text:
    Joshua REED v. John R. EVANS, Jr. (individual/employee) and St. Tammany Parish Government.
    No. 2009 CA 1120.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Carl A. Perkins, Covington, LA, for Plaintiff-Appellant, Joshua Reed.
    Stan E. Branton, Charles M. Hughes, Jr., Gary L. Hanes, Ryan G. Davis, Mandeville, LA, for Defendants-Appellees, John R. Evans, Jr. (Individual/Employee) and St. Tammany Parish Sheriffs Office.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

12In this case, plaintiff seeks review of the trial court’s judgment maintaining defendants’ exceptions raising the objections of prescription and insufficiency of service and citation, granting defendants’ motion to dismiss, and dismissing plaintiffs cause of action against defendants. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 20, 2006, plaintiff, Joshua Reed was involved in an automobile accident with defendant, John R. Evans, a deputy with the St. Tammany Parish Sheriffs Office. Mr. Reed’s original petition for damages was filed on August 20, 2007. In said petition, Mr. Reed erroneously alleged that Deputy Evans was an employee of the St. Tammany Parish Government (“Parish Government”) and named both Deputy Evans and the Parish Government as defendants. Mr. Reed requested service on the Parish Government, but made no request for service on Deputy Evans.

In response to Mr. Reed’s petition for damages, the Parish Government filed a general denial and then later a motion for summary judgment, asserting that Deputy Evans was not one of its employees. On February 1, 2008, Mr. Reed filed a first amending petition, substituting the St. Tammany Parish Sheriffs Office (“STPSO”) as a defendant in place of the Parish Government. The amending petition correctly asserted that at the time of the accident, Deputy Evans was an employee of the STPSO. Mr. Reed requested service of the amending petition on STPSO and, for the first time, sought service on Deputy Evans, more than seventeen months following the accident.

On March 10, 2008, Rodney J. “Jack” Strain, Jr., appearing in his official capacity as Sheriff of the Parish of St. Tammany, filed an exception raising the objection of prescription based on Mr. Reed’s (1) failure to request service of the original petition on Deputy Evans within ninety (90) days of the filing of the petition in direct violation of La. |sR.S. 13:5107(D), and (2) failure to timely institute suit against Sheriff Strain/STPSO within one (1) year of the date of the accident. On that same date, Deputy Evans filed an exception raising the objection of insufficiency of service and citation, as well as a motion to dismiss, both based on Mr. Reed’s failure to request service on him within the statutorily prescribed time set forth in La. R.S. 13:5107(D).

On July 23, 2008, the trial court heard arguments concerning the exceptions and the motion to dismiss from the parties. After considering the record and the applicable law, the trial court maintained both exceptions and granted Deputy Evans’ motion to dismiss. In a judgment signed September 19, 2008, the trial court dismissed, with prejudice, Mr. Reed’s claims against Sheriff Strain in his official capacity as Sheriff of STPSO, and dismissed, without prejudice, Mr. Reed’s claims against Deputy Evans. Mr. Reed filed a motion for new trial, which was denied by the trial court in a judgment rendered December 5, 2008. This appeal by Mr. Reed followed. The sole issue presented on appeal for our review is as follows: “Whether or not prescription is ^interrupted against an unnamed joint and solidary obligor who is later named and served while the original suit is pending and a proper party was originally sued in the proper venue in a timely fashion.”

DISCUSSION

Ordinarily, the party pleading prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiffs claim has prescribed, the burden shifts to the plaintiff to demonstrate prescription was interrupted or suspended. Taylor v. Babin, 2008-2063, p. 13 (La.App. 1 Cir. 5/8/09), 13 So.3d 633, 642, writ denied, 2009-1285, (La.9/25/09), 18 So.3d 76. Thus, in this case, Mr. Reed bore that burden of proof and failed to satisfy same.

On appeal, Mr. Reed relies heavily on the case of Cali v. Cory, 2004-1227 (La.App. 4 Cir. 11/3/04), 886 So.2d 648, writ denied, 2004-3155 (La.2/25/05), 894 So.2d 1153, in support of his argument that suit against one tortfeasor interrupts the prescriptive period against all jointly liable tortfeasors. In Cali, the plaintiff, who appeared in her individual capacity and as natural tutrix for her minor child, filed a survival and wrongful death suit. When the State of Louisiana, through the Department of Transportation and Development (“DOTD”) was named as a defendant in a supplemental and amending petition, DOTD filed exceptions urging the objections of untimely service and prescription. The Cali court held that the prescriptive period was interrupted as to DOTD by the filing of the initial petition against a defendant automobile driver, the driver’s insurer, and the decedent’s uninsured/underinsured carrier and his excess umbrella carrier. The court reasoned that La. R.S. 13:5107(D) and La. Civ.Code art. 2324 must be read in pari materia, and concluded that “[a]s long as prescription is interrupted against one joint tortfeasor, it is interrupted against all.” Cali, 2004-1227 at 4-5, 886 So.2d at 651. The court found that plaintiffs supplemental and amending petition asserted a claim of joint liability between DOTD and the other tortfeasors. Thus, the court determined that plaintiffs original petition interrupted prescription as to all joint tortfeasors. Further, the court concluded that plaintiffs supplemental and amending petition naming DOTD as a joint tortfeasor related back to |Bthe original filing date of the initial petition and was timely served within ninety days of its filing. Id.

This court has previously considered the reasoning of the Cali court, found it to be unpersuasive, and declined to follow it. Johnson v. Shafor, 2008-2145, pp. 8-9 (La.App. 1 Cir. 7/29/09), 22 So.3d 935, 939-940. In Johnson, the plaintiffs’ initial petition against Slidell Memorial Hospital (“SMH”) for survival and wrongful death claims in a medical malpractice suit was dismissed, without prejudice, for failure to timely request service pursuant to La. R.S. 13:5107(D). Johnson, 2008-2145 at 7, 22 So.3d at 939. The plaintiffs filed a subsequent petition against SMH setting forth identical allegations as those contained in the initial petition. In response, SMH filed an exception raising the objection of prescription and peremption. The trial court ultimately granted SMH’s exception raising the objection of prescription, dismissing plaintiffs’ claims, with prejudice. Johnson, 2008-2145 at 4-5, 22 So.3d at 937-938.

On appeal, this court agreed with the trial court’s ruling that the plaintiffs’ medical malpractice claims against SMH had prescribed by the time the second suit was filed.

Where there is a conflict between two statutory provisions, the statute that is more specifically directed to the matter at issue must prevail over the statute that is more general in character. City of Pineville v. American Federation of State, County, and Municipal Employees, 00-1983, p. 5 (La.6/29/01), 791 So.2d 609, 613; Thomas v. Louisiana Dep’t of Public Safety and Corrections, 02-0897, pp. 9-10 (La.App. 1st Cir.3/28/03), 848 So.2d 635, 640-41, writ denied, 03-2397 (La.11/21/03), 860 So.2d 552. Louisiana Civil Code article 2324 is a general rule addressing the interruption of prescription against joint tortfeasors. By contrast, La. R.S. 13:5107 is a more specific statute addressing the more narrow issue of the interruption of prescription when governmental defendants are involved in the litigation.
In Kimball v. Wausau Ins. Companies, 04-626 (La.App. 5th Cir.1/25/05), 892 So.2d 690, writ denied, 05-0755 (La.5/6/05), 901 So.2d 1104, the court applied this basic statutory interpretation rule when interpreting La. R.S. 13:5107 in a suit with analogous facts. Plaintiff, the father of a teenager killed in an automobile accident filed suit, naming as defendants the driver of the other vehicle involved in the accident, that driver’s employer and insurer, the Parish of Jefferson, and the State of Louisiana. The plaintiff did not request service of process on the Parish of Jefferson, which filed a motion for involuntary dismissal based on the untimely service. Before the motion was decided, the plaintiff also filed a second suit against the Parish, seeking the same damages. The Parish filed an exception urging the objection of prescription in response to the | fisecond suit. The trial court ultimately granted the involuntary dismissal and maintained the exception. On appeal, the plaintiff urged that prescription was continuously interrupted because the second suit on the same subject matter was filed and timely served during the pendency of the first unserved suit. The Kimball court rejected the plaintiffs argument, concluding that prescription had never been interrupted as to the Parish:
We think the statute is clear, and that the language unambiguously carves out an exception to the general rules of prescription in favor of the state or its political subdivisions. La. R.S. 13:5107, a specific, special statute dealing with service of citation and process upon the state or a political subdivision, supersedes the general statutes (on service and prescription). Because the first suit in the present case was properly dismissed, prescription was never interrupted as to the Parish of Jefferson. [Footnote omitted.] Kimball, 04-626, p. 7, 892 So.2d at 693.
In the instant case, we likewise conclude that La. R.S. 13:5107 D(3) is controlling, and because plaintiffs failed to timely request service of their initial lawsuit against SMH, the filing of the first lawsuit did not interrupt or suspend the running of prescription as to SMH, a political subdivision. Thus, plaintiffs’ claims against SMH had prescribed before the second lawsuit against SMH was filed.

Johnson, 2008-2145 at 9-11, 22 So.3d at 940-941. [Footnote omitted.]

Similarly, in the case before us now, La. R.S. 13:5107(D) is controlling. It is undisputed that Sheriff Strain, in his official capacity as Sheriff of STPSO, qualifies as a “political subdivision” as it is defined in La. R.S. 13:5102(B). Thus, the provisions of La. R.S. 13:5107(D) are applicable to both Sheriff Strain and to Deputy Evans as his employee.

It is clear from the record in this matter that the accident in question occurred on August 20, 2006, and the original petition for damages was filed on August 20, 2007. However, there was no request for service on Deputy Evans until the filing of the amending petition on February 1, 2008. Thus, pursuant to the provisions of La. R.S. 13:5107(D)(2), Deputy Evans’ exception raising the objection of insufficiency of service Land citation was appropriately maintained, and Mr. Reed’s claims against Deputy Evans were properly dismissed.

With regard to the objection of prescription raised by Sheriff Strain, as correctly noted by Sheriff Strain and Deputy Evans in brief to this court, the “dismissal of Deputy Evans as a defendant by virtue of the sustaining of his exception and/or his motion to dismiss filed herein, negates any interruption of prescription which might otherwise have occurred by reason of the filing of the original petition.” See La. R.S. 13:5107(D)(3). Sheriff Strain and Deputy Evans added further, “[i]n the absence of an interruption by filing suit against Deputy Evans and properly requesting service on him, prescription continued to toll and the time limitation for filing suit against Sheriff Strain expired long before the amending petition” was filed “on February 1, 2008, some seventeen months after the accident.” Thus, because Mr. Reed failed to timely request service of his initial lawsuit against Deputy Evans, the filing of the first lawsuit did not interrupt or suspend the running of prescription as to Sheriff Strain. Accordingly, Mr. Reed’s claims against Sheriff Strain had prescribed before the amending petition was filed.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court and assess all costs associated with this appeal to plaintiff/appellant, Joshua Reed.

AFFIRMED.

      . According to the record, Mr. Reed's claims against the Parish Government were dismissed pursuant to an order of dismissal signed by the trial court on March 10, 2008.

      .- Although there is nothing in the record before us to verify service, the following statement is found in a memorandum filed by Deputy Evans: “The record of this proceeding indicates that both [STPSO and Deputy Evans] were served on February 13, 2008.”

      . Louisiana Revised Statutes 13:5107(D) provides as follows:
      D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
      (2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.
      (3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue.

      . We note that Mr. Reed actually appealed from the trial court’s denial of his motion for new trial. ”[T]he established rule in this circuit is that the denial of a motion for new trial is an interlocutory and non appealable judgment.” McKee v. Wal-Mart Stores, Inc., 2006-1672, p. 8 (La.App. 1 Cir. 6/8/07), 964 So.2d 1008, 1013. (By 2005 La. Acts No. 205, effective January 1, 2006, La.Code Civ. P. art. 2083 was amended to remove the longstanding provision that interlocutory judgments that "may cause irreparable harm” are appealable. An interlocutory judgment is now appealable only when expressly provided by law. Accordingly, the denial of a new trial is not generally appealable.) The Louisiana Supreme Court, however, has instructed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits, when it is clear from appellant’s brief that the appeal was intended to be on the merits. Carpenter v. Hannan, 2001-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 2002-1707 (La.10/25/02), 827 So.2d 1153. It is obvious from Mr. Reed’s brief that he intended to appeal the judgment on the merits. Thus, we will treat the appeal accordingly.

      . Pursuant to La. R.S. 13:5102(B), "political subdivision” is defined as: "Any parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.”


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    Jack BENNETT, Jr. v. LAPEROUSE AND SON, LTD., Lincoln General Insurance Company, Progressive Security Insurance Company, and Lloyds Underwriters at London.
    No. 2009 CA 1099.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.

      Christopher D. Shows, Baton Rouge, LA, for PlaintifftAppellant, Jack Bennett, Jr.

      Robert W. Fenet, Baton Rouge, LA, for Defendant/Appellee, Lloyds Underwriters at London.
    Before WHIPPLE, HUGHES, and WELCH, JJ.
   HUGHES, J.

| .This is an appeal of a judgment denying a motion to enforce a settlement agreement and for penalties. For the reasons that follow, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

This action originally arose out of the breach of a contract for services entered into between Jack Bennett and Laperouse and Son, Ltd. Jack Bennett filed a petition for damages against the company and its insurers, including Lloyds Underwriters at London (Lloyds). A mediation was eventually scheduled on September 17, 2008. Although Hurricane Gustav hit the Baton Rouge area on September 1, 2008, the mediation went forward as scheduled on September 17, 2008, and a settlement was reached between the parties. It is undisputed that Lloyds agreed to pay to Mr. Bennett the sum of $17,000.00 within thirty (30) days. That agreement was reduced to writing. When payment was not received within thirty days, Mr. Bennett filed a motion to enforce the settlement agreement and for penalties. After a hearing, the motion was denied. Mr. Bennett appeals.

MOTION TO DISMISS

Lloyds alleges that this appeal should be dismissed on the basis that the judgment at issue is not a final judgment under LSA-C.C.P. art. 2083 and therefore not appealable. Because the judgment before us disposes of all remaining issues in this case and thereby concludes the litigation, we find that it is appealable and properly before this court. The motion is denied.

1,LAW AND ARGUMENT

At the hearing on the motion, Mr. Bennett’s attorney argued that Mr. Bennett was entitled to penalties and fees under either of two statutory provisions: LSA-R.S. 22:658 (now 22:1892) and LSA-R.S. 22:1220 (now 22:1973). The decision to assess statutory penalties is a factual determination, in part, and is reviewed under the manifest error standard of review. Joubert v. Broussard, 2002-911 (La.App. 3 Cir. 12/11/02), 832 So.2d 1182, 1185, writ denied, 2003-0060 (La.3/21/03), 840 So.2d 552; McClendon v. Economy Fire & Cas. Ins. Co., 98-1537 (La.App. 3 Cir. 4/7/99), 732 So.2d 727, 730. Further, statutory penalties are penal and should be strictly construed. Sultana Corporation v. Jewelers Mutual Insurance Company, 2003-0360 (La.12/2/03) 860 So.2d 1112, 1117; Theriot v. Midland Risk Ins. Co., 95-2895 (La.5/20/1997) 694 So.2d 184, 186; Hart v. Allstate Ins. Co., 437 So.2d 823, 827 (La.1983.)

1. Penalties Under LSA-R.S. 22:658

Louisiana Revised Statutes 22:658 reads, in pertinent part:

A. (1) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any claim due any insured within thirty days after receipt of satisfactory proofs of loss from the insured or any party in interest. The insurer shall notify the insurance producer of record of all such payments for property damage claims made in accordance with this Paragraph. (2) All insurers issuing any type of contract, other than those specified in R.S. 22:1811, R.S. 22:1821, and Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950, shall pay the amount of any third party property damage claim and of any reasonable medical expenses claim due any |4bona fide third party claimant within thirty days after written agreement of settlement of the claim from any third party claimant.
⅝ ‡ ⅜ ⅜
B. (1) Failure to make such payment within thirty days after receipt of such satisfactory written proofs and demand therefor or failure to make a written offer to settle any property damage claim, including a third-party claim, within thirty days after receipt of satisfactory proofs of loss of that claim, as provided in Paragraphs (A)(1) and (4), respectively, or failure to make such payment within thirty days after written agreement or settlement as provided in Paragraph (A)(2), when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to the insured, or to any of said employees, or in the event a partial payment or tender has been made, fifty percent of the difference between the amount paid or tendered and the amount found to be due as well as reasonable attorney fees and costs. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings. (Emphasis added.)
⅜ ⅜ ⅜ ⅜

The settlement agreement of September 17, 2008 is found in the record and is in writing. It is undisputed that the settlement funds were not paid until October 29, 2008, outside of the thirty-day limitation afforded by the statute. Mr. Bennett therefore met his burden of establishing that Lloyds was in violation of the statute and the burden shifted to Lloyds to prove that its actions were not arbitrary, capricious, or without probable cause. Lloyds introduced no testimony or other evidence at the hearing. Counsel for Lloyds merely argued that the money was not paid timely because his office had been damaged by Hurricane Gustav. Notably, the hurricane hit more |sthan two weeks prior to the mediation. The record contains no evidence evidencing the hardship claimed by Lloyds’ counsel. Absent any such evidence, the trial court had no basis for its factual finding that the damage caused by the hurricane prevented Lloyds from paying the settlement timely. The statute uses the mandatory term “shall” and therefore leaves no room for discretion. Under the strict construction of LSA-R.S. 22:658, we find that Lloyds shall pay fifty percent of the amount of the settlement, or $8,500.00, as a penalty.

2. Penalties Under LSA-R.S. 22:1220

We also find guidance from the Sultana court for our review of the trial court’s decision not to award penalties under LSA-R.S. 22:1220. The statute reads, in pertinent part:

A. An insurer, including but not limited to a foreign line and surplus line insurer, owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
B. Any one of the following acts, if knowingly committed or performed by an insurer, constitutes a breach of the insurer’s duties imposed in Subsection A:
(1) Misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue.
(2) Failing to pay a settlement within thirty days after an agreement is reduced to writing.
* * * *
C. In addition to any general or special damages to which a claimant is entitled for breach of the imposed duty, the claimant may be awarded penalties assessed against the insurer in an amount not to exceed two times the damages sustained or | fvfive thousand dollars, whichever is greater. Such penalties, if awarded, shall not be used by the insurer in computing either past or prospective loss experience for the purpose of setting rates or making rate filings. (Emphasis added.)
⅜ ⅜ $ ⅜

The Sultana court held that if one of the enumerated actions of section B had been shown, it matters not whether the insurer’s actions were arbitrary, capricious, or without probable cause. See Sultana, 860 So.2d at 1118. In this case, the only showing necessary is that the insurer acted knowingly. And, as was the defendant company in the Sultana case, Lloyds was represented by Louisiana counsel who presumably knew the requirements of the statute. Accordingly, Lloyds is not shielded from the failure of its counsel to notify it of the settlement timely, if that be the case. Sultana, 860 So.2d at 1119.

The Sultana court further held that notwithstanding the prior split in the circuits, a claimant is not required to prove actual damages under LSA-R.S. 22:1220(A) as a prerequisite for an award of penalties under LSA-R.S. 22:1220(C). Sultana, 860 So.2d at 1119. However, the ruling makes clear that while the term “shall” in subsection A mandates an award of damages, if proven, the term “may” in subsection C leaves the court with the discretion to award or deny penalties even in the event actual damages are sustained. Moreover, it is the plaintiffs burden to prove the damage he suffered as a result of defendant’s fault, and to support an award there must be evidence in the record. Sultana, 860 So.2d at 1118.

The record herein reveals no evidence of damages suffered by Mr. Bennett as a result of Lloyd’s conduct. Therefore, there was no mandatory damage award. Any 1220(C) penalty award was entirely up to the discretion 17of the court. In light of the fact that no actual damages were sustained, we do not find an abuse of the trial court’s discretion in declining to award 1220(C) penalties.

CONCLUSION

Judgment is hereby rendered in favor of Jack Bennett, Jr. and against Lloyds Underwriters at London in the additional amount of $8,500.00. All costs of this appeal are assessed to Lloyds Underwriters at London.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      .Art. 2083. Judgments appealable.
      A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
      B. In reviewing a judgment reformed in accordance with a remitter or additur, the court shall consider the reasonableness of the underlying jury verdict.
      C.An interlocutory judgment is appeal-able only when expressly provided by law.

      . The failure to award attorney fees was not assigned as error in this appeal.

      . These statutes were renumbered by Act 415 of the 2008 Louisiana Legislature, effective January 1, 2009. LSA-R.S. 22:658 is now LSA-R.S. 22:1892 and LSA-R.S. 22:1220 is now LSA-R.S. 22:1973.


author: WHIPPLE, J. HUGHES, J.,

text:
    Anthony ST. PIERRE v. Loretta Ann Rivera ST. PIERRE.
    No. 2008 CA 2475.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Patricia H. Douglas, Prairieville, LA, for Plaintiff/Appellee, Anthony St. Pierre.

      S. Stephen Spring, II, Baton Rouge, LA, for Defendant/Appellant, Loretta St. Pierre.
    Before WHIPPLE, HUGHES and WELCH, JJ.
   WHIPPLE, J.

|2The defendant, Loretta St. Pierre, appeals a judgment which declared that she and her ex-husband, Anthony St. Pierre, operated under a community property regime during their marriage. For the following reasons, we dismiss the appeal and remand the case for further proceedings in the trial court.

FACTS AND PROCEDURAL HISTORY

Loretta St. Pierre and Anthony St. Pierre were married on October 1, 1999, after residing together for at least seven years. On August 4, 2006, Mr. St. Pierre filed a petition for divorce, and by judgment dated December 11, 2006, the parties were divorced.

On September 7, 2007, the trial court conducted a hearing to determine the classification of the parties’ property as community, and thus subject to partition, or separate. At the close of the hearing, after receiving testimony and argument, the trial court concluded that the parties operated under a community property regime during their marriage. Thereafter, in a judgment dated November 15, 2007, the trial court, based on an oral stipulation of the parties, set forth the assets acquired and debts incurred during the parties’ marriage. In the judgment, the trial court further set a formal hearing relative to valuation of the listed items and any other items inadvertently omitted from the list.

On March 10, 2008, Ms. St. Pierre filed a “Motion to Recons[id]er Former Denial of Plaintiffs [sic] Request that this Court Find No Community of Acquets and Gains Existed During the Marriage of the Parties.” In her motion, Ms. St. Pierre contended that she and Mr. St. Pierre had entered into an oral stipulated agreement that there would be no |scommunity of acquets and gains established during their marriage and that the parties had acted in conformity with that agreement.

A hearing on the motion was conducted on March 20, 2008, after which the trial court, in written reasons for judgment, again found that the parties were subject to a community property regime. By judgments dated April 30, 2008 and May 15, 2008, the trial court held that it had entered judgment as “set forth and outlined in the Written Reasons for Judgment,” which were appended to both judgments as “Exhibit A.” Ms. St. Pierre then instituted this appeal.

Subsequently, by order dated January 23, 2009, this court, ex proprio motu, issued a rule to show cause as to why the appeal should not be dismissed on the basis that the judgment appealed from did not identify against whom it was rendered or what relief was awarded to whom and did not contain appropriate decretal language. Although the appeal was thereafter dismissed by this court on March 19, 2009, this court, on application for rehearing by the defendant, ordered that the appeal be remanded for the limited purpose of having the trial court sign a valid written judgment including appropriate language as required by LSA-C.C.P. art. 1918. In so ordering, this court also stated as follows:

|4We also note that any judgment would be a partial judgment under La.Code Civ. P. art. 1915B and would require appropriate certification in the discretion of the trial court in order to be appealable. [Emphasis added.]

On remand, the trial court then signed a judgment dated August 11, 2009, in favor of Mr. St. Pierre, declaring that the parties operated under a community property regime during their marriage. The judgment further provides: “This Court certifies the judgment as final and appealable, in consideration of the prior stipulation of the parties and the R.J. Messinger, Inc. v. Rosenblum factors, 894 So.2d 1113, 1122 ( [La.]5/2/05).” After this court received the August 11, 2009 judgment, containing de-cretal language, another panel of this court recalled the rule to show cause by order dated September 17, 2009, given the trial court’s inclusion of decretal language on remand. The matter was then assigned for docketing.

APPELLATE JURISDICTION

Louisiana Code of Civil Procedure article 1841 provides:

A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.

The trial court’s August 11, 2009 judgment, which simply declared that the parties operated under a community property regime during their marriage, is clearly a partial judgment. While the duty panel of this court recalled the rule and maintained this appeal upon receipt of a judgment containing decretal language, the concurrent jurisdictional issue of whether this partial judgment is a final judgment for purposes of immediate appeal must also be considered.

| ^Whether a partial judgment is appeal-able is determined by examining the requirements of LSA-C.C.P. art. 1915. Louisiana Code of Civil Procedure article 1915(B)(1) provides that when a court renders a partial judgment as to “one or more but less than all of the claims, demands, issues, or theories,” presented in an action, that judgment shall not constitute a final judgment, and thus shall not be immediately appealable, “unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” (Emphasis added). This provision attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113, 1122.

Although the Louisiana Supreme Court has specifically held that the trial court should give explicit reasons, either oral or written, for its determination, the Court has also noted that the trial court’s failure to state the explicit reasons for its determination that there is no just reason for delay does not allow the appellate court to summarily dismiss an appeal of a judgment that has been designated as final under LSA-C.C.P. art. 1915(B). R.J. Messinger, Inc., 894 So.2d at 1122. However, where, as here, the trial court has designated a partial judgment as final under LSA-C.C.P. art. 1915(B)(1) without giving express reasons why there is no just reason to delay the appeal, the appellate court must make a de novo determination of whether the certification was proper. R.J. Messinger, Inc., 894 So.2d at 1122.

Further, in conducting a de novo review in matters where the trial court fails to give explicit reasons for the designation, courts of appeal can consider the same criteria used by the trial court, which include: (1) the | (¡relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the trial court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. R.J. Messinger, Inc., 894 So.2d at 1122.

Ms. St. Pierre requested in the court below a reconsideration of the trial court’s earlier determination that the parties operated under a community property regime during their marriage. In the trial court below and in this appeal, Ms. St. Pierre argues that the trial court should have found that the parties operated under a separate property regime because the parties had orally agreed to be separate in property and had acted in accordance with that agreement throughout the marriage. The judgment now before us merely reaffirms the trial court’s earlier determination that, given the absence of compliance with LSA-C.C. art. 2331, a community property regime existed between the parties. However, the judgment before us does not address or resolve the closely related issues of whether an accounting is due, and by whom; what is the proper valuation of the assets of the community; or what is the proper division and allocation of the community assets and liabilities between the parties. An effective remedy is available to Ms. St. Pierre (or Mr. St. Pierre) once the trial court renders a judgment partitioning the parties’ assets and liabilities.

While the learned trial judge was obviously attempting to accommodate the wishes of the parties herein in certifying the judgment as immediately appealable in order to obtain review of the trial court’s interpretation of the meaning of LSA-C.C. art. 2331, to permit an appeal of 17such a judgment would encourage multiple appeals and piecemeal litigation and would prohibit expeditious disposition of community property cases. Accordingly, we find, upon de novo review of the entire matter before us, that the trial court’s designation of the judgment as final, while well-intentioned, was improper. Thus, we dismiss Ms. St. Pierre’s appeal and remand this matter to the trial court for further proceedings.

CONCLUSION

For the above and foregoing reasons, we dismiss the appeal taken from the August 11, 2009 judgment, which we find is a partial judgment not subject to immediate appeal. This matter is hereby remanded for further proceedings. Costs of this appeal are assessed against Loretta St. Pierre.

APPEAL DISMISSED; REMANDED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. Judicial efficiency warrants review of whether a community of acquets and gains existed between the parties. If this court were to determine that the trial court erred in finding a community existed, the need for further partition proceedings would be obviated. However, if this court declines to review the propriety of the trial court ruling on this issue, but upon a subsequent appeal following partition proceedings rules that there was no community, expenses and resources expended in partition litigation, both by the litigants as well as by the trial court, would have been for naught.

      . The April 30, 2008 and May 15, 2008 judgments are identical except that the April 30, 2008 judgment had not been signed by Ms. St. Pierre's counsel as having been also submitted by him. Although counsel for Ms. St. Pierre had not signed the judgment, the April 30, 2008 judgment was signed by the trial court and, thus, was a valid judgment. See generally LSA-C.C.P. arts. 1911 and 1914(B). Accordingly, the subsequently signed May 15, 2008 judgment, which was identical in substance to the earlier judgment, was superfluous and unnecessary, and, consequently, invalid. See State v. One (1) 1991 Pontiac Trans Sport Van, VIN # 1GMCU06D3MT208532, 98-64 (La.App. 5th Cir.7/9/98), 716 So.2d 446, 448. Nonetheless, given that both judgments were identical, it is apparent that ’ Ms. St. Pierre intended to appeal from the valid April 30, 2008 judgment. Additionally, given the obvious lack of prejudice due to Ms. St. Pierre's misstatement of the date of the judgment she intended to appeal, we conclude that this misstatement does not provide a basis for dismissal of this appeal, which was timely taken from the earlier April 30, 2008 judgment. See State, Department of Transportation & Development v. Estate of Summers, 527 So.2d 1099, 1101-1102 (La.App. 1st Cir.1988), and Greenfield v. Lykes Brothers Steamship Company, 2002-1377 (La.App. 1st Cir.5/9/03), 848 So.2d 30, 33.


author: McClendon, J.

text:
    STATE of Louisiana in the Interest of B.E.T.
    No. 2009 CJ 1782.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 12, 2010.
    Theresa Beckler, Sherry Watters, Hara-han, Louisiana, for Plaintiff/Appellant State of Louisiana Department of Social Services, Office of Community Services.
    Before DOWNING, GAIDRY and McClendon, jj.
   McClendon, J.

|2This is an appeal of a judgment dismissing the father listed on a birth certificate from adoption proceedings after it was determined that he was not the biological father. For the reasons that follow, we reverse the judgment and remand to the district court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

On July 4, 2008, B.M. gave birth to her son, B.E.T. in Hammond, Louisiana. At the time of B.E.T.’s birth, E.T. believed that he was the biological father, and his name was listed on the birth certificate as the father.

On July 7, 2008, the district court signed an instanter order placing B.E.T. in the custody of the State of Louisiana, Department of Social Services, Office of Community Services (OCS) for placement. The affidavit by OCS in support of the order stated that at the delivery of B.E.T., B.M. tested positive for cocaine. B.E.T. was also tested and was positive for cocaine. B.M. reported that she had abused cocaine for the previous two years. She also stated that she had lived in numerous places during her pregnancy and recently began staying with her father. B.M. also stated that she lost custody of her three-year-old daughter, who now resides in South Carolina with her adoptive family. E.T. stated that he had an on-and-off relationship with B.M. for a year and that he was the biological father of B.E.T. He stated that he was currently applying for disability and had been residing with a family friend for many years. E.T. also reported that he abused cocaine and was an alcoholic. Col-laterals further reported that B.M. had a long-standing history of substance abuse, was a prostitute, and had no stability to offer her minor child.

On August 7, 2008, the district attorney for the 21st Judicial District Court filed a petition seeking to adjudicate B.E.T. a child in need of care (CINC) pursuant to the Louisiana Children’s Code. At an answer hearing held on September 11, 2008, the district court found that E.T. had been ruled out as the ^father of B.E.T., based on DNA testing, and was dismissed from the case. Judgment was signed on September 18, 2008.

On March 5, 2009, the court adjudicated B.E.T. a child in need of care and further ordered that adoption was the permanent placement plan for B.E.T. Judgment was signed on March 31, 2009. On June 15, 2009, OCS filed a “Certification for Adoption and Petition for Termination of Parental Rights,” which included E.T. as a parent. Following a hearing on July 9, 2009, the juvenile court concluded that there were no grounds to proceed against E.T., and judgment was signed on August 13, 2009, dismissing E.T. from the petition “as DNA test proved he was not the father, he was not married to the mother and there had been no acknowledgement of paternity.” The court concluded that considering its findings, there was no right of action against E.T. OCS appealed.

DISCUSSION

In its appeal, OCS argues that because the juvenile court failed to address E.T. as the father listed on B.E.T.’s birth certificate, E.T. cannot be dismissed from the petition. OCS contends that without resolution of these parental rights, B.E.T. cannot be certified available for adoption.

The record shows that, following the filing of the termination proceeding, the curator representing E.T. made an appearance at the permanency review hearing held on June 25, 2009. The curator explained that E.T. was not the father based on DNA testing and asked the court whether E.T. should be |4dismissed from the termination proceeding, whether he should be included in the termination proceeding, or whether he should execute a voluntary surrender. The curator was advised that the matter would be addressed at the answer hearing scheduled for July 9, 2009.

At the July 9, 2009 hearing, the curator for E.T. argued that, based on the facts of OCS’s petition, E.T. had no standing as a father. He was never married to B.M., and DNA testing proved that he was not the father. The curator further argued that E.T’s name on the birth certificate, by itself, did not convey any presumption of fatherhood. Thus, E.T. had no parental rights to terminate, and there was no right of action against him. The district court agreed and dismissed E.T. from the petition.

Article 1193 of the Louisiana Children’s Code provides:

Unless rights have been terminated in accordance with Title X or XI, consent to the adoption of a child or relinquishment of parental rights shall be required of the following:
(1) The mother of the child.
(2) The father of the child, regardless of the child’s actual paternity, if any of the following apply:
(a) The child is a child born of the marriage in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(b) The father is presumed to be the father of the child in accordance with the Louisiana Civil Code or its legal equivalent in another state.
(3) The alleged father of the child who has established his parental rights in accordance with Chapter 10 of Title XI.
(4) The biological father of the child whose paternity has been determined by a judgment of filiation and who has established his parental rights in accordance with Chapter 10 of Title XI.
(5) The custodial agency which has placed the child for adoption, except that the court may grant the adoption without the consent of the agency if the adoption is in the best interest of the child and there is a finding that the agency has unreasonably withheld its consent.

| sThus, if E.T. falls within any of the criteria of LSA-Ch.C. art. 1193, and in this matter specifically subsection (2)(b), his consent to the adoption or relinquishment of parental rights is required.

Louisiana Civil Code article 196 provides:

A man may, by authentic act or by signing the birth certificate, acknowledge a child not filiated to another man. The acknowledgment creates a presumption that the man who. acknowledges the child is the father. The presumption can be invoked only on behalf of the child. Except as otherwise provided in custody, visitation, and child support cases, the acknowledgment does not create a presumption in favor of the man who acknowledges the child. (Emphasis added.)

Under this article, a man who acknowledges a child creates a presumption that he is the father, which operates in favor of the child only. Such an acknowledgement is created by an authentic act in which the father acknowledges his paternity, or by his signing the child’s birth certificate as father. LSA-C.C. art. 196, Revision Comments — 2005, Comment (a). There is no time period during which an action to challenge the presumption of this Article must be instituted. LSA-C.C. art. 196, Revision Comments — 2005, Comment (d).

In this matter, we have a copy of a birth certificate with E.T. listed as the father. Yet, the dilemma is that there is neither an acknowledgement of paternity nor a copy of the birth certificate with parents’ signatures in the record before us. Further, there is no explanation in the record as to how E.T’s name | Bcame to be placed on the birth certificate. In summary, the record is devoid of any evidence as to whether E.T. signed the birth certificate or whether he signed a voluntary acknowledgement of paternity. Thus, based on the record before us, we cannot determine whether the presumption in favor of the child under LSA-C.C. art. 196 is applicable and thus whether E.T. was properly dismissed from this action.

Given that E.T.’s name is listed on the birth certificate; the presumption set forth in LSA-C.C. art. 196; the gravity and finality of the termination of parental rights; and in order to reach a just result, we consider it necessary to reverse the judgment dismissing E.T., and we remand for the district court to determine whether E.T. signed the birth record or an ac-knowledgement of paternity. Only after this has been decided can it be determined whether E.T. should be dismissed from the proceedings.

CONCLUSION

For the foregoing reasons, the judgment of August 13, 2009, is reversed, and we remand to the district court to determine whether E.T. signed the birth certificate or an acknowledgement of paternity and ultimately whether he should be dismissed from these proceedings. Costs of this appeal are pretermitted until final resolution of this matter.

REVERSED AND REMANDED.

      . Additionally, the court ordered a paternity test on D.M., the husband of B.M. DNA testing also confirmed that D.M. was not the biological father of B.E.T., and D.M. executed a voluntary act of surrender of his parental rights on January 13, 2009.

      . In its "Certification for Adoption and Petition for Termination of Parental rights" OCS alleged the following:
      [E.T.j’s name is listed on the birth certificate of [B.E.T.], as the father. D.N.A. has ruled [E.T.] out as the biological father of [B.E.T.]. He has taken no action to acknowledge paternity, to enroll in the putative father registry, or to otherwise record his paternity of the child. His whereabouts are unknown.
      E.T. was served through a curator, who appeared at the answer hearing on July 9, 2009.

      . Identical judgments were signed on August 13, 2009, and on August 20, 2009.

      . E.T. was dismissed from the CINC proceedings at the September 11, 2008 hearing when it was determined that he was not the father. E.T. was present at the hearing, but could not be located thereafter.

      . The DNA results are not in the record, but are not disputed.

      . We note that there is no evidence in the record of any filiation proceeding.

      . Regarding the required contents of a birth certificate, LSA-R.S. 40:34 B(l)(h)(ii) provides:
      If a child is born outside of marriage, the full name of the father shall be included on the record of birth of the child only if the father and mother have signed a voluntary acknowledgment of paternity or a court of competent jurisdiction has issued an adjudication of paternity.
      It is unclear whether this statute would apply in this case as the mother was actually married to someone else at the time of the child's birth. However, the hospital may not have been aware of this fact. Thus, E.T's name may have been included on the record of birth because of a voluntary acknowledgement of paternity in accordance with LSA-R.S. 40:34 B(l)(h)(ii).
      We also note that LSA-R.S. 40:46.1 establishes a hospital-based voluntary acknowl-edgement program. The statute only requires the signatures of the two parents and the signature of a notary who authenticates their signatures. If the form for such an acknowl-edgement does not provide for the signature of two witnesses, it does not constitute an acknowledgement by authentic act, and thus does not have the effect accorded to such an acknowledgement under Article 196. LSA-C.C. art. 196, Revision Comment — 2005, Comment (f).

      . The district court recognized the significance of E.T.’s signature, but ultimately did not answer the question of whether E.T. signed the birth certificate.

      . Although not critical to our determination, we suggest that the record also be supple-merited with the results of E.T.'s DNA testing.


author: JUDE G. GRAVOIS, Judge.

text:
    Delilah FORBES v. METROPOLITAN DEVELOPMENTAL CENTER.
    No. 09-CA-901.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 9, 2010.
    Rehearing Denied May 28, 2010.

      J. Courtney Wilson, Attorney at Law, Metairie, LA, for PlaintiffiAppellant.
    James D. “Buddy” Caldwell, Attorney General, Thomas A. McGaw, Phyllis E. Glazer, Assistant Attorneys General, Louisiana Department of Justice, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2The plaintiff, Delilah Forbes, has appealed the judgment in favor of the defendant, Metropolitan Developmental Center, in this workers compensation suit. For the reasons that follow, we affirm the judgment of the trial court.

FACTS

On June 22, 2006, Ms. Forbes filed a Disputed Claim for Compensation against her employer Metropolitan and its insurer/administrator, the State of Louisiana Office of Risk Management. Ms. Forbes was employed as a resident specialist at Metropolitan, a home for severely disabled people. In her claim, she alleged that she injured her hand on September 2, 2004 while picking up a patient, that her wage benefits were terminated on March 17, 2006, and that vocational rehabilitation was not offered. She sought supplemental earnings benefits as well as penalties and attorney fees.

Metropolitan filed an answer asserting that Ms. Forbes was not entitled to supplemental earnings benefits, was offered medical rehabilitation services, and Rthat the termination of Ms. Forbes’ benefits was justified by her medical status as reported,

Following the denial of the defendant’s Motion for Summary Judgment, the matter proceeded to trial.

At trial, Ms. Forbes testified that she had worked at Metropolitan for seven years prior to the accident. Her duties included bathing, feeding and transportation of patients. The patients in the facility ranged in age from 25 to 60 years old and their weight ranged from 90 to 300 pounds. The patients that Ms. Forbes cared for were completely incapable of caring for themselves. Ms. Forbes explained that the ideal ratio was four patients to each caretaker but because they were often short staffed, she took care of many patients without assistance. Some of these patients had to be bathed two times per day. They all needed their diapers changed regularly. As such, her job required lots of lifting. Ms. Forbes testified that she did not always have assistance in lifting patients.

In her claim, Ms. Forbes alleged that she injured her right hand while placing a patient in a wheel chair after bathing the patient. She reported the injury to her supervisor and her hand was wrapped in an Ace bandage. She went to the doctor the next day because her arm was swollen. She was given a brace and medication. She returned to work on October 14, 2004 and was placed in a position working with aggressive patients. She only worked in this position for one day because she was fearful of the patients. She returned to work on October 29, 2004 and was placed on light duty in the kitchen. In this position, she chopped food and had to lift crates of milk and pans of food out of the freezer.

Ms. Forbes continued working on light duty until March 2, 2005. On March 3, 2005, she underwent surgery on her right hand to repair a ruptured ligament and carpal tunnel syndrome. The surgery was performed by Dr. Kearny Robert. Ms. UForbes testified that although Dr. Robert released her to return to work, she did not attempt to do so because she knew that she would not be able to perform her duties due to the pain and loss of motion in her fingers, hand and arm.

Ms. Forbes testified that she was unable to bathe herself because when she gets into a bathtub, her right side “goes numb”. Also, her hand shakes and she is unable to button buttons. Removing clothes from the washing machine causes pain. She is unable to wash dishes because she “can’t handle pots”.

After surgery, Ms. Forbes continued receiving treatment from Dr. Robert. She later sought treatment from other physicians because she felt Dr. Robert did not help her. Dr. Robert told her that her arm would never be the same and that therapy would not help her. She visited Dr. Kenneth Adatto on four occasions and later went to the LSU clinic.

On cross-examination, Ms. Forbes asserted that Dr. Robert’s report stating that she was very comfortable using her wrist and had full range of motion was not true. Ms. Forbes further claimed that Dr. Robert lied when he stated she could move her thumb when she was distracted. She claims, rather, that she never could raise her thumb. Ms. Forbes denied that Dr. Robert told her she was self-limiting on the functional capacity evaluation (FCE). She stated that she did the best she could on this evaluation.

Kim Witherspoon, an expert in the field of occupational therapy and a certified hand therapist, testified that she performed the FCE on Ms. Forbes. She explained that the FCE is a test performed to determine a person’s level of functioning as a whole, not just the injured extremity. It includes but is not limited to testing as to: 1) strength, i.e., how much the patient can lift, push, pull, carry; 2) positional tolerance, i.e., how long the patient can sit or stand; and 3) mobility, i.e., climbing and squatting. The test lasts three to four hours. The patient is instructed | Rto do his best and to reach the maximum level before stopping the particular task. Ms. Forbes attempted every task requested but according to Ms. With-erspoon, she “self-limited” — that is, she stopped several tasks before Ms. Wither-spoon was able to observe objective signs that she had reached her safe maximum level. Ms. Witherspoon felt that Ms. Forbes had self-limited on eight of the seventeen tasks tested or 47%. This affected the validity of the results of the FCE. Specifically, according to Ms. With-erspoon, Ms. Forbes was better at lifting at the end of the test rather than at the beginning, she did not use her left arm which resulted in exaggerated difficulty with lifting, she walked slowly, and she stopped carrying with her left hand because she said it caused pain in her right hand. Further, Ms. Forbes scored higher in ladder climbing than in stair climbing. This is inconsistent with her complaints because ladder climbing requires more use of the arms than stair climbing. The written report for the FCE was admitted into evidence and corroborates the testimony of Ms. Witherspoon.

Ms. Witherspoon opined that based on the FCE, there is no reason why Ms. Forbes cannot bathe herself or button a button. She noted that Ms. Forbes was able to make a fist with her right hand, which requires a certain range of motion. Ms. Witherspoon concluded that Ms. Forbes should be able to work a full eight-hour day in a sedentary capacity, which is the lowest level of work.

Ms. Witherspoon reviewed a report by Dr. Eric George who stated that Ms. Forbes could perform light to medium duty work. Ms. Witherspoon admitted that based on Dr. George’s report, Ms. Forbes could not perform her prior job.

Regina Patterson testified that she is employed by the Office of Risk Management, had reviewed Ms. Forbes’ file, and that Ms. Forbes’ benefits were discontinued based on the reports by Dr. Robert. Ms. Patterson acknowledged that Dr. George examined Ms. Forbes at their request and concluded that Ms. Forbes | (¡could only perform light to medium duty work. Ms. Patterson did not think that Dr. George’s report warranted reinstatement of Ms. Forbes’ benefits.

Ms. Forbes submitted the deposition of Dr. Kenneth Adatto, an orthopedic surgeon, into evidence. Dr. Adatto first examined Ms. Forbes on August 21, 2007. She complained of pain, locking, swelling, aching, and limited range of motion in her right hand and wrist. She stated that her thumb does not move well. Dr. Adatto testified that he told Ms. Forbes that she had to protect her right hand and wrist from heavy lifting and repetitive motion. This injury would make it difficult for her to turn and lift patients. He examined Ms. Forbes again on May 26, 2008 where there was no change in her symptoms or examination. He testified that Ms. Forbes was permanently disabled. In his opinion, she did not have the ability to fully extend her thumb. Nerve testing done on June 5, 2008 indicated there was residual carpal tunnel compression. Dr. Adatto gave Ms. Forbes the names of hand specialists but he was not sure if additional surgery would be beneficial. There was no change in Ms. Forbes’ condition when he examined her on August 19, 2008. He referred her to the LSU or Tulane hand clinic because her insurance had run out. Dr. Adatto opined that Ms. Forbes was restricted to light duty work and she should not go into heavy manual labor. Dr. Adatto reviewed Dr. George’s report. While he agreed with Dr. George that Ms. Forbes has a disability, he disagreed that there was symptom magnification. Dr. Adatto never suspected that Ms. Forbes was exaggerating her symptoms.

Dr. Eric George’s report dated July 28, 2008 was admitted into evidence by both parties. Dr. George examined Ms. Forbes' at the request of the defendant. Dr. George reviewed Ms. Forbes’ medical history and records. He noted her self-limiting behavior on the FCE and found “marked symptom magnification” in his ^examination. He concluded that she could most likely work in the light to medium strength category but suggested she be fully released in the light strength category.

An initial vocational evaluation was also admitted into evidence by both parties. This report indicates that a meeting was held at Ms. Forbes’ residence on July 5, 2007. The report stated that in her job as a resident training specialist, Ms. Forbes fed, bathed and transported totally disabled patients. She had previously worked as a charge account clerk and a security guard. The report stated that she was released to return to work at the sedentary level or possibly higher. Based on her work skills and background, she could consider working as an unarmed security guard, dispatcher, hostess, or scheduler. The future plan of action of the report states that a second meeting was to be scheduled, job skills training was to be administered, job openings were to be communicated to Ms. Forbes, and job descriptions were to be submitted to Ms.' Forbes’ doctor. No further records are contained in the record or exhibits to indicate whether or not this plan of action was completed.

Four reports from Dr. Robert were admitted into evidence by the defendant. Dr. Robert’s first report dated December 20, 2005 states that an examination on that date reveals Ms. Forbes to be very comfortable, she has full range of motion in her digits, and is using her wrist. Ms. Forbes reached maximum medical improvement and “can return to her regular duties at work.”

Dr. Robert’s second report dated May 1, 2006 states that Ms. Forbes reports that her right hand “gives out on her” and has decreased strength. Dr. Robert noted that Ms. Forbes held her hand in an awkward position but when she relaxed the hand she was able to move her digits and cross her index and middle fingers “fairly normally.” He recommended an FCE to determine any permanent impairment.

| sDr. Robert’s third report dated May 30, 2006 states that the level of performance on the FCE was influenced by Ms. Forbes’ self-limiting behavior, noting that she had multiple complaints some of which were not related to her wrist. Dr. Robert states that her maximum capacity was unable to be determined during the FCE and because of her self-limiting behavior he is unable to determine the restrictions for her work.

Dr. Robert’s fourth and final report dated September 21, 2006 states that Ms. Forbes complained of pain in her arm, numbness in her small finger and difficulty using her hand. She also complained that she had difficulty clapping or patting someone on the back. The examination states that the range of motion does not appear to be changed and there is no discrete tenderness, nor is there any atrophy. There were no restrictions in her digital motion. Dr. Robert noted that she held her thumb in a “somewhat radial abduction position but seems to be able to correct this when she is distracted.” X-rays showed no change from prior x-rays. The report concludes that Ms. Forbes has reached maximum medical improvement. Although she insisted that she was not able to do very much with her hand, her physical examination did not correlate with this because she has “symmetrical wear from using her hand as she does on the opposite side.” The report further states that her complaints of not being able to pat someone on the back are not consistent “with her findings.” She was informed that nothing else could be done for her wrist and a psychological evaluation was suggested to explore underlying factors that may be impeding her return to work.

At the conclusion of trial, the matter was taken under advisement. Judgment was later rendered in favor of defendant, dismissing plaintiffs claim. This timely appeal followed.

I .¡ASSIGNMENT OF ERROR

On appeal, plaintiff, in her only assignment of error, argues that despite the trial court’s finding that plaintiff was not credible, in view of the fact that there was consistent medical evidence that the plaintiff could not perform one component of her job, namely, lifting 300 pound patients who could not assist, it was error for the trial court to uphold the termination of benefits, or alternatively, not to have benefits resumed upon the receipt of either Dr. Adatto’s report or Dr. George’s report. The plaintiff reasons that because her payments were stopped on the basis of medical records, and not her statements, there is no credibility choice to be made. Rather because all the experts agree that plaintiff cannot lift patients who cannot assist by using their legs, it was error for the trial court to uphold termination of benefits. Plaintiff contends that this error of law requires a de novo review.

Defendant responds that a review of the testamentary and documentary evidence support the trial court’s findings and the judgment is neither manifestly erroneous nor clearly wrong.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, (La.7/1/97), 696 So.2d 551, 556. Under this standard, in order for an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of a review of the entire record, an appellate court may not 11 preverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Id. Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact may not be disturbed by the appellate court although the appellate court may feel that its own evaluations and inferences are as reasonable. Id. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

Further, the responsibility of determining which expert is most credible is reserved to the trier of fact. Mistich v. Volkswagen of Germany, Inc., 95-0939 (La.1/29/96), 666 So.2d 1073, 1077. If a trial court gives greater weight to one expert’s testimony, this finding cannot be reversed absent manifest error. Gautreau v. Gautreau, 96-1548 (La.App. 3 Cir. 6/18/97), 697 So.2d 1339, writ denied, 97-1939 (La.11/7/97), 703 So.2d 1272. The manifest error/clearly wrong standard of appellate review applies in workers’ compensation cases even when the trial court’s decision is based solely upon written reports, records or depositions. Bruno, 593 So.2d at 361.

In rendering judgment in favor of the defendant, the trial court wrote:

The Court listened attentively to the testimony of the witnesses and observed their demeanor. It has carefully reviewed the entire record in this matter: the various pleadings, the testimony of the witnesses, both live and by deposition, the trial exhibits and the stipulations of the parties and the arguments of counsel.
|nFrom all of the above the Court has concluded that Claimant was not a credible witness, that her physical complaints fly in the face of the medical evidence and are grossly exaggerated and that her disputed workers’ compensation claim has no merit and should be dismissed, ...

A review of the record indicates there is a reasonable factual basis in the record for these findings. The record reflects that Ms. Forbes showed the trial judge how she was able to move her hand, fingers, and thumb. She testified that has had pain in her wrist, up and down her arm to her shoulder and that she could not bathe herself, feed herself, or button buttons. Both Ms. Witherspoon and Dr. Robert disputed these complaints. Ms. Witherspoon’s testimony and report document the inconsistent behavior exhibited by Ms. Forbes during the FCE. Ms. Forbes was able to do more lifting at the end of the exam than at the beginning which is opposite of the expected outcome, and she had more trouble climbing stairs, which does not require as much arm use as climbing a ladder, which she had little difficulty doing. There was no reference to the “jerky” arm movements described by Ms. Forbes to the Court and to Dr. Robert. Dr. Robert’s report of December 20, 2005 states that Ms. Forbes had full range of motion in her digits and was able to use her wrist. On that date he found she could return to her regular duties at work. When Ms. Forbes returned to Dr. Robert in May 2006, after her benefits had been terminated, with complaints of problems with her hand, he ordered the FCE. His frustration at Ms. Robert’s self-limiting behavior on the FCE is evident in his report dated May 30, 2006 wherein he notes that Ms. Forbes’ grip strength did not change despite different grip levels on the dynamometer. On his report dated September 21, 2006, Dr. Robert states that Ms. Forbes’ physical complaints do not correlate with the findings on his examination, specifically stating that she has “symmetrical wear from using her hand as she does on the opposite side.”

112The trial judge was able to observe the plaintiffs testimony and her movements. In assessing plaintiffs credibility, the trial court, no doubt, noted internal inconsistencies within the plaintiffs testimony and inconsistencies between the plaintiffs testimony and that of Ms. With-erspoon and Dr. Robert’s reports. We cannot say the trial judge, which had the opportunity to observe and hear the plaintiffs testimony, as well as observe the movements of her hand and arm, was clearly wrong in discrediting the testimony of the plaintiff.

For the above stated reasons, we find no merit to plaintiffs argument that credibility is not at issue because the medical evidence is in agreement that plaintiff cannot lift patients.

Furthermore, a review of the evidence, ignoring the issue of credibility, indicates that plaintiff did not carry her burden of proof. Plaintiffs Disputed Claim for Compensation seeks supplemental earnings benefits (SEB). An injured worker is entitled to SEB when the employee’s injury results in her inability to earn wages equal to ninety percent or more of the wages she was earning at the time of the injury. LSA-R.S. 23:1221(3). The injured employee bears the burden of proving by a preponderance of the evidence that the injury resulted in her inability to earn that amount in any employment. Cooper v. St. Tammany Parish School Bd., 2002-2433 (La.App. 1 Cir. 11/7/03) 862 So.2d 1001, 1006. An injured worker’s testimony that she is no longer able to return to her pre-injury employment, without more, is insufficient to prove entitlement to SEB. Id.

While Dr. Adatto and Dr. George found plaintiff could not return to her prior employment, there was no evidence in the record that plaintiff could not earn at least ninety per cent of her pre-injury wages. Dr. Robert initially determined that plaintiff could return to her prior job without limitations. In his later report, however, he states that he cannot determine any restrictions for work due to | ^plaintiffs self-limiting behavior. Additionally, even with the self-limiting behavior noted on the FCE, Ms. Witherspoon concluded that plaintiff could work in the lowest level of exertion, that in a sedentary position. There was no testimony, however, that plaintiff had even attempted to return to work. In fact, plaintiffs testimony was unequivocal that she had not attempted to work in any capacity following her March 2005 surgery. Thus, plaintiff failed to show she was entitled to SEB because she failed to carry her burden of proving that she was unable to earn ninety per cent of her pre-injury wages.

CONCLUSION

For the foregoing reasons, we find no error in the trial court’s dismissal of plaintiffs disputed workers’ compensation claim.

AFFIRMED.


author: PAUL A. BONIN, Judge. McKAY, J.,

text:
    Ann Marie FISHER, et al. v. MAJESTIC TRUCKING, INC., et al.
    No. 2009-CA-1398.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 17, 2010.

      David R. Rabalais, Rabalais Williams, L.L.C., Lafayette, LA, for Defendant/Ap-pellee, American Empire Surplus Lines Insurance Company.
    (Court composed of Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

hAnn Marie Fisher Tessier, the widow of George Tessier III, sued American Empire Surplus Lines Insurance Company, among others, seeking damages for the wrongful death of her husband. American Empire filed a motion for summary judgment which was granted, resulting in its dismissal with prejudice from these proceedings. Because we find merit in Ms. Tessier’s assignment of error that proof of long-arm service of the motion for summary judgment upon her was deficient, we vacate and remand to the district court.

I

At the time that American Empire filed its motion, Ms. Tessier was not represented by counsel, she was residing outside of this state, and apparently she had not appointed an in-state agent for service of process. See La. C.C.P. arts. 5251(2) and (11) and 1235 A. When the motion for summary judgment was filed, the court set a rule to show cause why the motion should not be granted. See La. C.C.P. arts. 963, 2592(3) and 2593. The court assigned the hearing on the motion |2for June 19, 2009 at 9:00 A.M. See La. C.C.P. art. 2594 (“... A copy of the contradictory motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.”)

La. C.C.P. art. 966 B provides:

The motion for summary judgment and supporting affidavits shall be served at least fifteen days before the time specified for the hearing... .The adverse party may serve opposing affidavits and any memorandum in support thereof shall be served pursuant to Article 1313 at least eight days prior to the date of the hearing unless the Rules for Louisiana District Courts provide to the contrary....

We have consistently held that a motion for summary judgment must be served by the sheriff. See La. C.C.P. art. 1314 and Ainsworth v. Ainsworth, 03-1626, pp. 8-9 (La.App. 4 Cir. 10/22/03), 860 So.2d 104, 112.

A sheriff generally “may exercise his civil functions only in the parish for which he was elected.” La. C.C.P. art. 322; see also La. C.C.P. art. 1291. Because the service upon a nonresident cannot be effected by any sheriff outside the state, service must be effected by the long-arm statute, which was the service requested |sby American Empire at the time of the filing of its motion. The procedure for service and for proof of service is provided by La. R.S. 13:3205:

No default judgment can be rendered against the defendant and no hearing may be held on a contradictory motion, rule to show cause, or other summary proceeding, except for actions pursuant to R.S. 46:2131 et seq., until thirty days after the filing in the record of the affidavit of the individual who either:
(1) Mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mail, to which shall be attached the return receipt of the defendant; or
(2) Utilized the services of a commercial courier to make delivery of the process to the defendant, showing the name of the commercial courier, the date, and address at which the process was delivered to the defendant, to which shall be attached the commercial courier’s confirmation of delivery; or
(3) Actually delivered the process to the defendant, showing the date, place, and manner of delivery.
(all emphasis added.)

II

“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal La. C.C.P. art. 2164 (emphasis added). The record contains only an incomplete form styled “Affidavit” which is unsigned and, of course, not notarized; it is prepared for the signature of an employee of American Empire’s counsel; it purports to set out the dates, which are left blank, on which Ms. Tessier was served by certified mail, return receipt requested. We are not unaware that American Empire has attached a completed and executed affidavit to its appellate brief and has made certain representations that the trial | Judge considered the attached affidavit before rendering judgment. We, however, have consistently held that

The appellate briefs and motions of the parties and attachments thereto are not a part of the record on appeal, and this court has no authority to consider on appeal facts referred to therein, or in exhibits attached thereto, if those facts are not in the record on appeal.

Board of Directors of Industrial Development Board of City of New Orleans v. All Taxpayers, Property Owners, Citizens of City of New Orleans, 03-0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744 (emphasis added). See also Littlejohn v. Quiram, 01-0075, p. 2 (La.App. 4 Cir. 10/24/01), 800 So.2d 73, and Miller v. Crescent City Health Care Center, 08-1347, pp. 7-11 (La.App. 4 Cir. 5/28/09), 24 So.3d 891, 898-901 (Tobias, J., concurring in part and dissenting in part). The record is, however, devoid of any evidence that the affidavit by counsel’s employee was filed in the record, much less that it was filed at least thirty days before the June 19, 2009, hearing. And American Empire’s attachments to and assertions in its brief, even if they could be considered, would not support such a conclusion. The provisions of the long-arm statute mandate that no judgment could be rendered against Ms. Tessier “until thirty days after the filing in the record of the affidavit” of the employee of American Empire’s counsel. See, e.g., White v. White, 398 So.2d 1257 (La.App. 4th Cir.1981).

The second circuit was confronted with a very similar situation subsequent to the amendments to La. C.C.P. art. 1313, which were effective January 1, 2000. In Moody v. Stevenson, 43,144 (La.App. 2 Cir. 3/26/08), 980 So.2d 196, 199, the defendant filed a motion for summary judgment against the plaintiff, an unrepresented nonresident; the defendant did not file its affidavit of service of process until the morning of the hearing. The Moody court decided, and we agree, that strict compliance with the procedural requirements of the long-arm statute is required such that a summary judgment obtained without strict compliance is an absolute nullity. The Moody court vacated the summary judgment and remanded the case to the district court.

American Empire argues that this is “hypertechnical.” It essentially argues that Ms. Tessier had actual notice of the hearing, which ought to be sufficient. We disagree. As we stated in Chaney v. Coastal Cargo, Inc., 98-1902, p. 4 (La.App. 4 Cir. 1/20/99), 730 So.2d 971, 973,

It is a basic principle of our legal system that a final judgment cannot be rendered against a party who has not been provided with proper notice. We disagree with defendants’ claim that actual notice of the hearing by plaintiff relieves defendants of the responsibility of providing proper notice, (citation omitted).

Ms. Tessier did not make a general appearance at the hearing on the motion for summary judgment and she did not argue the motion on its merits. See Strickland v. Board of Sup’rs of Louisiana State University and Agr. And Mechanical College, 432 So.2d 964, 967 (La.App. 4th Cir.1983). Nonetheless the district judge proceeded to the hearing on the motion and rendered judgment that same day, granting the summary judgment and dismissing with prejudice Ms. Tessier’s cause of action against American Empire. Accordingly, as did the | (Moody court, we vacate the summary judgment and remand the matter to the district court.

Ill

Ms. Tessier urges eight other assignments of error. Because we conclude that her assignment of error correctly challenged the failure of counsel for American Empire to file timely into the record the affidavit of service, we need not consider her remaining assignments.

DECREE

For the foregoing reasons, we vacate the judgment rendered on June 19, 2009, and remand this matter to the district court for further proceedings.

VACATED AND REMANDED.

McKAY, J.,

concurs.

|TI concur with the majority and would also reverse the trial court’s granting of summary judgment. There are issues of material fact which make summary judgment inappropriate in this instance.

      . Although Ms. Tessier was a nonresident, the court already had personal jurisdiction over her because she had commenced the lawsuit. See La. C.C.P. art. 6.

      . For the purposes of our discussion considering the service of a motion for summary judgment through a rule to show cause, the “defendant" upon whom service must be made may be the plaintiff, who is then customarily referred to as the "defendant-in-rule.” See, e.g., Spezio v. Spezio, 01-1789, p. 7 (La.App. 4 Cir. 9/10/003), 857 So.2d 5, 9, and Oster v. Oster, 563 So.2d 490, 491 (La.App. 4th Cir.1990) as well as Bentley v. Fanguy, 08-1052 (La.App. 3 Cir. 3/4/09), 2009 WL 529904 (unpub.) and Zenon v. Liberty Mutual Fire and Casualty Insurance Company, 03-0971, p. 4 (La.App. 1 Cir. 4/2/04), 871 So.2d 642, 644.

      . There is a difference of opinion about whether Ainsworth countenances service of a motion for summary judgment by certified or registered mail under La. C.C.P. art. 1313 C. See Hill v. Lopez, 05-0182, p. 6 n. 5 (La.App. 1 Cir. 2/22/06), 929 So.2d 80, 84 n. 5 ("We note, however, that the Fourth Circuit has concluded that a motion for summary judgment still requires service by the sheriff under the present language of La. C.C.P. art. 1313.”). But see Frank L. Maraist, 1 Louisiana Civil Law Treatise: Civil Procedure, § 8:6 n. 2 (2nd ed.2008) citing Ainsworth for the proposition that "a motion for a summary judgment is the kind of contradictory motion contemplated by CCP Article 1313(C); thus service must be effected either by registered or certified mail or by the sheriff.” We need not resolve this issue because American Empire neither filed an appropriate certificate of service in the trial court under La. C.C.P. art. 1313 B nor asserted in its argument on appeal that service by certified or registered mail was sufficient. See La. C.C.P. art. 2133 B.

      . Some of the amendments to Article 1313 were recommended by the Louisiana State Law Institute. Subsection C was not one of the recommendations, but House Bill 780 was amended in committee and subsection C was added. There was no specific discussion about whether the lawmakers intended to change the requirements for service of a motion for summary judgment. See Minutes of Meeting of April 20, 1999, House Committee on Civil Law and Procedure.

      . Ms. Tessier seems to include among her arguments that an earlier summary judgment, which was rendered on September 30, 2008, and which dismissed with prejudice her claims against Rudolph Stout, Debrock, Inc., and American Home Assurance Company, is the subject of this appeal. The record contains no motion for appeal from that judgment, which is now final. See La. C.C.P. art. 2087. We express no opinion on whether that judgment is subject to the action of nullity as Ms. Tessier argues in her brief. See La. C.C.P. art. 2002.