author: GUIDRY, J. PETTIGREW, J.,

text:
    Rafael A. GUZMAN v. Mariana De La Cruz SARTIN.
    No. 2009 CU 1677.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 23, 2009.

      Angela Wilt Cox, Slidell, LA, for Plaintiff/Appellee Rafael A. Guzman.
    Jerri G. Smitko, Matthew D. Ory, Heather C. McAllister, Houma, LA, for Defendant/Appellant Mariana De La Cruz Sartin.
    Before CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|2In this action seeking to set specific custody and incidental matters, defendant, Mariana De La Cruz Sartin, appeals from a final judgment in favor of plaintiff, Rafael A. Guzman. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Mr. Guzman and Ms. Sartin were married on June 21, 1995, in the Municipality of Barata of the State of Republic of Venezuela. Two children were born of their union, Ivonne Guzman (d/o/b November 3, 1994) and Gabriel Guzman (d/o/b May 15, 1997). On May 23, 2001, the parties were divorced in Venezuela, and Ms. Sartin was awarded custody of the children, while Mr. Guzman enjoyed an open visitation schedule to conform to his military duties.

In December of 2007, Ms. Sartin and the children moved from Venezuela to Slidell, Louisiana. According to Mr. Guzman, sometime thereafter he began encountering problems when he attempted to visit his children. He subsequently filed a verified petition to set specific custody and incidental matters, seeking to have the court in St. Tammany Parish modify the original Venezuelan judgment. On April 29, 2009, Mr. Guzman filed a motion to supplement and amend the original petition, to request the enforcement of visitation, and to seek attorney’s fees and incidental relief.

After Mr. Guzman filed his original petition, the trial court ordered that he and Ms. Sartin appear in person, with then-respective attorneys, before a hearing officer at the parish courthouse. The conference was held on May 4, 2009, and the parties addressed the issues raised in Mr. Guzman’s petition. Following the conference, the hearing officer issued a conference report recommending that the parties share joint custody of the minor children, designating Ms. Sartin as the domiciliary parent, setting a specific visitation schedule, and issuing co-parenting |3guidelines. Both parties filed objections in response to the recommendations made in the hearing officer’s report.

On June 18, 2009, the parties participated in another conference before the hearing officer to address the issues raised in Mr. Guzman’s motion to supplement and amend his original petition. After the conference, the hearing officer issued a report finding that Mr. Guzman’s request for additional visitation was moot and denying his request for reimbursement for costs, attorney’s fees, and travel expenses as it related to the April 2009 visitation. Thereafter, Ms. Sartin filed an objection to the hearing officer’s report asserting that the court lacked venue, that the action was premature, and that Mr. Guzman has no cause of action or no right of action. In addition to the objection, Ms. Sartin filed exceptions raising the objections of improper venue, prematurity, no cause of action or no right of action.

Following a hearing on the matters presented in the petitions and exceptions, the trial court rendered judgment on July 20, 2009, in favor of Mr. Guzman and denied Ms. Sartin’s exceptions. Ms. Sartin now appeals from this judgment.

DISCUSSION

In her assignments of error, Ms. Sartin contends that the trial court erred in overruling her exceptions raising the objections of improper venue, prematurity, no cause of action, and no right of action. She also contends that the trial court erred in enforcing and modifying the foreign judgment.

Jurisdiction

We will first discuss Ms. Sartin’s contention that the trial court erred in enforcing and modifying the foreign judgment because this contention relates to whether the trial court had subject matter jurisdiction over the action. Specifically, |4she avers that Mr. Guzman failed to make the foreign judgment executory in the State of Louisiana in accordance with Louisiana Code of Civil Procedure article 2541 or Louisiana Revised Statute 13:4242. However, out-of-state child custody determinations are specifically governed by the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter referred to as the UCCJEA) found in Louisiana Revised Statute 13:1801— 1842, which sets forth specific rules regarding the recognition, modification, and enforcement of child custody determinations. This statute applies to international cases as well as domestic cases. The purpose of the UCCJEA is to “provide clearer standards for which States can exercise original jurisdiction over a child custody determination.”

The Venezuelan judgment determined the custody of the two children, awarding Ms. Sartin custody while Mr. Guzman was to enjoy an open visitation schedule to conform to his military duties. Mr. Guzman now seeks to modify that custody determination to provide for more structured visitation. The UCCJEA does not require that an out of state custody determination be made executory to be enforceable. See La. R.S. 13:1825. Thus, the UCCJEA, as the more specific law on this issue, applies to the instant case.

|sMs. Sartin further avers that Mr. Guzman failed to register the Venezuelan custody determination in accordance with the UCCJEA. The UCCJEA permits registration of an out of state custody determination. Louisiana Revised Statute 13:1827 provides in pertinent part that “[a] child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement ...” This statute also applies to child custody determinations made in foreign countries.

However, a clear reading of the UC-CJEA demonstrates that the legislature did not intend to mandate that parties register their out-of-state child custody determination for the determination to be recognized, enforced, and modified under the laws of this state. The use of the word may in the statute indicates that registration of the judgment is permissive, not mandatory. In accordance with the UC-CJEA, a court of this state has a duty to recognize and enforce an out-of-state child custody determination if the other state exercised jurisdiction in compliance with the UCCJEA or the determination was made under factual circumstances complying with the jurisdictional standards of this Act and the determination has not been modified in accordance with the Act. La. R.S. 13:1825(A).

Here, the judgment rendered in the Bo-livarian Republic of Venezuela complied with the jurisdictional standards of the UCCJEA in that Venezuela was the parties’ and the children’s domicile when the judgment was rendered. Therefore, a court of this state has a duty to recognize and enforce the Venezuelan | (¡custody determination. It also has the power to modify this properly recognizable and enforceable judgment if the requisites for modification under the statute are complied with.

In the instant case, Mr. Guzman is in fact seeking to modify the Venezuelan judgment. Louisiana Revised Statute 13:1815 provides that a court of this state has jurisdiction to modify a child custody determination under the following circumstances:

Except as otherwise provided in R.S. 13:1816, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under R.S. 13:1813(A)(1) or (2) and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under R.S. 13:1814 or that a court of this state would be a more convenient forum under R.S. 13:1819; or
(2) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

Louisiana Revised Statute 13:1813(A)(1) further provides:

Except as otherwise provided in R.S. 13:1816, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state, or had been the child’s home state within twelve months before commencement of the proceeding and the child is absent from the state because he was required to leave or was evacuated due to an emergency or disaster declared under the provisions of R.S. 29:721 et seq., or declared by federal authority, and for an unforeseen reason resulting from the effects of such emergency or disaster was unable to return to this state for an extended period of time.

Louisiana Revised Statute 13:1802(7)(a) defines “Home State” as,

The state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of [ 7temporary absence of any of the mentioned persons is part of the period.

In the instant case, we find that Louisiana has jurisdiction to modify the Venezuelan child custody determination. Louisiana is the “Home State” of the children because the children have been residing in Louisiana with their mother since December of 2007, approximately a year and a half before the child custody proceedings, and neither the children nor their parents presently reside in Venezuela. Accordingly, we find that the trial judge did not err when she determined that Louisiana has jurisdiction over the child custody proceedings. Having resolved the issue of jurisdiction in finding that registration was not required, for that same reason, we find no merit in Ms. Sartin’s arguments regarding the exceptions raising the objections of prematurity, and no cause of action or no right of action.

Improper Venue

Ms. Sartin asserts that venue is not proper in St. Tammany Parish because she and the children now reside in Terrebonne Parish. Venue is the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La. C.C.P. art. 41. An action against an individual who has changed his domicile from one parish to another may be brought in either parish for a period of one year from the date of the change, unless he has filed a declaration of intention to change his domicile. La. C.C.P. art. 71.

In the instant case, Mr. Guzman filed his action on April 1, 2009, in St. Tammany Parish where Ms. Sartin and the children resided. After the petition was filed but before the hearing on June 28, 2009, Ms. Sartin and the children relocated to Terre-bonne parish. Therefore, venue was proper in either St. Tammany or |8Terrebonne Parish. Accordingly, we find no error in the trial court’s judgment denying the exception raising the objection of improper venue.

CONCLUSION

For the aforementioned reasons, we affirm the judgment of the trial court. All costs of these proceedings are assessed against the defendant, Mariana De La Cruz Sartin.

AFFIRMED.

CARTER, C.J., concurs.

PETTIGREW, J., dissents, and assigns reasons.

PETTIGREW, J.,

dissents, and assigns reasons.

LEven assuming the majority is correct that the Venezuelan custody determination does not have to be made executory (which legal issue I do not necessarily concede) to enforce said judgment in Louisiana under the U.C.C.J.E.A., I still am of the opinion that the trial court’s judgment should be reversed.

The Venezuelan judgment, a considered decree, gave custody to Mrs. Sartin subject to visitation rights of Mr. Guzman. Mr. Guzman requested that the trial court modify this custody grant to Mrs. Sartin. In Louisiana, once a considered decree of permanent custody has been rendered by a court, the proponent of the change bears the heavy burden of proving that a change of circumstances has occurred, such that the continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree, or that harm likely caused by a change of environment is substantially outweighed by its advantages to the child. Perry v. Monistere, 2008-1629, pp. 4-5 (La.App. 1 Cir. 12/23/08), 4 So.3d 850, 853. There is no evidence in the record that the trial court applied this burden to Mr. Guzman.

The record further reflects that Mrs. Sartin is a citizen of the United States, who is remarried. She was living in St. Tammany Parish when the proceeding began and now lives in Terrebonne Parish. Mr. Guzman is not a citizen of the United States, has also remarried, and currently resides in Texas. I am of the humble opinion that it was error for the trial court to allow Mr. Guzman to take these children outside of the United States territory to Venezuela. I am of the opinion this put the children at risk. Prohibiting him from taking the children outside the United States does not interfere with him freely exercising his visitation.

For these reasons I would reverse the trial court.

      . Additionally, at the hearing on the matters presented to the court, Ms. Sartin raised the objection of lack of subject matter jurisdiction because Mr. Guzman failed to register or make the Venezuelan judgment executory in St. Tammany parish pursuant to La. R.S. 13:4241 or La. C.C.P. art. 2541.

      . Louisiana Code of Civil Procedure article 2541(A) provides, in pertinent part, as follows:
      A parly seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the United States or a territory thereof, or of any other state, or of any foreign country may either seek enforcement pursuant to R.S. 13:4241, et seq., or bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.

      . Louisiana Revised Statute 13:4242 provides:
      A copy of any foreign judgment authenticated in accordance with an act of congress or the statutes of this state may be annexed to and filed with an ex parte petition complying with Code of Civil Procedure article 891 and praying that the judgment be made executory in a court of this state. The foreign judgment shall be treated in the same manner as a judgment of a court of this state. It shall have the same effect and be subject to the same procedures, and defenses, for reopening, vacating, or staying as a judgment of a court of this state and may be enforced in the same manner.

      . La. R.S. 13:1805.

      . U.C.C.J.E.A. Prefatory Note (1997).

      . "Registration can be used to predetermine the enforceability of a custody determination ... A custody determination can be registered without any accompanying request for enforcement.” U.C.C.J.E.A. § 305 cmt. (1997).

      . The use of the word may in La. R.S. 13:1827 provides a party with the option of registering a judgment. See Black v. St. Tammany Parish Hospital, 08-2670, (La.11/6/09), 25 So.3d 711, Louisiana Civil Code article 9 provides “when a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.”

      . See La. R.S. 13:1805(A).

      . Mr. Guzman is currently a resident of the state of Texas.


source: Caselaw Access Project

author: PARRO, J. McDONALD, J.,

license: Public Domain

text:
    Kalford K. MIAZZA v. CITY OF MANDEVILLE, DEPARTMENT OF POLICE, et al.
    No. 2009 CA 0030.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 6, 2010.

      Raymond C. Burkart, III, Amanda A. Trosclair, Burkart & Associates, L.L.C., Covington, LA, for Plaintiff-Appellant, Kalford K. Miazza.
    M. Nan Alessandra, MaryJo L. Roberts, Phelps Dunbar LLP, New Orleans, LA, for Defendant-Appellee City of Mande-ville, Department of Police.
    Before PARRO, KUHN, and McDonald, jj.
   PARRO, J.

12Sergeant Kalford K. Miazza appeals a district court judgment affirming the dismissal of his appeal to the City of Mande-ville’s Municipal Police Employees Civil Service Board (the Board) concerning a promotion decision. For the following reasons, we vacate the district court judgment and dismiss this appeal for lack of subject matter jurisdiction.

DISCUSSION

Sgt. Miazza, a permanent, classified civil service employee, was employed by the City of Mandeville (the City), Parish of St. Tammany, as a police sergeant with the Mandeville Police Department. In May 2007, the appointing authority published notice of an upcoming opening for the position of Captain, with the test scheduled for October. On November 5, 2007, the personnel director published the test scores of the four officers who had taken the test; three of them, including Sgt. Miazza, were referred for the promotion. However, on November 7, 2007, the police chief appointed another officer to the position. Sgt. Miazza appealed the promotion decision to the Board, and the City moved for summary dismissal of the appeal for lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. After a hearing, the Board granted the City’s motion and dismissed Sgt. Miazza’s appeal.

Sgt. Miazza filed a petition for judicial review with the Twenty-Second Judicial District Court (22nd JDC). After considering the record of the proceedings before the Board, along with the briefs and arguments of counsel, the district court affirmed the Board’s dismissal of Sgt. Miaz-za’s appeal. In its reasons for judgment, the district court noted that the 2000 census for the City indicated fewer than 13,-000 residents, thereby placing the City in the category of having a population of not less than seven thousand and not more than thirteen thousand. See LSA-R.S. 33:2531. The court also stated that the Board’s authority under 1984 La. Acts, No. 164, § 4 (Act 164) concerned only dismissals, suspensions, demotions, and other [.¡disciplinary matters, none of which were implicated in this case. See also LSA-R.S. 33:2537. Therefore, Sgt. Miazza had no cause of action to appeal the promotion decision, and the Board had no jurisdiction over his appeal of that decision. Moreover, although he might have had a cause of action to challenge the job qualifications or grading system, any such claim was prescribed, because it had not been filed within the time periods specified in the police manual or the applicable statute. In his appeal to this court, Sgt. Miazza assigns as error the district court’s findings that the Board had no subject matter jurisdiction over his appeal, that his appeal had prescribed, and that he had failed to state a cause of action.

Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. In re Succession of Theriot, 08-1233 (La.App. 1st Cir.12/23/08), 4 So.3d 878, 881. Therefore, our initial focus is on whether this court has, or the district court had, subject matter jurisdiction over Sgt. Miazza’s appeal of the Board’s decision. For the purpose of judicial review of administrative action, district courts are courts of limited jurisdiction and only have appellate jurisdiction to review administrative actions as provided by the legislature or the constitution. See LSA-Const. art. V, § 16(B); Loop, Inc. v. Collector of Revenue, 523 So.2d 201, 203 (La.1987); Metro Riverboat Associates, Inc. v. Louisiana Gaming Control Bd., 01-0185 (La.10/16/01), 797 So.2d 656, 660. Consequently, a litigant seeking judicial review of administrative action in a district court must establish that there is a statute which gives subject matter jurisdiction to that court. Loop, 523 So.2d at 203. The only applicable statute addressing judicial review in matters involving the fire and police civil service law for small municipalities and for parishes and fire protection districts is LSA-R.S. 33:2561(E). It states that any employee under classified service may appeal from any prejudicial decision of the board by timely serving the board with a written notice of appeal and demanding that a transcript of the record be filed with “the designated court.” However, the legislature failed to designate a particular court to hear such | ¿appeals. Therefore, there is no statutory authority for the 22nd JDC to review this matter.

The only other basis for jurisdiction would be if a constitutionally protected property or liberty interest were involved, in which case, access to the court could not be denied. This case involves a decision not to promote an individual, which is not a constitutionally protected property interest. Cf. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1st Cir.9/12/01), 809 So.2d 258. Therefore, neither the process used nor the decision made is subject to constitutional scrutiny, and the district court did not have jurisdiction on a constitutional basis.

Having concluded that the district court had no subject matter jurisdiction over Sgt. Miazza’s appeal, we must further conclude that this court has no appellate jurisdiction, because the district court had none. Our jurisdiction in this case is limited to the purpose of correcting the error of the lower court in entertaining the petition for judicial review by vacating its judg-raent, but not for the purpose of determining the merits. See Metro Riverboat Associates, Inc., 797 So.2d at 663. Because the district court’s judgment was void for lack of jurisdiction, this court, having nothing to review, must simply vacate the district court judgment and dismiss the appeal without reaching the merits of the case. Id.

CONCLUSION

For the foregoing reasons, we vacate the judgment of the district court and dismiss this appeal. This decision is issued in compliance with Rule 2 — 16.1(B) of the Uniform Rules — Courts of Appeal. All costs of this appeal are assessed to Kalford K. Miazza.

JUDGMENT VACATED; APPEAL DISMISSED.

McDONALD, J. dissents and assigns reasons.

McDONALD, J.,

dissenting:

|,I agree that the statute controlling this matter is La. R.S. 33:2561, which addresses appeals of actions taken by fire and police civil service boards in small municipalities and for parishes and fire protection districts. Section E of the statute provides that “[A]ny employee under classified civil service and any appointing authority may appeal from any decision of the board or from any action taken by the board under the provisions of this Part which is prejudicial to the employee or appointing authority.” The “Part” referred to is Part III of Title 33, providing statutory law for municipalities and parishes. It also describes the procedure that must be followed to effect the appedl.

It is true that the statute states that the record be filed with “the designated court.” However, I do not think that the fact that the legislature didn’t specifically identify “the designated court” means there is no statutory authority for the 22nd |2Judicial District Court to review the matter. Obviously, the purpose of the statute is to establish the right of an appeal. I do not think it is beyond the capabilities or function of the judiciary to interpret the statute so as to give effect to the legislative intent.

Title 33 of the revised statutes deals with municipalities and parishes. It creates numerous districts, e.g. water and sewerage districts, boards and commissions. Title 33, chapter 4 provides for Fire and Police Departments. Title 33, chapter 5 provides for Civil Service. Part I of chapter 5 applies to civil service for cities of over 100,000 population; Part II applies to fire and police civil service law for municipalities between 13,000 and 250,-000; Part III applies to fire and police civil service for small municipalities and for parishes and fire protection districts.

The legislature puts forward, in some detail, how these boards and commissions will operate and what functions they are to perform. These include provisions regarding establishment and maintenance of employment lists, promotional testing, reinstatement and reemployment rights, to name a few. One legislative purpose is to protect government employees from discriminatory and prejudicial actions in the workplace for reasons other than the capacity and fitness to hold the position. This legislative purpose is applicable to all persons serving in fire and police departments. Both individuals and the appointing authorities have the right to appeal decisions of the Boards in Parts I and II. I do not think the legislature intended, nor would any governmental purpose be served, by creating different substantive rights dependant on the size of the community in which one lives.

Generally, it is not the province of the judiciary to intrude on the authority of a fire or police chief to promote the person of his or her choice. However, it is the function of the judiciary to insure that the procedure by which positions are filled ^conform to the statutory requirements, and that the safeguards enacted for the protection of classified civil service employees are observed. Further, the Louisiana Constitution, Art. 10 § 17 provides:

Permanent appointments and promotions in municipal fire and police civil service shall be made only after certification by the applicable municipal fire and police civil service board under a general system based upon merit, efficiency, fitness, and length of service as provided in Article XIV, Section 15.1 of the Constitution of 1921, subject to change by law enacted by two-thirds of the elected member of each house of the legislature.

I believe that Sgt. Miazza has a statutory right to an appeal to the district court of the decision of the appointing authority and confirmed by the civil service board. I believe the decision of the district court is reviewable by a court of appeal. Therefore, I respectfully dissent.


author: WALTER J. ROTHSCHILD, Judge. WICKER, J.

text:
    Rick MURRAY v. SERVALL SERVICES, INC.
    No. 09-CA-107.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      William R. Mustian, III, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    Mark L. Clark, Christopher G. Ayres, Charles G. Clayton, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

|2In this workers’ compensation case, defendant appeals from a ruling of the workers’ compensation judge finding claimant to be permanently and totally disabled. For the reasons stated herein, we affirm.

On August 7, 2006, Rick Murray filed a disputed claim for compensation against his employer, Servall Services, Inc. on the basis of a work-related accident which occurred on June 13, 1995. Claimant represented that his wage benefits as a result of this accident were terminated on October 1, 2005 and that he is permanently and totally disabled. He also sought penalties and attorney’s fees for the employer’s actions in terminating benefits. Servall Services, Inc. answered the claim, disputing claimant’s disability status.

This matter was tried on June 18, 2008, and the workers’ compensation judge took the matter under advisement. Following the submission of post-trial briefs, the workers’ compensation judge rendered judgment on September 17, 2008 finding claimant to be totally and ^permanently disabled. The court issued reasons for judgment on October 31, 2008. Servall Services, Inc. now suspensively appeals from this ruling.

On appeal, Servall Services, Inc. argues that claimant failed to meet his burden of proving permanent total disability under La. R.S. 23:1221, which provides in pertinent part as follows:

(2) Permanent total.
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subpar-agraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

To establish a right to receive temporary or permanent disability benefits, a claimant must show by clear and convincing evidence that he or she is unable to engage in any type of employment. La. R.S. 23:1221(1). To meet this burden, objective medical evidence is required. Greis v. Lake Charles Memorial Hosp., 97-1258, pp. 4-5 (La.App. 3 Cir. 3/6/98), 709 So.2d 986, 988, unit denied, 98-0937, 98-0938 (La.5/15/98), 719 So.2d 467. The trial court must weigh all the evidence, medical and lay, in order to determine if the plaintiff has met his burden. This factual finding should be given great weight and should not be overturned absent manifest error. Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277, 280 (La.1993).

“Clear and convincing” in the workers’ compensation context is an intermediate standard falling somewhere between the ordinary preponderance of the evidence civil standard and the beyond a reasonable doubt criminal standard. Hatcherson v. Diebold, Inc., 00-3263, p. 4 (La.5/15/01), 784 So.2d 1284, 1288.

The parties entered into the following stipulations at trial: that claimant injured his back on June 13, 1995 in the course and scope of his employment; claimant’s average weekly wage is $411.30; his compensation rate was $274.20; the employer paid 520 weeks of supplemental earnings benefits through August 18, 2005 for a total of $175,059.81 and $416,044.50 in medical benefits through June 17, 2008 The parties also submitted claimant’s medical records, his physicians’ reports and depositions, as well as the Functional Capacity Evaluation report submitted by his physical therapist and the reports of the vocational rehabilitation counselors.

At trial, Rick Murray testified that while he was working as a janitorial supervisor for defendant, he sustained an injury to his back while lifting a battery out of a floor buffer. Over the next several years, claimant underwent several back surgeries, including a cage fusion, and that he has been unable to work since the accident. He continues to have severe pain in his back and both legs and feet and he walk with a cane for balance. He also suffers from depression and cannot do anything for any length of time, including sitting, standing or doing household chores. He also has to lie |sdown periodically because his legs and back hurt him. He takes several types of pain medicine daily which causes him to fall asleep easily. He stated he met with a vocational counselor, and applied for the jobs which were suggested but was unsuccessful in obtaining employment. At the time of trial, claimant was almost 50 years of age.

Claimant also submitted the testimony of Louis Lipinski who was accepted as an expert in the field of vocational rehabilitation. Mr. Lipinski testified he met with Mr. Murray on October 16, 2007 to conduct a vocational evaluation and he reviewed the claimant’s history and his medical information. As a result of this evaluation, Mr. Lipinski opined that Mr. Murray was disabled and could not return to any form of gainful employment. Mr. Lipinski testified that Mr. Murray’s skills as a crew boat captain were not transferable to obtaining future employment because of his physical injury and because of the long time period since he has held that job. Mr. Lipinski did not call any employers directly to determine if they would consider Mr. Murray for employment, but he reviewed the Department of Labor listings on employment and determined Mr. Murray was not capable of performing the jobs offered. Mr. Lipinski stated claimant did not have the general educational development or the motor skills to be successfully trained to do something that he doesn’t already know how to do. Mr. Lipinski did not believe that claimant had the ability to be competitively employed and that he did not believe claimant had the skills to perform the jobs suggested by defendant’s vocational counselor. Further, Mr. Lipinski specifically stated that he could not establish with reasonable certainty, giving his advanced age, marginal education, lack of |fitransferability of skills and restrictions to sedentary work, that he would be able to find a job for him.

Claimant also introduced the medical records and deposition testimony of Drs. James Denney, a psychiatrist, and Dr. Robert Fortier-Bensen, a pain management specialist.

Dr. Fortier-Bensen testified that he first saw claimant in 2003 after he had had five surgeries. He stated claimant was not a candidate for further back surgery, and was taking several medications for pain. He prescribed nerve blocks for claimant which only provided temporary relief. In 2007, Dr. Fortier-Bensen ordered a functional capacity evaluation, and as a result recommended that the claimant met the criteria for sedentary work with certain restrictions. However, Dr. Fortier-Ben-sen testified that for sedentary work to be possible on a long-term basis, claimant would have to be conditioned. Noting that the functional capacity evaluation is limited to what the patient can do for one day and not long term, Dr. Fortier-Bensen stated as follows:

What I’m thinking is he probably won’t be able to do this. So you understand how I generally look at Functional Capacity Exams, is I will generally look and say if a personal can do light work, I go to sedentary. If he’s sedentary, then I go to disabled. The reason I do that is because anybody — I can give them pain medicines, I can shoot their leg off and give them the paid medication and they’ll drag that leg around and get everything done for the day. But for the next four weeks or a month they’ll be miserable.

Dr. Fortier-Bensen testified that claimant is at maximum medical improvement and that he will need to take pain medication for the rest of his life. He stated that with injections for pain, claimant could possibly get back to work on a regular frequency. However, Dr. Fortier-Ben-sen noted that 17claimant would have to be properly conditioned to sustain any type of long term employment.

Dr. James Denney stated that claimant was referred to him in 2007 by Dr. Fortier-Bensen for an evaluation of his mental status and the appropriateness of his pain management and medication. Dr. Denney found his mental status to be impaired, “probably” to such a degree that he would be incapable of any sort of employment. Dr. Denney deferred to Dr. Fortier-Ben-sen on claimant’s physical capacities, but until his pain were better resolved, he did not think a return to work was probable. He stated that a structured work program would be positive for the claimant’s mental state, and would support Dr. Fortier-Ben-sen’s opinion of his physical abilities. Dr. Denney also thought that cognitive behavioral therapy should be pursued to assist claimant with coping skills involving his physical condition.

Defendant presented the testimony of Stacie Nunez, who was accepted as an expert in the area of vocational rehabilitation counseling. Ms. Nunez interviewed Rick Murray on May 13, 2008 at the request of defendant, and she reviewed his educational background, his work history, and his medical information prior to this interview. She also performed vocational testing at this time. Ms. Nunez testified that on the same day, she contacted potential employers to identify jobs within Mr. Murray’s physical and mental restrictions. Ms. Nunez also met with Dr. Fortier-Bensen on May 14, 2008 and that Dr. Bensen stated that Mr. Murray was capable of working in the jobs she identified in a part-time capacity. She stated Dr. Ben-sen believed it would be beneficial for claimant to return to some kind of work. However, Ms. Nunez stated her efforts to assist Mr. Murray in obtaining employment were not successful.

| ¿Following trial, the workers’ compensation judge took the matter under advisement and requested post-trial memoranda from both parties. On September 17, 2008, judgment was rendered finding claimant was entitled to permanent and total disability benefits and to medical expenses, including cognitive behavior therapy, medication expenses, and transportation expenses. The judgment also stated that the findings could be modified if claimant’s condition improved, but that claimant would be entitled to “true meaningful vocational rehabilitation and retraining, and work hardening.”

Defendant requested written reasons for judgment, which were provided by the workers’ compensation judge on October 31, 2008. Defendant also filed a motion for suspensive appeal from the judgment which was granted on October 28, 2008.

By this appeal, defendant contends that the workers’ compensation judge erred in finding that claimant was permanently disabled. Defendant argues that claimant failed to meet his burden of proving permanent and total disability under La. R.S. 23:1221, citing to this Court’s decision in Camardelle v. K Mart Corp., 04-224 (La.App. 5th Cir.7/27/04), 880 So.2d 90. In that case, the Court found that all of the medical testimony presented indicated that claimant was capable of performing sedentary work activities, and the Court reversed the trial court’s finding of total and permanent disability. Id., 04-224, p. 7, 880 So.2d at 94.

However, the facts of the case now before us are distinguishable from those presented in the Camardelle case, where there was no evidence presented that at the time of trial claimant was capable of performing sedentary work activities. In the present case, we find that the record indicates that claimant met his burden of proving by clear and convincing evidence that he is unable to engage in any type of employment.

At trial, claimant testified that he was incapable of doing anything for any length of time, including sitting, standing or doing household chores. He stated he is in constant pain and has to lie down during the day in addition to taking numerous medications for pain. He falls asleep due to the dosage of his medication and has become depressed. The workers’ compensation judge found claimant’s testimony to be credible and noted that he gave a good effort during the functional capacity evaluation testing.

Further, although claimant’s treating physician noted that the functional capacity evaluation indicated that claimant met the physical criteria for sedentary work with restrictions, his treating physician qualified the findings with a statement that test results of sedentary usually indicate the patient is disabled. Dr. Fortier-Ben-sen also stated that if claimant had the benefit of conditioning and vocational training, he may be able to get back to work at some point. However, the physician noted that the patient was not receiving the necessary treatment to enable his return to work. In addition, the medical testimony provided by Dr. Denney reinforced this opinion that based on claimant’s mental status, he was incapable of returning to work at the present time.

The record also contains the testimony of the vocational counselor, Mr. Lipinski, who was found to be credible by the workers’ compensation judge. Mr. Lipinski found that claimant is unable to engage in any gainful employment because of his physical problems and pain, in addition to his lack of education and advanced age. The trial court apparently did not credit the testimony of Ms. Nunez who found that claimant had transferable skills 110and the ability to obtain employment in jobs approved by his treating physician.

It is well-settled that factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of review. In applying the manifest error-clearly-wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Seal v. Gaylord Container Corp., 97-688, p. 4 (La.12/02/97), 704 So.2d 1161, 1164.

After a careful review of the record, including the pleadings, trial testimony and exhibits, we fail to find the workers’ compensation judge was clearly wrong in finding claimant was totally and permanently disabled in this case. The reasons for judgment indicate that the workers’ compensation judge weighed all the evidence, medical and lay, and determined that claimant met his burden of offering clear and convincing evidence that he is unable to engage in any type of employment. Both claimant’s testimony and the medical and vocational evidence introduced supports a finding that claimant is disabled. We find the determinations of the workers’ compensation judge are reasonable in view of the record in its entirety, and we therefore affirm the ruling finding claimant to be totally and permanently disabled.

As the pai’ties have stipulated to claimant’s compensation rate and the date of termination of benefits, there is no need to remand to the trial court for a calculation of benefits owed. However, defendant may seek any credits or offsets to which it is entitled as a result of any payments to claimant during the pendency of these proceedings.

AFFIRMED.

WICKER, J., dissents with reasons joined by McManus, J.

WICKER, J.

Dissenting.

| |I respectfully dissent from the majority because in my view the judgment is an impermissible partial judgment for which the law does not authorize an immediate appeal.

In this matter, the employer appeals a judgment that determines the employee is permanently totally disabled and is entitled to benefits from August 18, 2005 through the present and continuing. The judgment also finds that the claimant is entitled to medical expenses. Further, the judgment states that it can be modified if the claimant’s condition improves. Finally, the judgment allows the employer a credit for any benefits it paid.

The judgment, however, does not indicate the amount of benefits nor does it indicate the amount of credit to which the employer is entitled. In addition, the claimant sought attorney’s fees and penalties but the judgment does not address this aspect of the claimants’ claim.

At trial, the parties stipulated to the amount of the claimant’s average weekly wage ($411.30), the compensation rate ($274.20), which was originally set, pursuant to a consent judgment between the parties on December 18, 1996, and the amounts paid by the employer in compensation and medical benefits. Therefore, the parties are bound by those stipulations. Although bound, the trial judge did not incorporate these amounts in her judgment nor did she make any calculations based on the stipulations.

|2The law is clear that under the Workers’ Compensation Act only final judgments which adjudicate the entire claim are appealable. Beaumont v. Exxon Corp., 98-1239, p. 2 (La.App. 5 Cir. 4/27/99), 734 So.2d 155, 156. In Smith v. UNR Home Products, 614 So.2d 54 (La.1993), the Court stated:

LSA-R.S. 23:1310.5 contemplates an appeal from a final decision by the hearing officer upon completion of the required evidentiary hearing or hearings. Piecemeal appeals go counter to the new workers’ compensation procedures which are designed to allow the hearing officer to “decide the merits of the controversy as equitably, summarily and simply as may be.” LSA-R.S. 23:1317(A). The new procedures are designed to speed up the adjudicative process, not to prolong and complicate it by partial judgments and multiple appeals.

In the present case, the judgment is not final in that the essential issues of the case, i.e. the amount of compensation to which the claimant is entitled, the amount of credits due to the employer, the amount of medical expenses, and whether the claimant is entitled to attorney’s fees and penalties remain undecided.

The fact that there are outstanding issues to be determined is problematic because piecemeal adjudication and appeals cause delay and inefficiency, in direct contravention of the Workers’ Compensation Act’s goal of achieving a speedy resolution of injured workers’ claims. Marquez v. Jack Ussery Construction, 06-1852, p. 6 (La.App. 1 Cir. 6/8/07), 964 So.2d 1045, 1049, writ denied, 07-1404 (La.10/12/07), 965 So.2d 400.

In Volion v. Baker heritage, Inc., 97-92 (La.App. 5 Cir. 5/28/97), 695 So.2d 1038, this court dismissed an appeal. The court observed: ‘While the judgment in the instant case establishes the entitlement of the claimant to worker’s compensation benefits, it does not indicate the type or amount of those benefits.” 97-92 at 3, 695 So.2d at 1038. The court concluded that the judgment was not appealable. The court remanded the matter for ^consideration of the remaining issues presented by this claim. Id., 97-92 at 3, 695 So.2d at 1038-39.

To summarize, I find that the judgment is not appealable. It should be dismissed and remanded for a decision on all issues presented by this workers’ compensation claim. See: Flach v. Diebold, Inc., 07-576, p. 7 (La.App. 5 Cir. 11/7/07), 973 So.2d 1, 4.

      . The record does not contain a consent judgment.


author: MARC E. JOHNSON, Judge.

text:
    James PALMER v. Christopher WALKER, Brandon J. Enterprises, LLC d/b/a Scooters Chicken Delivery and United American Indemnity, Ltd. d/b/a United National Insurance Company.
    No. 09-CA-756.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.
    Harold M. Wheelahan, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Mickey S. Delaup, Stephanie L. Cook, Attorneys at Law, Metairie, LA, for Defendants/Appellees.

      Panel composed of Judges CLARENCE E. McMANUS, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

The Plaintiff, James Palmer, appeals a judgment in an automobile accident case that granted a peremptory exception of res judicata and/or motion for summary judgment filed by Defendants, Brandon J. Enterprises, L.L.C. d/b/a Scooters Chicken Delivery (Scooters), and United National Insurance Company (UNIC). We affirm.

At the time of the accident in September of 2007, Defendant, Christopher Walker, was returning to his employer’s restaurant after making a delivery when his vehicle struck the Plaintiffs car. Walker was in the course and scope of his employment with Scooters, a restaurant located in Jefferson Parish. The accident happened when Walker swerved into the left turning lane of Louisiana Highway 45 from the adjacent lane. Walker’s vehicle struck the passenger side of the Plaintiffs vehicle causing Plaintiffs damages. Walker was in a car owned by Jessica Sail, who was insured by Unitrin Specialty Insurance Company (Unitrin).

lain March of 2008, the Plaintiff settled his claims against Sail and Unitrin for $10,000.

In August of 2008, the Plaintiff filed suit against the Christopher Walker, Scooters, and Scooters’ insurer UNIC. In April of 2009, Scooters and UNIC filed a motion for summary judgment and/or an exception of res judicata citing the compromise and settlement agreement between the Plaintiff, Sail and UNIC. They contended that the Plaintiff failed to reserve his rights against them in the settlement and compromise agreement; thus they were released as well.

A hearing on the motion and/or exception was held in July of 2009. The trial judge rendered a judgment in favor of Scooters and UNIC on July 30, 2009, finding that the Plaintiff compromised all his claims in regard to the accident.

On appeal, the Plaintiff asserts that the trial judge erred by failing to recognize that an obligee need not expressly reserve any rights against solidary obligors as a reservation of rights against solidary obli-gors is presumed by law. Secondly, he contends that the trial judge erred by not considering evidence of the obligee’s intent in confecting the agreement.

The pertinent language of the release states that:

For the Sole consideration of ... I/we hereby release and discharge Jessica Sail and _ FINANCIAL INDEMNITY COMPANY, together with all other persons, firms, and corporations from any and all claims, demands, damages, consequential damages, actions and judgments which I/we now have or may have, in law or in equity, arising out of any and all personal injuries, damages, punitive damages, expenses, and any loss or damage resulting or to result from an accident occurring on or about 9/15/2007 at or near Marrero, LA. [Emphasis added.]

A summary judgment motion is the appropriate procedure to use when the matter has been compromised and settled. Brown, v. Drillers, Inc., 630 So.2d 741, 747 n. 7 (La.1994). Furthermore, a plea of res judicata may be raised by motion for summary judgment when there is no genuine issue as to any material fact. R.G. Claitor’s Realty v. Juban, 391 So.2d 394, 403 (La.1980); See also Pittman v. State Farm Mut. Auto. Ins. Co., 06-920 (La.App. 5 Cir. 4/24/07), 958 So.2d 689, unit denied, 08-0011 (La.2/22/08), 976 So.2d 1288.

In King v. Illinois Nat. Ins. Co., 08-1491, p. 6 (La.4/3/09), 9 So.3d 780, 784, the Louisiana Supreme Court reiterated the law as to summary judgment.

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be construed to favorably accomplish these ends. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue of material fact, and the mover is entitled to judgment as a matter of law. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue of material fact is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. [Citations omitted.]

A valid compromise can form the basis of a plea of res judicata. Brown v. Drillers, 630 So.2d at 747; Raymond v. Video Inspection Services, Inc., 09-38, p. 4 (La.App. 5 Cir. 6/23/09), 16 So.3d 439, 441.

La. R.S. 13:4231 defines res judicata as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same pai'ties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
15(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence. Brown v. Drillers, 630 So.2d at 747; Raymond, v. Video Inspection, 09-38 at 4, 16 So.3d at 441.

The Plaintiff argues that the settlement does not include the Defendants because they are solidary obligors with Walker and as such, the law presumes a reservation of those rights. They contend that, insofar as the Defendants are third-party beneficiaries of the settlement, any reservation of rights should be expressed, and if not, a determination of the intent of the parties is warranted. The Plaintiff asserts that a determination of the intent of the parties is necessary here, and that it raises a material issue of disputed fact precluding a summary judgment. The Plaintiff argues that he did not intend to release the Defendants in this case. The Plaintiff cites Bordelon v. Foster, 2008 WL 482613 (USDC, WD La. 02/19/08) in support.

In Bordelon, the court found that the settlement and compromise between that plaintiff and the defendant/driver did not release the driver’s employer. There, however, it appears that the plaintiff may not have known when she executed the release that the tortfeasor was in the course and scope of his employment when the accident occurred. Thus, that case is clearly distinguishable, as there are no allegations in this case that this Plaintiff was likewise unaware of that critical fact.

Furthermore, the Louisiana jurisprudence has consistently found that a failure to specifically reserve rights under similar facts results in a release of all non-settling parties, including employers and their insurers. See Migliore v. Traina, 474 So.2d 980 (La.App. 5 Cir.1985); Hudson v. Progressive Sec. Ins. Co., 43,857 (La.App. 2 Cir. 12/10/08), 1 So.3d 627, 633, writ denied, 09-0235 (La.3/27/09), 5 So.3d 148; Baudoin v. Montoya, 07-910 (La.App. 3 Cir. 1/30/08), 974 So.2d 877, writ denied, 08-0479 (La.5/2/08), 979 So.2d 1284.

The Plaintiff also alleges that he did not intend to release the Defendants, which raises a material issue of disputed fact precluding summary judgment.

When the words of a contract are clear and unambiguous, no further interpretation is made into the parties’ intent. La. C.C. art. 2046. Instead, the meaning and intent of the parties is determined within the four corners of the contract, and its terms should not be explained or contradicted by extrinsic evidence. Brown v. Drillers, 630 So.2d at 748; Corbello v. Iowa Prod., 02-0826, p. 6 (La.2/25/03), 850 So.2d 686, 693.

In this case, we find that the words of this settlement and release are clear and unambiguous. In the compromise document, the Plaintiff agrees to release “all other person, firms, and corporations” involved in the accident in exchange for the stated monetary compensation. Both of the Defendants are “firms” and/or “corporations.” Since the agreement does not expressly reserve the Plaintiffs rights to file an action against the Defendants, we find that, while a harsh result, the trial judge did not err in finding that the release applies to them. Thus, the trial judge correctly granted the summary judgment.

Accordingly, the summary judgment is hereby affirmed. Costs of this appeal are assessed against the Appellant.

AFFIRMED

      . The first name of the settling insurer is blacked out on the copy of the agreement in the record.


author: JUDE G. GRAVOIS, Judge.

text:
    Gary BELL, Nick Cammarata and Mike Deharde v. RIMKUS CONSULTING GROUP, INC. OF LOUISIANA and Rimkus Consulting Group, Inc.
    No. 09-CA-343.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 12, 2010.

      Larry E. Demmons, Attorney at Law, New Orleans, LA, for PlaintiffiAppellant.
    Nelson W. Wagar, III, Sarah Ney, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

12The plaintiffs in this wage dispute action, Gary Bell, Nick Cammarata and Mike DeHarde (“plaintiffs”), are former employees of the defendants, Rimkus Consulting Group, Inc. and Rimkus Consulting Group, Inc. of Louisiana (“defendants”). In their pleadings, plaintiffs claim that they are due additional bonuses wages from defendants for 2005 and 2006 under defendants’ Profit Sharing Plan, and since such additional bonus wages were not timely paid, they are also entitled to penalties and attorneys’ fees under the Louisiana Wage Claim Act, LSA-R.S. 23:631, et seq. A bench trial on the merits of this matter ensued. At the conclusion of plaintiffs’ case, the trial court granted defendants’ Motion for Involuntary Dismissal as to plaintiffs’ 2006 claims. At the conclusion of the trial, the trial court ruled in favor of defendants, dismissing plaintiffs’ 2005 claims. Plaintiffs have appealed this judgment. Since plaintiffs have not appealed the dismissal of their 2006 claims, this appeal only involves plaintiffs’ 2005 claims. For the reasons that follow, we affirm.

| ¿FACTS AND TESTIMONY ADDUCED AT TRIAL

According to the evidence admitted at trial, defendants’ Profit Sharing Plan (“the Plan”) provides for a “bonus pool” of money for defendants’ employees equal to 20% of defendants’ pre-tax net operating income. This “bonus pool” of money was available for distribution to employees of those of defendants’ various divisions and branches that reached a certain profit level. Section F of the Plan sets forth the ranges of suggested distribution of this “bonus pool” of money to defendants’ employees, to-wit:

• Division Manager- — No less than 15%, no more than 50% of total division bonus.
• Professional Billing Staff — No less than 30%, no more than 60% of total division bonus.
• Marketing Staff — No less than 10%, no more than 30% of total division bonus.
• Administrative and Clerical Staff — No less than 5%, no more than 15% of total division bonus.

The Plan further provides that these ranges of suggested distribution “may be adjusted to allow for individual office staffing.”

Plaintiff, Gary Bell, testified that he was the Central Region Manager for defendants and worked out of defendants’ New Orleans branch office. Mr. Bell explained that the Plan, which was put into place in 2000, was used by defendants to recruit new employees and to motivate employees to work. Mr. Bell testified that he was told by his supervisor, Curtis Brown, that defendants decided to decrease the amount of the 2005 “bonus pool,” resulting in $500,000 being taken out of the 2005 “bonus pool” and placed into the 2006 “bonus pool.” Mr. Bell further explained that had this $500,000 not been removed from the 2005 “bonus pool,” the New Orleans branch would have had an additional $83,156 available to pay bonuses to the employees of that branch for 2005. Mr. Bell calculated that [^because the bonus of $130,000 that he actually received for 2005 represented 30% of the 2005 bonus money employees of the New Orleans branch actually received, he was due an additional 2005 bonus of $24,946.80 (being 30% of the $83,156 New Orleans branch bonus money shortfall).

On cross-examination, Mr. Bell acknowledged that because audits of defendants’ financial records done by an outside firm delayed the determination of the yearly “bonus pool” called for under the Plan, employees actually received their bonuses during the subsequent calendar year. In other words, he would not receive his 2005 bonus until sometime during 2006.

Mr. Bell further testified that, in accordance with the portion of Section F of the Plan quoted above, his bonus as Division Manager would be between 15% and 50% of the total New Orleans Division bonus money available. Mr. Bell stated that his 2005 actual bonus was set by Curtis Brown and the company’s board of directors. As the Division Manager, Mr. Bell determined the actual bonuses to be paid to Mr. Cam-marata and Mr. DeHai-de, subject to approval of the company’s board of directors. These plaintiffs fell under the Professional Billing Staff designation in Section F of the Plan, calling for their bonuses to be between 30% and 60% of the total New Orleans Division bonus money available. Mr. Bell stated that he assigned bonuses based on the number of hours the employees worked.

Plaintiff, Nick Cammarata, testified that he was a Central Regional Property Manager for defendants. He stated that defendants introduced the bonus plan as an additional way for employees to earn money. Mr. Cammarata testified that he actually received a bonus of $29,000 for 2005 and that he filed this action seeking to recover his percentage of the bonus money that was withheld from the New Orleans branch’s “bonus pool.”

| ,-,On cross-examination, Mr. Cammarata testified that he fell under the Professional Billing Staff designation in Section F of the Plan, calling for his bonus to be between 30% and 60% of the total New Orleans Division bonus money available. He acknowledged that even if he knew the exact amount of money the New Orleans office had available for payment of bonuses, he “still would be unable to calculate” his particular bonus. Mr. Cammarata admitted that “we never discussed what I was going to get,” and he never knew “how much his bonus would be.”

Plaintiff, Michael DeHarde, testified that he worked as an engineer for defendants. He stated that he actually received a bonus of $28,000 for 2005. He sought to recover his share of the bonus money that was left out of the 2005 “bonus pool” for the New Orleans office. Mr. DeHarde reasoned that since the bonus he actually received for 2005 was six per cent of the total 2005 bonus money actually received by the New Orleans office, he was entitled to that same percentage of the money that was taken out of the 2005 New Orleans “bonus pool.”

On cross-examination, Mr. DeHarde admitted that he did not know exactly “what [his] bonus was going to be,” but he knew that Mr. Bell made bonus recommendations that had to be approved by the company’s officers and board of directors. He acknowledged that individual bonus percentages were discretionary.

Curtis Brown, senior vice president of defendants, testified that the Plan called for 20% of defendants’ pre-tax profit to go into the “bonus pool.” He explained that divisional bonuses are calculated according to the profits made by those individual offices. Mr. Brown testified that the bonuses were not always distributed according to the Plan because the Plan was a guideline and the payment of bonuses was discretionary.

JjMr. Brown admitted that $500,000 that would have gone into the company’s 2005 “bonus pool” was removed and put into the company’s 2006 “bonus pool.” He explained that this money was removed from the 2005 “bonus pool” because the company had at that time large expenses for legal fees and millions of dollars in accounts receivables that were outstanding for 120 days or longer. Mr. Brown stated that the calculations for the “bonus pool” were based on earnings, not on amounts collected by the company.

Mr. Brown further testified that he and another officer of defendants determined Mr. Bell’s bonus for 2005, stating that the bonus could have been more or less than the percentages provided for in the Plan. He calculated Mr. Bell’s actual 2005 bonus to be 29.7% of the New Orleans branch’s “bonus pool,” which was within the percentage range called for by the Plan for Mr. Bell. Mr. Brown stated that bonuses for Mr. Cammarata and Mr. DeHarde were set by Mr. Bell and these were not changed by the company’s board of directors. According to Mr. Brown, the 2005 bonuses that Mr. Cammarata and Mr. De-Harde actually received were also within the percentage ranges called for in the Plan for them. Mr. Brown testified that because payment of the bonuses in question was discretionary, the placement of additional amounts in the company’s 2005 “bonus pool” would not nécessarily have resulted in plaintiffs receiving more money for 2005.

Mr. Brown disputed plaintiffs’ contention that if the $500,000 had not been removed from the company’s 2005 “bonus pool,” the New Orleans branch would have received an additional $83,156 available for 2005 bonus distributions. According to Mr. Brown, Mr. Bell took some of the money that was intended for the New Orleans branch and “shifted it outside the region to another location” because Mr. Bell wanted to compensate employees from some other regions that |7had assisted the New Orleans branch during 2005. Mr. Brown also stated that plaintiffs’ calculations included a mathematical error.

After a lengthy trial, the trial court rendered judgment in favor of defendants finding that although the bonus payments for 2005 sought by plaintiffs were wages to which plaintiffs were entitled, plaintiffs had failed to prove that the 2005 bonus payments they actually received were insufficient and that they would have been entitled to an additional percentage of the funds allegedly withheld from the 2005 “bonus pool” by defendants. Plaintiffs have appealed that judgment.

ARGUMENTS OF THE PARTIES

Plaintiffs contend that because defendants withheld a portion of the 2005 bonus money that was supposed to be paid to the New Orleans branch employees under the Plan, they did not receive the full 2005 bonus wages that they were entitled to under the Plan. In support of this position, plaintiffs cite the following portions of the Plan:

Those divisions and branch offices which make an annual pre-tax operating income PROFIT ... shall receive PROFIT SHARING BONUS PAYMENTS, which in the aggregate, are equal to Twenty percent (20%) of the Pre-Tax, Pre-Bonus NET OPERATING INCOME of the corporation,....
Those division and branch offices which make a PROFIT for the year shall receive PROFIT SHARING BONUS PAYMENTS (equal in total to 20% of the Corporate Pre-Tax, Pre-Bonus NET OPERATING INCOME) in proportions based upon each of their relative contributions....
An additional ANNUAL CORPORATE BONUS will be paid to all eligible employees based on remaining Corporate Pre-tax Net Operating Income....

Based on this language, plaintiffs contend that the bonuses called for in the Plan are mandatory, rather than discretionary. While plaintiffs acknowledge that there is some discretion in determining who bonuses are distributed to within the New | ^Orleans branch, the Plan does not provide for any discretion with respect to the amount of bonus money to be made available for distribution to the New Orleans office employees. Plaintiffs contend there is nothing under the Plan that allows defendants to change the amount of money that is required to be distributed to the company’s divisions and branches. Plaintiffs argue that if bonus payments under the Plan are discretionary, as defendants have contended, then there would have been no reason for defendants to have amended the Plan in 2006 to make contributions for bonus payments discretionary by the company.

Plaintiffs further argue that based on documents provided by defendants through discovery and admitted into evidence at trial, the New Orleans office was due $505,396 for 2005 bonuses under the Plan, yet only $422,240 was made available for 2005 bonuses for the New Orleans office, leaving a shortfall of $83,156. Plaintiffs calculate the additional amounts due each of them individually based on the percentages of the actual bonuses they respectively received for 2005 as follows: Mr. Bell claims that he is owed an additional $24,946 for 2005, while the other two plaintiffs claim they are each entitled to an additional $4,949 for 2005.

In response, defendants contend that as a closely held corporation, they could administer, modify, or terminate their own profit sharing plan at any time in order to comply with their fiduciary duties to the corporation in order to maintain financial stability of the company. Defendants concede that had money not been removed from the bonus pool for 2005, the New Orleans branch would have received an additional $83,156 available for payment of bonuses to New Orleans branch employees. Defendants argue, however, that plaintiffs want the Court to assume that these additional funds would have been distributed to plaintiffs in accordance with the same percentages as the bonuses actually received by | ^plaintiffs. Defendants contend that although plaintiffs might have respectively received some additional bonus had the extra funds been made available for bonus distribution to New Orleans branch employees, based on the evidence introduced, there is no way to calculate plaintiffs’ extra bonus amounts with the degree of certainty required by LSA-R.S. 23:631. Defendants conclude that discretionary payments of money that are not reasonably capable of being ascertained by certain mathematical calculation cannot be considered as wages under the statute. Additionally, defendants contend that because the written terms of plaintiffs’ respective employment agreements did not include the right to receive bonuses, plaintiffs had no enforceable legal right to bonuses under either contract law or pursuant to LSA-R.S. 23:361.

ANALYSIS AND FINDINGS

Plaintiffs filed this action under LSA-R.S. 23:631 A(l)(b) which provides in pertinent part:

Upon the resignation 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 for the pay cycle during which the employee was working at the time of separation or no later than fifteen days following the date of resignation, whichever occurs first.

The trial court judgment herein states, in pertinent part:

[T]he court finds that the bonus payments for the year 2005 demanded by plaintiffs were “wages” to which the plaintiffs were clearly entitled. However, the court further finds that the plaintiffs failed to prove that the amounts of bonus payments which were received by the plaintiffs for the 2005 year were insufficient and that plaintiffs would have been entitled to an additional certain percentage of the amount of funds allegedly withheld from defendants.

|1ftThe judgment also finds that plaintiffs’ actual bonuses were not awarded as a percentage; rather, given that plaintiffs’ bonus payments were awarded in $1,000 increments, they were awarded as a dollar amount. The judgment concludes that plaintiffs did not carry their burden of proving they were entitled to an additional percentage of the bonus funds allegedly withheld from the New Orleans branch employees.

While the trial court judgment does not specifically state that the bonus payments claimed by plaintiffs were wages under LSA-R.S. 23:631, because of the fact that this action was brought pursuant to that statute, we can only infer that the trial court made such a determination. Defendants urge this Court in brief to find that the bonus payments claimed by plaintiffs in this case do not constitute wages under LSA-R.S. 23:631. Although this contention by defendants may have some merit under the law, because defendants did not file their own appeal nor answer plaintiffs’ appeal, this Court is without authority to consider this issue. A party who has not appealed nor filed an answer to an appeal may not seek modification of that judgment. Matthews v. Consolidated Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191, reh’g denied 95-1925 (La.1/26/96), 666 So.2d 662. To modify this judgment in favor of the non-appealing defendant would be contrary to Louisiana law. La. C.C.P. Art. 2133. Accordingly, the only issue before this Court is whether plaintiffs have proven that they are entitled to the additional amounts claimed for 2005 under the Plan.

To recover wages and penalties under LSA-R.S. 23:631 and 23:632 for an employer’s failure to pay wages owed to a former employee, the employee must |nprove the wages were due and owing, that demand for payment was made at the place where he was usually paid, and that the employer failed to pay following the demand. Thomas v. DeJohn’s Plumbing and Heating Co., Inc., 380 So.2d 161, (La.App., 1979). The burden of proof rests upon the employee to show by a preponderance of the evidence the facts which establish his claim for the award of penalties. Harrison v. First National Funeral Homes, Inc., 244 So.2d 102 (La.App. 3 Cir.1971), writ not considered, 258 La. 345, 246 So.2d 195 (1971).

Our review of the record indicates that the trial court correctly found that plaintiffs failed to prove the first essential element, i.e., that the wages claimed were due and owing. The record is replete with testimony as to how the amount of bonus wages received by each individual branch was calculated and the range of suggested percentages to be paid to these plaintiffs under the Plan. We agree with the trial court’s conclusion that plaintiffs’ actual bonuses were awarded in fixed dollar amounts rather than pursuant to percentages. Plaintiffs received bonuses in the amounts of $130,000, $28,000, and $29,000, respectively. While Mr. Bell testified that he awarded bonuses based on the amount of hours individual employees worked, there was no testimony as to how those hours were used in determining what percentage of the bonus money available was due to each employee. Likewise, although Mr. Brown testified that he and another officer determined Mr. Bell’s 2005 bonus, there was no testimony as to how the percentages provided for in the Plan were used to arrive at the amount received by Mr. Bell. There was no evidence to support plaintiffs’ claim that had the New Orleans branch received the additional funds they allege were due, they individually would have actually received larger bonuses. In fact, there was uncontroverted testimony by Mr. Brown that Mr. Bell transferred some of the money allocated to the New Orleans branch to employees of other branches to | ^compensate employees outside of the New Orleans branch for work performed following Hurricane Katrina. Additionally, the wording of the Plan itself with regard to how the money received by a particular branch is divided among the employees of that particular branch states that the percentages may be adjusted depending on “individual office staffing.” This would allow the percentages awarded to individual employees to be above or below the suggested percentages stated in the Plan. In sum, we find that there was simply no convincing proof that plaintiffs are owed additional money from defendants for 2005.

Thus, given the testimony and evidence presented, we find no error in the tidal court’s ruling that plaintiffs failed to prove that the 2005 bonuses plaintiffs actually received from defendants would have been larger had the additional bonus funds in question been made available for New Orleans branch bonus distributions.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of defendants dismissing plaintiffs’ claims is hereby affirmed.

AFFIRMED.

      . Plaintiffs urge this Court to follow the ruling of the trial court in Kaplon v. Rimkus Consulting Group, Inc. of Louisiana, 2008-795, rendered by the Civil District Court for the Parish of Orleans. In Kaplon, the trial court held that the defendant improperly withheld earned bonus wages from its employees for the year 2005. While the facts of Kaplon do appear to be very similar to the instant case, this Court is unaware of the proof presented by the plaintiff to the court in Kaplon, thus we decline to rely on the holding in Kaplon to reverse the findings of the trial court in the instant matter.