A.(l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records. In the event payment is made by mail the employer shall be deemed to have made such payment when it is mailed. The timeliness of the mailing may be shown by an official United States postmark or other official documentation from the United States Postal Service.
B. In the event of a dispute as to the amount due under this Section, the employer shall pay the undisputed portion of the amount due as provided for in Subsection A of this Section. The employee shall have the right to file an action to enforce such a wage claim and proceed pursuant to Code of Civil Procedure Article 2592.
* *
D. (1) For purposes of this Section, vacation pay will be considered an amount then due only if, in accordance with the stated vacation policy of the person employing such laborer or other employee, both of the following apply:
(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.
(2) The provisions of this Subsection shall not be interpreted to allow the forfeiture of any vacation pay actually earned by an employee pursuant to the employer’s policy.

The penalties for failure to comply with La. R.S. 23:631 are provided for in La. R.S. 23:632, which reads:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

In this instance, the trial judge refused to award the vacation/wage penalties, stating that “the court is not convinced that the defendant’s actions were in bad faith, arbitrary or so unreasonable under the circumstances to trigger the penal wage provisions.” It said that it came to this conclusion based upon (1) the employer’s actions once the appropriate ^authorities were informed; (2) what the employer’s records showed; (3) the lack of an established pi-actice for calculation of vacation pay other than a Quicken pi’o-gram; (4) the lack of a specific demand by the plaintiff; and, (5) the good faith tenders by the defendant to achieve resolution of the matter.

We conclude that the trial court committed legal error in failing to impose the 90-day wage penalty required by the statute. Although there are some cases that hold, that a trial court has some discretion in awai’ding penalties and attorney fees under the statute, it is clear from the statute that it is the failure to comply with the provisions of La. R.S. 23:631, not a finding of bad faith, that triggers the penalty provision of La. R.S. 23:632. It is essentially undisputed that (1) wages wei-e due and owing; (2) Ms. Hattaway made oral demand to her supervisor whei'e she was customarily paid; and, (3) the hospital did not pay upon demand. Keiser v. Catholic Diocese of Shreveport, Inc., 880 So.2d 230 (La.App. 2 Cir.2004).

“It is only a good faith, non-arbitrary defense to liability for unpaid wages, i.e., a reasonable basis for resisting liability, which pei'mits a court to excuse the employer from the imposition of penalty wages.” Keiser, supra at 235. Thus, if the amount owed to the employee is subject to a bona fide (good faith) dispute, the court will not consider the failure to pay as arbitrary and will refuse to award penalties. Blaney v. Hulsey, Harwood & Hulsey, 27,983 (La.App.2 Cir. 2/28/96), 669 So.2d 661.

In this case, however, the defendant did not actually dispute that Ms. Hattaway was owed vacation pay; that is to say, there was no bona fide dispute that the hospital owed Ms. Hattaway at least some amount of |7vacation pay. Ms. Vanden-berg alleged that the cause of her failure to timely pay the wages due was a poor computer accounting system, lack of communication from Ms. Hattaway’s supervi-soi', lack of a demand from Ms. Hattaway for a specific amount due, and other misunderstandings and confusions. Be that as it may, these reasons do not absolve the defendant from liability under the penalty provision. Even her own payroll records showed that she owed the plaintiff at least 4.44 hours of vacation pay. Yet, she did not timely pay this amount as required by section B of the statute. It was only five months later, after a written demand letter was sent to hex', that she sent the first check for $115.04.

For these reasons, we amend the judgment of the frial court to award the statutory penalty of 90 days pay at $13 per hour, which comes to $9,360. We also reject the defendant’s answer to the appeal and award additional attorney fees of $500. In all other respects, the judgment of the trial court is affirmed at defendant’s cost.

AFFIRMED AS AMENDED.


author: STEWART, J.

text:
    Laura Diane Joiner CASON, Plaintiff-Appellant v. Joseph Paton CASON, III, Defendant-Appellee.
    No. 45,027-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.
    Charles R. Joiner, for Appellant.
    Barry W. Dowd, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   STEWART, J.

11 Laura Diane Joiner Cason (“Diane”) filed a rule against her former husband, Joseph Patón Cason, III (“Joseph”), seeking additional spousal support in an amount sufficient to maintain her in the former matrimonial domicile, which is now owned by her pai'ents. After a hearing, the trial court rendered a judgment denying her request. Diane now appeals. Finding no abuse of the discretion afforded the trial court in determining support matters, we affirm.

FACTS

The parties’ judgment of divorce, obtained on December 16, 2002, confirmed and made permanent a judgment on rule entered on April 5, 2002, setting forth their contractual agreement concerning “interim and permanent periodic spousal support.” They agreed that Diane would continue to reside in the former matrimonial domicile pending a community property partition. In addition to paying $450 per month directly to Diane, Joseph agreed to pay her utility bills, including cable and security expenses, up to specified amounts each month; to maintain her health insurance and pay pharmacy bills and non-covered medical expenses; and to pay the monthly interest on a mortgage encumbering the former matrimonial domicile. The agreement states:

All the aforementioned payments are to be deemed contractual interim and permanent periodic spousal support, (alimony) and as such, shall continue without modification until such time as [Diane] remarries, dies, or enters into open concubinage. In the event that the parties sell the former matrimonial domicile, the parties will then have the right to renegotiate the aspect of spousal support related to the payment of the house note through their respective attorneys.

IsThe agreement also provided that Joseph could continue to use the matrimonial domicile as his mailing address and that he would have access to a storage building behind the house.

In Cason v. Cason, 38,974 (La.App.2d Cir.10/27/04), 886 So.2d 628, this court affirmed the dismissal of a rule filed by Joseph to modify the spousal support and rejected the argument that the parties’ contractual support agreement was against public policy.

On July 22, 2005, Joseph filed a petition for judicial partition of the community property. Under their settlement, Diane received the house and agreed to pay Joseph an equalizing sum in the amount of $40,500. Diane’s parents, Charles and Jean Joiner, assisted her in meeting the partition obligation by obtaining a $75,000 loan and using the proceeds to pay the equalizing payment to Joseph and to pay off the mortgage on the home. Diane continued to live in the former matrimonial domicile, which was now owned by her parents.

On September 9, 2008, Diane filed a rule to have Joseph pay her an amount sufficient to enable her to continue to reside in the former matrimonial domicile. At the hearing on the rule, Diane’s attorney explained that she was seeking “the exact sum of money,” namely $650 per month, that it was costing her parents to pay the mortgage on the property, the insurance, and the property taxes.

Diane’s mother, Jean Joiner, testified that she and her husband borrowed the money to satisfy Diane’s obligations in the community property partition and that they wanted Diane to continue living in the house lawhich is only a few blocks away from their home. Jean testified that Diane was to pay $650 per month as rental to live in the home but that she had not yet made a payment.

Diane was not sure whether she had a rental agreement with her parents, but she testified that she would like to pay them $650 per month. She testified that she lives alone in the 3,000 square foot, three bedroom house.

Most of the testimony came from Joseph. Regarding his payment of mortgage interest as required by the support agreement, he explained that the payment was on a line of credit secured by a mortgage on the former matrimonial domicile and that the payment was interest only in amounts ranging from $134 to $225 per month. Though not required by the support agreement, he also paid the homeowner’s insurance and property taxes, bringing the monthly payment to approximately $310 per month. Joseph explained that he entered the support agreement with Diane to “take care of things the way they were.” However, he noted that Diane’s medical expenses had “changed dramatically” over the years. Though his net income for 2008 totaled $38,309.31, his support payments to Diane and on her behalf totaled $20,913.36. When questioned about his intent regarding the provision in the support agreement providing for renegotiation of the housing aspect of the spousal support upon sale of the matrimonial domicile, Joseph testified that he understood it to mean that he would have the right to renegotiate spousal support. He also indicated that he did not |4have the intent to be responsible for paying Diane’s debt resulting from their partition agreement.

While Diane’s attorney framed the issue as one of contractual interpretation based on the provisions of the support agreement, Joseph’s attorney framed it as a request for modification of support governed by La. C.C. art. 112, which limits the support obligation to no more than one-third of the obligor’s net income. Analyzing Diane’s rule both as a matter of contract and under La. C.C. art. 112, the trial court determined that neither provided a basis for ordering Joseph to pay Diane an additional $650 per month. Accordingly, the trial court rendered a judgment denying the rule and ordering that the spousal support “should remain unchanged.”

Diane filed a motion for a new trial and a motion to clarify the judgment, asserting that it was “unclear from what point that the spousal support should remain unchanged.” The trial court denied the motion for a new trial and referred Diane to her pleadings on the rule as clarification of the judgment. Her appeal followed.

DISCUSSION

Diane raises three issues on appeal. First, she argues that the trial court erred in treating her rule as one to modify spousal support rather than as an effort to enforce Joseph’s contractual obligation to maintain her in the former family home. Second, she argues that the trial court erred in applying La. C.C. art. 112, when it was merely required to interpret the contract for spousal support. Third, Diane argues that the trial court erred in | ¡¡ruling that the spousal support should remain unchanged without indicating from what point or amount it should remain unchanged.

Jurisprudence recognizes that post-divorce alimony can be determined by a contract between the parties, which is enforceable according to its own terms or the parties’ intent. Cason, supra; Aufrichtig v. Aufrichtig, 34,909, p. 5-6 (La.App.2d Cir.8/22/01), 796 So.2d 57, 61-62, and cases cited therein. The interpretation of a contract involves the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

We glean from Diane’s argument that she believes the contract for spousal support requires Joseph to provide support sufficient to maintain her in the former family home even though the parties have partitioned their community property and the home is now owned by Diane’s parents. However, the language of the support agreement set forth in the judgment on rule filed on April 5, 2002, does not support Diane’s argument or request for an additional $650 per month from Joseph.

The clear and unambiguous language of the support agreement states, “[P]ending a community property partition [Diane] shall have the exclusive use, occupancy, and control of the former matrimonial domicile .... ” Although Joseph obligated himself to pay the monthly interest on the mortgage encumbering the former matrimonial domicile, the support agreement further provided that the parties would have the right to | (¡renegotiate the aspect of spousal support related to the payment of the house note in the event of a sale of the former matrimonial domicile. These provisions indicate that the parties contemplated partition of their community property. They agreed that Diane would remain in the matrimonial domicile pending the partition and that Joseph would pay the mortgage interest obligation on the line of credit until the sale of the matrimonial domicile.

The clear and unambiguous language of the support agreement does not obligate Joseph to maintain Diane in the former matrimonial domicile past partition and sale of the property. The agreement merely provides the right to renegotiate the house payment aspect of spousal support upon sale of the former matrimonial domicile. The inclusion of the right to renegotiate indicates that the parties had no agreement as to what, if anything, Joseph would pay toward housing in the event of a sale of the former matrimonial domicile. Therefore, Diane’s request for an additional $650 per month to maintain her in the former matrimonial domicile, which is now owned by her parents, is not supported by the spousal support agreement and cannot be determined by divining the common intent of the parties under that agreement. Her request cannot be enforced as a contractual obligation, because no such obligation exists.

Because Diane argues that the trial court erred in applying La. C.C. art. 112 to this matter and because a contractual analysis does not support Diane’s request for additional support, it is not necessary for us to conduct an in-depth application of La. C.C. art. 112 to the facts. However, wejjobserve that La. C.C. art. 112(C) limits a support award to no more than one-third of the obligor’s net income. Under the support agreement and as shown by the evidence, Joseph has been paying support exceeding 50 percent of his net income. We reject Diane’s argument that Joseph waived application of the limit set by La. C.C. art. 112. Even though Joseph agreed to pay in excess of what is allowed by Article 112, his agreement would not preclude the trial court or this court from considering Article 112 in determining whether he should be ordered to pay additional amounts. Clearly, application of Article 112 would result in a denial of Diane’s rule.

Lastly, Diane takes issue with the trial court’s ruling that spousal support should remain unchanged. It is obvious that this means the spousal support agreement remains in effect except as to the payments previously made by Joseph for mortgage interest on the former matrimonial domicile. Because the community property has been partitioned and the house sold, he is no longer obligated to make such payments. Otherwise, the support agreement remains in effect.

CONCLUSION

Finding no abuse of discretion by the trial court in denying Diane’s rule for additional support, we affirm. Costs of appeal are assessed against Diane.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    Ronnie DAVIS and Rebecca Davis Husband and Wife, Plaintiffs-Appellees v. Thomas SWEENEY, Defendant-Appellant.
    No. 44,997-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 3, 2010.

      Malcolm X. Larvadain, for Appellant.
    Nelson W. Cameron, for Appellee.
    Before BROWN, CARAWAY, and DREW, JJ.
   BROWN, Chief Judge.

h Plaintiffs, Ronnie and Rebecca Davis, are the owners of a 1989 Glastron ski boat. Defendant, Thomas Sweeney, owns and operates a boat repair shop in Shreveport, Louisiana. Davis took his ski boat to Sweeney for customizing on September 28, 2004, and indicated that he needed the’ boat back by the summer of 2005. Sweeney agreed. The custom work to be done included, inter alia, painting the boat and trailer in LSU purple and gold, refitting the seats with LSU-colored fabric, and installation of a radio. The agreed upon price for the work was $3,500. A $1,000 down payment was made by Davis, with the balance to be paid upon completion of the work.

Sweeney began the repairs, but, according to him, it was impossible to finish the job at the agreed upon price. Plaintiffs refused to pay additional money, and the work ceased. According to plaintiffs, Sweeney would not let them take their boat, nor would he complete the repairs. Amicable attempts to settle the dispute failed, and the instant suit for breach of contract was filed in Shreveport City Court on December 5, 2006. The matter was tried on April 15, 2008, and the trial court’s judgment was signed on April 24, 2008. Judgment was rendered in favor of plaintiffs ordering defendant to pay $2,500 for loss of value and $2,000 for loss of use of the ski boat, together with $600 in expert witness fees. Sweeney was also ordered to return plaintiffs’ boat trailer and Evinrude 90 boat motor. It is from this judgment that defendant has appealed.

| ¿Discussion

Defendant first urges that the trial court erred in awarding plaintiffs $2,500 for the loss of value of their ski boat. According to Sweeney, this award was improperly based upon the testimony of Barney Per-menter, who was accepted as an expert in the structural, mechanical and electrical workmanship of boats, not as an expert in the valuation of boats.

The trier of fact, while not bound by expert testimony, must hear and weigh the testimony of experts in the same manner as other evidence. Reasonable and well-founded opinion should be considered. Head v. Head, 30,585 (La.App.2d Cir.05/22/98), 714 So.2d 231; Watts v. Watts, 552 So.2d 738 (La.App. 1st Cir.1989). The weight to be given to an expert’s testimony is dependent upon the professional’s qualifications and experience of the expert and especially upon the facts on which that expert’s opinion is based. Head, supra; Goodwin v. Goodwin, 618 So.2d 579 (La.App. 2d Cir.1993), unit denied, 623 So.2d 1340 (La.1993). The effect and weight to be given the expert’s testimony depends on the validity of the underlying facts relied upon by the expert and rests within the broad discretion of the trial judge. Head, supra.

The record does not show an abuse of the trial court’s discretion in this case. Plaintiffs’ expert, Barney Permenter, was familiar with the boat and the repairs to it. He visited defendant’s shop and examined the boat for 45 minutes to an hour. Per-menter noted that the boat was practically a total loss because its hull had been detached. Permenter’s opinion was based upon the assumption that the boat was in good operating condition at the |stime it was presented to defendant for refitting and repair. Davis testified to the condition of the boat at trial, and noted that he paid $5,000 for the boat. Permenter valued the boat at between $1,500 and $2,000. He also stated that the cost to complete painting the trailer would be another $1,000.

There was no contradictory expert evidence presented. Furthermore, as observed by Permenter, inasmuch as the boat had been taken apart and rendered unrepairable, it was impossible to determine the market value of the ski boat as of the time of trial. We cannot say that the trial court’s award of $2,500 is clearly wrong or manifestly erroneous in light of the evidence presented at trial.

In his second assignment of error, defendant asserts that the trial court erred in awarding plaintiffs damages for loss of use. Sweeney contends that this award was an impermissible nonpecuniary damage award under La. C.C. art. 1998.

Damages for nonpecuniary loss may be recovered when a contract, because of its nature, is intended to gratify a nonpecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew or should have known, that his failure to perform would cause that kind of loss. La. C.C. art. 1998. Thus, if plaintiffs can show that they intended to gratify a significant nonpecuniary interest by way of the contract, and the nature of the contract supports this contention, and that Sweeney either knew or should have |4known that failure to perform would cause nonpecuniary damages to the Davises, then such damages are recoverable. Young v. Ford Motor Co., Inc., 595 So.2d 1123 (La.1992); Stonecipher v. Mitchell, 26,575 (La.App.2d Cir.05/10/95), 655 So.2d 1381. Whether the gratification of some nonpecuniary interest is a principal object of a contract is a question of fact. Id. When damages are insusceptible of precise measurement, much discretion is left to the court for the reasonable assessment of those damages. La. C.C. art. 1999; Stonecipher, supra.

Ronnie Davis testified about the pleasurable family experiences he, his wife and children had when they used their ski boat for camping, cruising or skiing. Davis also stated that when he left his boat in 2004 for refitting/customization, he told Sweeney that although there was no rush on the job, he needed the boat back for the summer of 2005. Mrs. Davis requested that the family be allowed to use the boat for the Christmas festival in Natchitoches, but Sweeney refused to return the boat, even for a weekend. Both plaintiffs testified to the loss of use and enjoyment of their ski boat. The trial of this matter was in April 2008; as of that time, plaintiffs’ ski boat had been taken apart and was not able to be assembled for any kind of use due to the length of time that its hull had been removed. Plaintiffs lost the use of their ski boat forever; they recovered only the trailer, which did not have its license place, nor were there any taillights or running boards.

When Davis brought his boat to Sweeney, he talked to defendant about “pimping [his] boat out.” The specific work they talked about ^included having the boat painted and the seats upholstered in LSU purple and gold, installation of a radio, and a few other things that were to come after the painting and upholstery work. The parties’ agreement was not one for simple repairs, but involved the updating and upgrading of boat’s exterior and seating in the colors of the Davises’ favorite college team. If Sweeney did not have actual knowledge of the nonpecuniary interest the Davises intended to gratify as a result of the customizing work they wanted done to their boat, he certainly should have. Plaintiffs have established the requisite elements necessaiy to support the trial court’s award of damages for loss of use. We cannot say that the trial court was clearly wrong or manifestly erroneous in its assessment of $2,000 for plaintiffs’ loss of use of their ski boat. See, Heath v. Brandon Homes, Inc., 36,184 (La.App.2d Cir.08/14/02), 825 So.2d 1262; Stonecipher, supra; Taylor v. Burton, 97-1348 (La.App. 3d Cir.03/06/98), 708 So.2d 531; Isabelle v. Bayliner Marine Corp., 05-2593 (La.App. 1st Cir.11/03/06), not reported in So.2d, 2006 WL 3187573, writ denied, 07-0174 (La.05/11/07), 955 So.2d 1279.

Finally, defendant argues that the trial court’s $600 expert witness fee award is excessive. According to defendant, the trial court compensated plaintiffs’ expert at an amount which is more than twice his hourly rate.

The trial judge has great discretion in fixing and awarding costs and expert witness fees. City of Shreveport v. Noel Estate, Inc., (La.App.2d Cir.09/27/06), 941 So.2d 66, writ denied, 06-2774 (La.01/26/07), 948 So.2d 171. A trial court’s assessment of costs can be reversed by an appellate [ court only upon a showing of abuse of discretion. Id.; Allstate Enterprises, Inc. v. Brown, 39,467 (La.App.2d Cir.06/29/05), 907 So.2d 904.

As to expert witness fees, witnesses called to testify as experts shall be compensated for their services, with the amount to be determined by the court and taxed as costs to the party cast in judgment. La. R.S. 13:3666. As noted by this court in City of Shreveport, supra, an expert witness is entitled to reasonable compensation for his court appearance and for his preparatory work. Factors to be considered in setting an expert witness fee include: the time spent testifying, the time spent in preparing for trial, the time spent away from regular duties while waiting to testify, the extent and the nature of the work performed, the expert’s knowledge and attainments, and the helpfulness of the expert’s report and testimony. Id.

In the instant case, the record supports the trial court’s award of $600 for Barney Permenter’s fee. While Permenter stated that his hourly fee was $70 per hour, he spent numerous hours preparing for and then testifying at trial. His in-court time was four hours. Permenter visited defendant’s shop, which took 45 minutes to an hour. Permenter examined and investigated the list of supplies purchased by Sweeney, as well as the record of hours allegedly spent by defendant on the project. Finally, Permenter compiled a report for plaintiffs documenting his findings and opinions. We find no abuse of the trial court’s discretion in this matter.

Conclusion

For the reasons set forth above, the judgment of the trial court is affirmed. Costs are assessed to defendant-appellant, Thomas Sweeney.

      . The boat had been disassembled and because the hull had been separated from the rest of the boat, it was plaintiffs’ expert’s opinion that the boat could not be repaired to its original condition. Defendant was allowed to keep the boat together with plaintiffs’ $1,000 deposit.

      . Civil Code article 1998 also provides that, regardless of the nature of the contract, non-pecuniary damages may be recovered when the obligor intended, through his failure, to aggrieve the feelings of the obligee.