author: PAINTER, Judge.

text:
    Roger RIVERS v. BO EZERNACK HAULING CONTRACTOR, INC. and Bridgefield Casualty Insurance Company.
    No. 09-991.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Donald J. Anzelmo, Attorney at Law, Monroe, LA, for Defendants-Appellants, Bo Ezernack Hauling Contractor, Inc. and Bridgefield Casualty Insurance Company.
    R. Bray Williams, Attorney at Law, Natchitoches, LA, for Plaintiff-Appellee, Roger Rivers.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

hThe employer and its insurer appeal the judgment of the Workers’ Compensation Judge (WCJ) in favor of the employee. The employee answers the appeal seeking additional attorney’s fees for work done on appeal. For the following reasons, we affirm the judgment and award $5,000.00 in additional attorney’s fees for work done on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

It is undisputed that the employee, Roger Rivers, was involved in an accident on October 10, 2007, wherein the fully-loaded log truck he was driving overturned, while in the course and scope of his employment with Bo Ezernack Hauling Contractor, Inc. (Ezernack Hauling). The average weekly wage of $714.00 and compensation rate of $476.02 are undisputed.

Rivers refused treatment at the time of the accident but did take three days off of work. He contends that he continued to work in pain. His last day at work with Ezernack Hauling, which is owned by Rivers’ nephew, was January 25, 2008. Defendants contend that Rivers’ employment was terminated due his consistently being late for work. Rivers was not seen by any physician in connection with the subject accident until February 12, 2008, some four months after the accident and after his separation of employment with Ezer-nack Hauling. At that time, he saw Dr. Miller at the Zwolle Medical Clinic and complained of neck pain, back pain, and numbness in his fingers extending up to his elbows. Dr. Miller took Rivers off of work at that time. Rivers returned to Dr. Miller on February 21, 2008, and complained of neck pain, bilateral hand and arm pain, low back pain radiating down his right leg, and right knee pain. Rivers saw Dr. Miller again on February 26 and March 8, 2008. Dr. Miller diagnosed Rivers with a herniated nucleus pulposus in the cervical and lumbar spine.

Rivers filed a motion for expedited hearing on March 27, 2008, which resulted in an order that Rivers was entitled to see Dr. Pierce Nunley, his choice of orthopedic surgeon. He was examined by Dr. Nunley on August 7, 2008, at which time Dr. |2Nunley recommended cervical and lumbar MRIs. Both cervical and lumbar MRIs were performed on February 20, 2009. The cervical MRI showed central disc herniation at C3-4 with cord contact and flattening of the cervical cord; central disc herniation at C4-5, cord flattening, and cord signal changes; central disc protrusion at C5-6 with mild flattening of the cord and neuroforaminal narrowing on the right; and mild degenerative changes at C6-7. The MRI of the lumbar spine showed broad-based disc bulge, facet hypertrophy, and severe stenosis in the sub-facet region and centrally at L2-3; broad-based disc bulge, fact hypertrophy, subfa-cet stenosis bilaterally likely affecting the L4 nerve roots at L3-4; severe spondylo-sis and severe central and lateral stenosis at L4-5; and disc herniation eccentric to the left, evidence of a previous right-sided decompression, and severe displacement of the left SI nerve root at L5-S1. Following the MRIs, Dr. Nunley recommended a cervical laminoplasty at C3 through C6 as well as a multilevel lumbar decompression to the sacrum.

Defendants contended that Rivers did not sustain any injury in the subject accident. Following trial, the WCJ found in favor of Rivers. Specifically, the WCJ found that Rivers was injured in the course and scope of his employment. The judgment ordered Defendants to: (1) authorize and pay for treatment by Dr. Nun-ley for cervical and lumbar spinal injuries; (2) pay temporary total disability (TTD) benefits in the amount of $476.02 per week from February 1, 2008 until further order of the court together with legal interest from the date of judicial demand until paid; (3) pay a twelve percent (12%) penalty on all back owed TTD benefits for the arbitrary and capricious failure to pay TTD benefits together with legal interest from the date of judgment until paid; (4) pay a statutory penalty in the amount of $3,000.00 for the arbitrary and capricious failure to timely and properly pay the May 20, 2008 judgment together with legal interest on the penalty from the date of judgment until paid; (5) pay a statutory penalty in the amount of $2,000.00 for the arbitrary and capricious failure to timely authorize the MRIs prescribed by Dr. Nunley together with legal intei'est on the penalty from the date of judgment until paid; (6) pay ^attorney’s fees in the amount of $7,500.00 together with legal interest from the date of judgment until paid; and (7) pay all costs of the proceedings together with legal interest from the date of judgment until paid. This appeal followed.

DISCUSSION

Defendants first contend that the trial court erred in finding that Rivers sufficiently met his burden of proving entitlement to compensation benefits and medical expenses as a result of the accident. Defendants aver that the WCJ’s decision to award benefits hinged solely on Rivers’ credibility and that the WCJ’s decision was manifestly erroneous in light of the “substantial evidence at trial which discredited the credibility” of Rivers.

f2] A “workers’ compensation judge’s determinations on whether the employee’s testimony was credible and on whether the employee met his burden of proof are factual findings not to be disturbed on appeal absent manifest error.” Jack v. Prairie Cajun Seafood Wholesale, 07-102, pp. 4-5 (La.App. 3 Cir. 10/3/07), 967 So.2d 552, 555-56, writ denied, 07-2388 (La.2/15/00), 976 So.2d 178 (citations omitted). In Corbello v. Coastal Chem. Co., Inc., 02-1241, p. 3 (La.App. 3 Cir. 3/5/03), 839 So.2d 1152, 1154, unit denied, 03-994 (La.5/30/03), 845 So.2d 1051 (quoting Mitchell v. Brown Builders, Inc., 35,022, p. 8 (La.App. 2 Cir. 8/22/01), 793 So.2d 508, 515, writ denied, 01-2649 (La.12/14/01), 804 So.2d 636), this court stated:

It is a well-settled legal principle that the factual findings in workers’ compensation cases are entitled to great weight. Reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed even though the appellate court may feel that its own evaluations and inferences are as reasonable. The trier of fact’s factual determinations shall not be disturbed in the absence of a showing of manifest error. When the trier of fact’s findings are reasonable in light of the entire record, an appellate court may not reverse a choice between two permissible views of the evidence.

Rivers testified that he had a prior back surgery in 1987 as a result of an accident that occurred while he was working for Rivers and Ezernack but that he had not had any real problems with his back after that surgery except that his back was sore every now and then. Medical records introduced at trial showed that he received treatment for back complaints in 2002, 2005, and 2007 (some nine months before the ^subject accident). After the subject accident, Rivers was also involved in an automobile accident while driving his brother’s pick-up truck. Rivers testified that he was uninjured in that accident. Rivers also testified that he worked for Malmay Logging after his employment with Ezernack Hauling was terminated. When asked why he told John Garcia, the Defendants’ investigator, that he had not been employed, he testified that he was scared and nervous and that he didn’t feel like he needed to tell Garcia anything else after he realized why Garcia was asking him questions. Rivers went to work for Malmay Logging on January 28, 2008, but was terminated a few days later because he was unable to perform his duties.

Rivers testified that following the subject accident, the lower part of his back and his neck started hurting and the tips of his fingers started getting numb. He further testified that this pain was different from the pain he felt following his previous back surgery. He testified that the pain caused him not to be able to get up in the mornings, which led to his being fired.

In the case sub judice, Rivers’ testimony was corroborated by the circumstances following the alleged incident, i.e., he attempted to work but could not. Additionally his testimony was corroborated by the medical evidence submitted. There is evidence which discredits or casts doubt upon Rivers’ credibility in the form of his inconsistent statements to Garcia. But, we are mindful that when there is a conflict in the testimony, as in this case, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though we may feel our own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Moreover, even though Rivers was injured in a prior accident, it has no bearing on this case. A claimant’s recovery under Louisiana’s workers’ compensation laws is not barred by a pre-existing condition because an employer takes the employee as he finds him. Fontenot v. Wal-Mart Stores, Inc., 03-1570 (La.App. 3 Cir. 4/7/04), 870 So.2d 540, writ denied, 04-1131 (La.6/25/04), 876 So.2d 843.

|BThe WCJ had the benefit of all of Rivers’ medical records and heard extensive cross-examination of him regarding his prior condition and how that condition affected him as well as how the subject accident affected his condition and his ability to work. The WCJ found that this evidence was sufficient to prove that Rivers’ back problems were caused by the subject accident. We find no manifest error in the WCJ’s conclusion that Rivers was injured in the course and scope of his employment or in its ordering Defendants to authorize and pay for treatment by Dr. Nunley for cervical and lumbar spinal injuries.

Defendants further contend that the WCJ erred in finding that they were arbitrary and capricious in the failure to pay TTD benefits and medical expenses. Defendants aver that their denial of this claim was based upon a serious defense made in good faith such that award of penalties and attorney’s fees in precluded.

“The determination of whether an employer should be cast with penalties and attorney fees is a question of fact which should not be reversed absent manifest error.” Sigler v. Rand, 04-1138, pp. 10-11 (La.App. 3 Cir. 12/29/04), 896 So.2d 189, 196, writ denied, 05-278 (La.4/1/05), 897 So.2d 611 (citing Romero v. Northrop-Grumman, 01-24 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144). Arbitrary and capricious behavior has been defined as “ ‘willful and unreasonable action, without consideration and regard for the facts and circumstances presented.” Reed v. State Farm Mut. Auto. Ins. Co., 03-107 (La.10/21/03), 857 So.2d 1012, 1021, fn. 8 (citing J.E. Merit Constructors, Inc. v. Hickman, 00-943 (La.1/17/01), 776 So.2d 435).

Defendants presented no testimony concerning their investigation or reasoning which led to denying that Rivers was injured. Defendants argued that medical records point to a pre-existing condition and presented the testimony of Ezernack that Rivers was not injured in the accident. Again, we note that a pre-existing condition does not bar a claimant’s recovery. We find no manifest error in the WCJ’s determination that Defendants are subject to penalties and attorney’s fees.

Defendants finally contend that the award of penalties in this case exceeds the maximum allowed by statute. The total penalties awarded in this case exceeded $11,000.00. However, the penalties were made under two separate provisions.

Louisiana Revised Statutes 23:1201(F) provides, in pertinent part:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars.

Louisiana Revised Statutes 23:1201(G) provides:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

The penalty in the amount of $3,000.00 for the arbitrary and capricious failure to timely and properly pay the May 20, 2008 judgment together with legal interest on the penalty from the date of judgment until paid was made under La. R.S. 23:1201(G) while the remaining penalties were made under La. R.S. 23:1201(F). Subsection F does not limit penalties under all subsections of La. R.S. 23:1201 to an aggregate of $8,000.00. Broussard v. Lafayette Parish Sch. Bd., 939 So.2d 662 (La.App. 3 Cir. 9/27/06), writ denied, 06-2591 (La.1/12/07), 948 So.2d 152. Therefore, the total amount of penalties awarded under La. R.S. 23:1201(F) does not exceed $8,000.00, and we find no merit in this assignment of error by Defendants.

|7Rivers alleges that the WCJ erred in failing to order Defendants to pay $1,114.73 for the unpaid charges of Dr. Miller as well as a $2,000.00 statutory penalty and attorney’s fees for Defendant’s failure to pay said charges. Although, Rivers answered the appeal seeking additional statutory penalties and attorney’s fees for work done on appeal, he did not appeal the issue of the WCJ’s failure to order Defendants to pay Dr. Miller’s unpaid charges. We find that the eonelusory statement in the answer to appeal that Rivers “seeks additional statutory penalties” is not sufficient to preserve the issue of non-payment of Dr. Miller’s fees for appeal. We do not have the benefit of written reasons for judgment, but we note that counsel for Rivers prepared the judgment signed by the WCJ. We do, however, award an additional $5,000.00 in attorney’s fees for work done on appeal.

DECREE

For all of the foregoing reasons, the judgment of the WCJ is affirmed. We further award an additional $5,000.00 in attorney’s fees for work done on appeal. All costs of this appeal are assessed to Defendants-Appellants, Bo Ezernack Hauling Contractor, Inc. and Bridgefield Casualty Insurance Company.

AFFIRMED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Brandon GEORGE.
    No. 09-1003.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Michael Harson, District Attorney — Fifteenth Judicial District, J.N. Prather, Jr., Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Brandon George.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

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

   GENOVESE, Judge.

|,In an amended bill of information, the Defendant, Brandon George, was charged on April 15, 2008, with committing the following offenses: (1) count 1 — aggravated burglary, a violation of La. R.S. 14:60; (2) count 2 — simple battery of a person over the age of 65, a violation of La. R.S. 14:50.1; (3) count 3 — aggravated battery, a violation of La. R.S. 14:34; and (4) count 4 — unauthorized use of a motor vehicle, a violation of La. R.S. 14:68.4.

Pursuant to a plea agreement, the Defendant pled guilty to aggravated burglary, and the remaining charges were dismissed. The State also agreed to a sentencing cap of fifteen years with the sentence to run concurrently with any other sentence he was serving. The Defendant was sentenced on May 21, 2009, to serve fifteen years at hard labor to run concurrently with any other sentence to which he was subject. The Defendant did not file a motion to reconsider sentence.

The Defendant’s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), alleging that the record contains no pre-plea errors to support a reversal of the Defendant’s conviction and sentence in this matter. For the following reasons, we affirm the Defendant’s conviction and sentence and grant his appellate counsel’s motion to withdraw.

FACTS

The following facts were set forth at the Defendant’s guilty plea and sentencing hearings. On November 27, 2007, the Defendant and an accomplice entered an inhabited dwelling belonging to Ms. Laura Durio, an elderly woman, without her authorization. To gain entry in the dwelling, the men threw red pepper in Ms. Durio’s |2eyes. While inside, the victim was knocked down, beaten and kicked, dragged by her hair, and then thrown into a closet where she was locked inside. The victim’s home was then burglarized and her vehicle stolen.

ANDERS ANALYSIS

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, the Defendant’s appellate counsel has filed a brief stating that he has made a conscientious and thorough review of the trial court record and could find no errors for appeal that would support reversal of the Defendant’s conviction or sentence. Thus, the Defendant’s appellate counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdiet were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. The Defendant was properly charged in a bill of information, was present and represented by counsel at all crucial stages of the proceedings, and entered a free Rand voluntary guilty plea after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, the Defendant received a legal sentence in conformity with his plea agreement.

We have found no legal or other issues which would support an assignment of error on appeal. Therefore, the Defendant’s conviction and sentence are affirmed, and counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

ORDER

11 Alter consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to withdraw is granted.

      . Louisiana Revised Statutes 14:50.1 was repealed by Louisiana Acts, No. 220, § 13, effective June 14, 2008.


author: AMY, Judge.

text:
    Robert DUNCAN, et al. v. MORENO ENERGY, INC., et al.
    No. 09-1033.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Edward P. Landry, Landry, Watkins, Repaske & Breaux, New Iberia, LA, for Plaintiff/Appellant, Robert Duncan.
    Mark J. Mansfield, Tranchina & Mansfield, LLC, Covington, LA, for Plain-tifl/Appellant, Charlie Hodges.
    Bernard E. Boudreaux, Jr., Claude Fav-rot Reynaud, Jr., Carroll Devillier, Jr., Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendants/Appellees, Michael B. Moreno, Moreno Energy, Inc., Carolyn Blanchard.
    David M. Thorguson, Lippman, Mahfouz, Tranchina & Thorguson, L.L.C., Morgan City, LA, for Defendants/Appel-lees, Carolyn Blanchard, Michael B. Moreno.
    Randy P. Angelle, Bernard & Angelle, Lafayette, LA, for Defendants/Appellees, Wayne May, Robert N. Crown, Emile Du-mesnil, William Rucks, IV, William Rucks, III, Charles Kilgore, Ray Flores.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   AMY, Judge.

|1Two minority shareholders sought damages from the defendant corporation and two of its directors, among others, related to their ouster from a predecessor corporation. The trial court granted the defendants’ partial motion for summary judgment, determining that, to the extent the plaintiffs could prove damages to the value of their stock in the predecessor corporation, their pecuniary damages would be limited to the difference between the amount they were paid for their stock and the value of the stock on the day before the short-form merger. The plaintiffs appeal, alleging that any damages should account for the difference between the amount they were paid and the value of the stock of the defendant corporation on the date of trial. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, Robert Duncan and Charlie Hodges, were minority shareholders in Moreno Energy Services, Inc. (MES) and, collectively, owned less than ten percent of its outstanding stock. In July 2005, MES merged with newly incorporated Moreno Energy Incorporated (MEI), pursuant to the short-form merger mechanism of La. R.S. 12:112(G). Thereafter, the plaintiffs were excluded from shareholder status in MEI and were compensated for their MES stock.

The plaintiffs filed this matter, contesting the merger and, as specifically relevant to this case, the value of the compensation paid for the MES shares at the time of the merger. The plaintiffs named various officers, directors, and shareholders of MES as defendants, alleging that the individuals committed fraud and breached certain fiduciary duties related to the merger. They further contended that the merger deprived them of rights acquired under a shareholder’s agreement. The plaintiffs

also [anamed MEI as a defendant. The plaintiffs sought rescission of the short-form merger and asserted that they were owed damages, including lost profits.

MEI and two of the defendants, Michel B. Moreno and Carolyn Blanchard, filed an initial motion for partial summary judgment regarding the validity of the short-form merger. The trial court granted the partial summary judgment in favor of the defendants. On appeal, a panel of this court affirmed the granting of the summary judgment, finding that “Defendants presented all the necessary evidence that there is no genuine issue of material fact that the short-form merger between MES and MEI was valid under La. R.S. 12:112(G).” Duncan v. Moreno Energy, Inc., 08-786, p. 12 (La.App. 3 Cir. 12/23/08), 1 So.3d 778, 787, unit denied, 09-470 (La.4/17/09), 6 So.3d 793. The panel observed that the plaintiffs failed to timely challenge the merger pursuant to La. R.S. 12:131.

|,tPrior to the December 2008 decision in Moreno, 1 So.3d 778, MEI, Mr. Moreno, and Ms. Blanchard (hereinafter “the defendants”) filed another motion for partial summary judgment. They sought a ruling that if the plaintiffs prevailed on their claim, the valuation of the plaintiffs’ damages for the alleged loss of value of their stock would be the difference between the amount that they were paid for their stock and the value of the stock on the day before the merger. The plaintiffs contended, instead, that valuation would be the difference between the amount they were paid for their stock and the value of the stock on the trial date. They referred to this value as rescissory damages. The trial court granted the partial summary judgment and declared it final. The resulting March 2009 judgment provided:

Movers’ motion for partial summary judgment is GRANTED, specifically meaning that plaintiffs’ damages, if any, for alleged loss of value of their stock in Moreno Energy Services, Inc. will be determined as of the day before the merger of Moreno Energy Services, Inc. and Moreno Energy, Inc.

|fiThe plaintiffs appeal, contesting the partial summary judgment and assigning the following as error:

1. Louisiana law affords claimants asserting personal actions the right to rescission or rescissory damages (lost profits and business opportunities) for claims of fraud based in contract or tort; therefore, it was error for the trial court to limit plaintiffs’ damages on their claims to the value of Moreno Energy Services, Inc. stock on the day before the merger took effect.

(Footnote omitted.)

Discussion

Res Judicata

The plaintiffs first contend that the partial motion for summary judgment could not be entered as a matter of res judicata. They assert that the trial judge originally assigned to this case previously determined that they would be entitled to damages based on valuation of the stocks after the merger upon a showing of fraud and breach of fiduciary duties. They contend that this determination was evidenced by a February ruling which allowed discovery of evidence related to MEI’s transactions three months after the merger. They also point to an excerpt from a hearing at which the limit on discovery was discussed.

First, the February 2008 judgment permitted discovery of MEI records “three months prior to and after the merger[.].” It did not reflect an affirmative determination as to the type of damages the plaintiffs would be able to recover upon ^demonstration of their claims. Rather, it reflected the preliminary nature of the case. The trial court specifically referenced the early stage of the case when asked to clarify this limit on discovery at a March 2008 hearing after the defendants raised the burdensome nature of the discovery request. The trial court stated as follows in an exchange with defense counsel regarding the three month “cut-off”:

BY THE COURT:
There is no cut-off. That is the problem. The cut-off was three (3) months. That was my order; but the rest of my ruling was that the other discovery requests were only temporarily denied pending what a Special Master would do.
I apologize if I didn’t state it with clarity and that is the reason why Mr. Landry wanted clarification. But obviously he is claiming recessionary (sic) damages and he needs the other records.
BY MR. REYNAUD:
Then we have the ability to address the original protective order with the Court, or a new protective order with the Court, which is purely a legal issue as these individuals have no right to anything on our shareholders, ... (unintelligible ...) and whether they are even entitled [to] recessionary (sic) damages is a matter of law and needs to be addressed by this Court before discovery is allowed.
BY THE COURT:
Now that was already ...
BY MR. REYNAUD:
... didn’t file a Motion for Summary Judgment on that yet, Judge, and we don’t believe that they are entitled to anything beyond the date of the merger. I’d like to address those ...
BY THE COURT:
That is not before me today, so I can’t issue a ruling. But I can tell you what my ruling is going to be: Get a Special Master and furnish all the records. Let’s get on with this case. There is no Motion for Summary Judgment on Recessionary (sic) damages that is going to fly as far as I can tell at this juncture. You are wasting your time and mine by filing it.
This man is claiming that he was cheated out of almost $2 million by your client, Mr. Moreno, because of a series of actions that he took and that the subsequent corporation has benefitted, so he should get | ^recessionary (sic) damages. I am going to give him his day in court on that.
BY MR. REYNAUD:
Okay. Well, until we brief them all for you, Your Honor, just please reserve judgment and give us a shot at that. BY THE COURT:
You have already had several shots at that.
BY MR. REYNAUD:
Your Honor, are (sic) not briefing the issue of recessionary (sic) damages at all.
BY THE COURT:
Well, I thought it was part of the original briefs ...
BY MR. LANDRY:
Yes, it was.
BY THE COURT:
I don’t know. I didn’t go through everything line-by-line; but I can tell you that it is going to be very difficult to get a Partial Summary Judgment on Recessionary (sic) Damages when you haven’t even responded to full discovery yet. Summary Judgments usually aren’t granted until after full discovery.
BY MR. REYNAUD:
And then we have to determine the issue of liability, or the possibility of liability, before there is an overburden-some effort to into (sic) a corporation ....
BY THE COURT:
I am not trying to argue with you. I am just trying to tell you that, in my view, once they have made a claim and it is supported by factual allegations, the only way we can tell is to get all the records.
BY MR. REYNAUD:
The issue was not before the Court today and we’d just like an opportunity to brief it.
BY THE COURT:
Yes, sir.

(Emphasis added.) Reference to the transcript indicates that the trial court specifically did not rule on the availability of rescissory damages. Instead, the | ^colloquy reflects a reluctance to consider summary judgment on the issue until further discovery was completed. Neither does the record include a judgment evidencing a determination as to the type of damages available.

This assignment lacks merits.

Valuation

The plaintiffs further contest the trial court’s determination that their damages for alleged loss of value to their MES stock, if any, “will be determined as of the day before the mergerf.]” Due to their allegation that MEI carried forward the operation of MES, they argue that they should be allowed to show “the value of MES stock as the business carried forward and its stock value increased or decreased up to the eve of trial.” The plaintiffs contend that damages available under La. Civ.Code arts. 2315, 1995, and 1997 permit valuation of the stock in this manner.

The trial court considered the issue of valuation upon the defendants’ motion for partial summary judgment. Louisiana Code of Civil Procedure Article 966(B) provides that the trial court shall grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” On review, appellate courts conduct a de novo review of the summary judgment under the same criteria as the trial court. Cutsinger v. Redfern, 08-2607 (La.5/22/09), 12 So.3d 945.

Having reviewed the record, we find no error in the trial court’s resolution of the pure question of law placed before it. Louisiana Revised Statutes 12:131 provides a remedy for dissenting shareholders to contest the value provided for shares at issue following a merger pursuant to La. R.S. 12:112(G). As explained in Moreno, |al So.3d 778, however, the plaintiffs failed to avail themselves of that remedy, and the time for that remedy has expired.

Yet, as recognized by the trial court, proof of the fraud and breach of fiduciary duty claims would provide the plaintiffs with an independent avenue of recovery and, essentially, revive the plaintiffs claim for loss of value of their stock. However, the plaintiffs can point to no theory of law setting the valuation of those profits at the time of trial. Rather, this valuation would require significant speculation as it would value a stock never owned by the plaintiffs, i.e., MEI, and it would value that stock years after the plaintiffs’ ouster and years after the purported fraud. It would require measurement of lost profits on corporate shares that ceased to exist at the time of the merger.

The metric designated by law to determine valuation is found in La. R.S. 12:131, which initially permits a dissenting shareholder to timely demand the cash value of his shares as of the day before the certificate of merger was filed with the secretary of state and to state the value demanded. See La. R.S. 12:181(0(2). If the corporation rejects the value demanded, the shareholder may:

[Wjithin sixty days after receipt of notice in writing of the corporation’s disagreement, but not thereafter, may file suit against the corporation, or the merged or consolidated corporation ... praying the court to fix and decree the fair cash value of the dissatisfied shareholder’s shares as of the day before such corporate action complained of was taken [.]

La. R.S. 12:131(E). (Emphasis added.) Only upon a showing of an independent basis for recovery would dissenting shareholders be able to recover at all if they failed to avail themselves of the remedies of La. R.S. 12:131(C) and (E). As stated by the trial court in oral reasons for ruling in this matter and as recognized in Yuspeh v. Koch, 02-698 (La.App. 5 Cir. 2/25/03), 840 So.2d 41, writ denied, 03-1134 (La.6/27/03), 847 So.2d 1277, writ denied, 03-1144 (La.6/27/03), 847 So.2d 1279, even if the appraisal provided for by La. R.S. 12:131 is unavailable due to the aggrieved shareholder’s failure to timely object to the value provided for the shares, that shareholder would get a “second bite of the apple” if he or she proved fraud. However, availability of a remedy does not suggest that recovery would necessarily differ.

As the plaintiffs’ claim pertains to tort, La.Civ.Code art. 2315 provides:

Art. 2315. Liability for acts causing damages
A. Every act whatever of man that causes damage to another obliges him by his fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person. Damages do not include costs for future medical treatment, services, surveillance, or procedures of any kind unless such treatment, services, surveillance, or procedures are directly related to a manifest physical or mental injury or disease. Damages shall include any sales taxes paid by the owner on the repair or replacement of the property damaged.

As for the plaintiffs’ conventional obligation claim, La.Civ.Code arts. 1995 and 1997 provide:

Art. 1995. Measure of damages
Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.
Art. 1997. Obligor in bad faith An obligor in bad faith is liable for all the damages, foreseeable or not, that are a direct consequence of his failure to perform.

Although the damages available under Article 1997 are expansive, the article requires that damages be a direct consequence of the complained of conduct. In light of the validity of the merger, there is no indication that valuation would include considerations beyond the scope of the appraisal envisioned by La. R.S. 12:131. See, e.g., Yuspeh, 840 So.2d 41.

11 throughout these proceedings, reference was made to the term of rescis-sory damages and the question of whether these damages are available in this state. Delaware jurisprudence refers to this type of damages in cases involving fraud in the transfer of stock, yet the parties point to no jurisprudence indicating that an aggrieved shareholder’s valuation would include valuation of stock of the surviving corporation in which the ousted shareholder never held an interest. Instead, the jurisprudence indicates that the equitable relief of rescissory damages may be available “to restore a plaintiff to the position occupied before the defendant’s wrongful acts[.]” Schultz v. Ginsburg, 965 A.2d 661, 669 (Del.2009), quoting Black’s Law Dictionary (8th ed.2004). Although we decline to comment upon the availability of the foreign concept of rescissory damages in this state, we note that, in this case, because the alleged wrongful acts are fraud and breach of fiduciary duties related to the merger, those actions, if any were present, necessarily ceased to exist at the time of the merger.

For these reasons, we find no legal basis for the plaintiffs’ assertion that the valuation of any damages owed to them would include valuation of MEI stock at the date of the trial. Rather, the trial court appropriately recognized that the valuation of the stocks would be calculated in reference to the date before the merger.

This assignment lacks merit.

DECREE

For the foregoing reasons, the partial summary judgment entered by the trial court is affirmed. All costs of this proceeding are assessed to the appellants, Robert Duncan and Charlie Hodges.

AFFIRMED.

      . The record indicates that Mr. Moreno and Ms. Blanchard were directors of MEI.

      . In pertinent part, La. R.S. 12:131 provides:
      A. Except as provided in subsection B of this section, if a corporation has, by vote of its shareholders, authorized a sale, lease or exchange of all of its assets, or has, by vote of its shareholders, become a party to a merger or consolidation, then, unless such authorization or action shall have been given or approved by at least eighty per cent of the total voting power, a shareholder who voted against such corporate action shall have the right to dissent. If a corporation has become a party to a merger pursuant to R.S. 12:112(G), the shareholders of any subsidiaries party to the merger shall have the right to dissent without regard to the proportion of the voting power which approved the merger and despite the fact that the merger was not approved by vote of the shareholders of any of the corporations involved.
      C. (l)(a) Except as provided in Paragraph (4) of this Subsection, any shareholder electing to exercise such right of dissent shall file with the corporation, prior to or at the meeting of shareholders at which such proposed corporate action is submitted to a vote, a written objection to such proposed corporate action, and shall vote his shares against such action. If such proposed corporate action be taken by the required vote, but by less than eighty percent of the total voting power, and the merger, consolidation or sale, lease or exchange of assets authorized thereby be effected, the corporation shall promptly thereafter give written notice thereof to each shareholder who filed such written objection to, and voted his shares against, such action, at such shareholder's last address on the corporation's records.
      (b) An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

        (2) Each such shareholder may, within twenty days after the mailing of such notice to him, but not thereafter, file with the corporation a demand in writing for the fair cash value of his shares as of the day before such vote was taken; provided that he state in such demand the value demanded, and a post office address to which the reply of the corporation may be sent, and at the same time deposit in escrow in a chartered bank or trust company located in the parish of the registered office of the corporation, the certificates representing his shares, duly endorsed and transferred to the corporation upon the sole condition that said certificates shall be delivered to the corporation upon payment of the value of the shares determined in accordance with the provisions of this Section. With his demand the shareholder shall deliver to die corporation, the written acknowledgment of such bank or trust company that it so holds his certificates of stock.
      (3) Unless die objection, demand, and acknowledgment are made and delivered by the shareholder within the period limited in Paragraph (1) and (2), he shall conclusively be presumed to have acquiesced in the corporate action proposed or taken.
      (4) In the case of a merger pursuant to R.S. 12:112(G), the dissenting shareholder need not file an objection witii the corporation nor vote against the merger, but need only file with the corporation within twenty days after a copy of the merger certificate was mailed to him, a demand in writing for the cash value of his shares as of the day before the certificate was filed with the secretary of state, state in such demand the value demanded and a post office address to which the corporation’s reply may be sent, deposit the certificates representing his shares in escrow as provided in Paragraph (2), and deliver to the corporation with his demand the acknowledgment of the escrow bank or trust company as prescribed in Paragraph (2).
      D. If the corporation does not agree to the value so slated and demanded, or does not agree that a payment is due, it shall, within twenty days after receipt of such demand and acknowledgment, notify in writing the shareholder, at the designated post office address, of its disagreement, and shall state in such notice the value it will agree to pay if any payment should be held to be due; otherwise it shall be liable for, and shall pay to the dissatisfied shareholder, the value demanded by him for his shares.
      E. In case of disagreement as to such fair cash value, or as to whether any payment is due, after compliance by the parties with the provisions of subsections C and D of this section, the dissatisfied shareholder, within sixty days after receipt of notice in writing of the corporation’s disagreement, but not thereafter, may file suit against the corporation, or the merged or consolidated corporation, as the case may be, in the district court of the parish in which tire corporation or the merged or consolidated corporation, as the case may be, has its registered office, praying the court to fix and decree the fair cash value of the dissatisfied shareholder's shares as of the day before such corporate action complained of was taken, and the court shall, on such evidence as may be adduced in relation thereto, determine summarily whether any payment is due, and, if so, such cash value, and render judgment accordingly. Any shareholder entitled to fde such suit may, within such sixty-day period but not thereafter, intervene as a plaintiff in such suit filed by another shareholder, and recover therein judgment against the corporation for the fair cash value of his shares. No order or decree shall be made by the court staying the proposed corporate action, and any such corporate action may be carried to completion notwithstanding any such suit. Failure of the shareholder to bring suit, or to intervene in such a suit, within sixty days after receipt of notice of disagreement by the corporation shall conclusively bind the shareholder (1) by the corporation's statement that no payment is due, or (2) if the corporation does not contend that no payment is due, to accept the value of his shares as fixed by the corporation in its notice of disagreement.

      . Black’s Law Dictionary 273, (abr. 6th ed. 1991), provides:
      Such damages contemplate a return of the injured party to the position he occupied before he was induced by wrongful conduct to enter into the transaction. When return of the specific property, right, etc. is not possible (e.g. in a stock fraud transaction, the stock is no longer available), the rescis-sory damages would be the monetary equivalent (e.g. value of stock).

      . In reasons for judgment, the trial court explained:
      Regardless of whether the damages are called "rescissory” or not is immaterial. The material question is which date is used in valuing the stock. In Yuspeh v. Koch, 840 So.2d 41, 02-698 (La.App. 5 Cir. 2/25/03) the Court decided that on a claim for fraud and breach of fiduciary duty in the execution of a short form merger the aggrieved party is entitled to recover the difference between the amount that they were paid for their stock and the value of the stock on the day before the merger as pecuniary damages.
      Defendants’ motions for summary judgment are granted, limiting plaintiffs’ pecuniary damages on its fraud, breach of contract and breach of fiduciary duty claims to the difference between the amount that they received for their slock and the value of the stock, to which they were entitled, on the day before the merger.

      . The matter now before the court was decided by Judge Paul J. deMahy, following a sua sponte order of recusal by the original trial judge in June 2008.


author: SAUNDERS, Judge.

text:
    Midori BHATI v. Deo BHATI.
    No. 09-1030.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Michael Hathorn Davis, Attorney at Law, Alexandria, LA, for Plaintiff/Appellant: Midori Bhati.
    Todd Lee Farrar, Attorney at Law, Pineville, LA, for Defendant/Appellee: Deo Bhati.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

_jjThis matter arises from a divorce and subsequent partition of property. The couple married on October 7, 1973. The wife filed for divorce on July 26, 2001.

After the divorce was granted, and the property of the parties allocated, the wife filed an appeal with this court that resulted in a vacated judgment. This court then remanded that case on the issue of final spousal support and ordered the trial court to reach a complete allocation of assets between the parties.

On remand, the trial court completely allocated the assets and ordered that the husband pay the wife $1,000.00 in final spousal support. The wife has appealed the judgment of the trial court, alleging four assignments of error. We find no error by the trial court and affirm.

FACTS AND PROCEDURAL HISTORY:

On October 7, 1973, Deo Bhati (Deo) was married to Midori Bhati (Midori) in Japan. The couple established their domicile in the United States in May 1974. The couple had three children, who are all currently majors.

Midori never worked outside the home for the duration of the marriage. At the termination of the marriage, Midori had no marketable job skills, but obtained a job at a minimal wage. After realizing that she needed a marketable job skill, Midori enrolled in the LSUA nursing school and received her associate nursing degree in February 2004.

Deo worked as a physician in private practice, in the United States Military, and for the Veteran’s Administration. During his work life Deo accumulated a thrift savings account, an individual retirement account, a military retirement, a Federal Employee Retirement System (FERS) retirement, and a social security retirement. Since the divorce, Deo has retired from being a physician.

12In March 1990, Deo’s civil service retirement was involuntarily transferred into a FERS account. At that time, the civil service retirement was deficient by a total of $689.00. Using community funds, Deo payed the $689.00 to the FERS account. This payment eventually benefitted both parties, as the one-time payment increased the monthly retirement payment by $376.00.

During the marriage, Deo received some gold jewelry from his father that he claimed were family heirlooms. Deo asserted that the jewelry, while it was female jewelry, was traditional Indian jewelry that the wife of his male family members wore for traditional Indian functions. Mi-dori asserted that the jewelry was given to her as a gift from Deo, in lieu of an engagement ring.

The couple was married for twenty-eight years when Midori filed for divorce on July 26, 2001. A judgment was signed on June 17, 2001, terminating the community property regime as of the filing date.

On October 4, 2001, a judgment on incidental matters was signed. This judgment, inter alia, ordered Deo to pay Mido-ri $3,500.00 in interim spousal support. Deo filed a motion for a new trial that was heard on October 22, 2001. On April 18, 2002, the court signed a judgment allocating to each party one half of the individual retirement account. On June 21, 2002, the initial trial couit issued another order to clarify issues not relevant to this appeal.

On September 3, 2002, Deo filed a petition for community property partition, with a sworn, detailed, descriptive list. Midori answered the petition and filed her own detailed, descriptive list. Deo then filed a traversal of the detailed, descriptive list and a first amending sworn, detailed, descriptive list on December 6, 2002.

Midori filed a rule for permanent spousal support on March 27, 2003. Trial |swas held on December 2, 2003, and a judgment was signed on February 18, 2004, denying final spousal support to Midori and dispersing the assets of the couple, including awarding each party one half of Deo’s thrift savings account. Of note was that the gold jewelry was found to be the separate property of Deo. Midori filed a motion for new trial that was denied. Midori then filed an appeal to this court on June 11, 2004. In an unpublished opinion, this court vacated the judgment of the initial trial court and remanded the case for further proceedings. On remand, the matter was assigned to a different trial court, and a trial on the merits was conducted on May 15, 2007.

The results of the second trial court’s judgment that are relevant to this appeal are as follows: Midori was denied additional community assets to compensate her for the social security benefits that federal law prevents her from receiving; Midori was denied a greater share of Deo’s FERS account that she alleged she was entitled to receive due to his one-time payment of $689.00 of community funds; Midori was awarded $1,000.00 in final spousal support retroactive to the date of divorce; and the gold jewelry at issue was found to be the separate property of Deo. Midori filed a motion for a new trial that was denied, then filed this appeal now before us, alleging four assignments of error.

ASSIGNMENTS OF ERROR:

1. The trial court erred in failing to award Midori additional community assets to compensate her for the social security benefits of Deo, for which she was not eligible to receive due to federal law.

2. The trial court erred in failing to find that Midori was entitled to a greater share of the FERS Retirement of Deo due to payment made during the community, with community funds, in order to fully transfer Deo’s Civil Service Retirement to the FERS.

3. The trial court erred in awarding Mi-dori an insufficient amount of final spousal 14support.

4. The trial court erred in finding that the gold jewelry was the separate property of Deo.

ASSIGNMENT OF ERROR NUMBER ONE:

In her first assignment of error, Midori contends that the trial court erred in failing to award her additional community assets to compensate her for the social security benefits of Deo, for which she was not eligible to receive due to federal law. This contention is without merit.

Louisiana Revised Statutes 9:2801.1 (emphasis added) states:

When federal law or the provisions of a statutory pension or retirement plan, state or federal, preempt or preclude community classification of property that would have been classified as community property under the principles of the Civil Code, the spouse of the person entitled to such property shall be allocated or assigned the ownership of community property equal in value to such property prior to the division of the rest of the community property. Nevertheless, if such property consists of a spouse’s right to receive social security benefits or the benefits themselves, then the court in its discretion may allocate or assign other community property equal in value to the other spouse.

Under the clear language of La. R.S. 9:2801.1, a trial court is granted discretion to choose whether to award a spouse additional community assets as compensation for the right to receive social security benefits, or the benefits themselves, of the other spouse when those benefits would otherwise be classified as community property but for federal preemption. Thus, an appellate court, when reviewing a judgment reached under La. R.S. 9:2801.1, will apply the abuse of discretion standard of review. Comeaux v. Comeaux, 08-1330 (La.App. 3 Cir. 4/1/09), 7 So.3d 110.

Midori argues that the peculiar facts and circumstances of this case are such that this court should find that the trial court abused its discretion. We do not agree. After reviewing the record, we find no abuse of discretion by the trial court. In the I.-,trial court’s extensive reasons for ruling, it indicated that the choice to not compensate Midori for Deo’s social security benefits was made in light of its award to Midori’s for final periodic support of $1,000.00 per month. Further, the record indicates that the couple’s three children are all majors, and have been so since 2001, that Deo has contributed to their higher education, and that Midori has made herself employable by attaining a nursing degree in February 2004. Moreover, the trial court’s distribution of assets indicates that Midori has received a substantial monetary award via disbursements of Deo’s other retirement accounts, and Midori has received one-half of Deo’s retirement benefits, other than his social security benefits, and will continue to receive those benefits in the future. Accordingly, we affirm the trial court’s judgment regarding its discretionary decision based on La. R.S. 9:2801.1.

ASSIGNMENT OF ERROR NUMBER TWO:

Midori’s second assignment of error is that the trial court erred in failing to find that Midori was entitled to a greater share of the FERS account of Deo due to payment made during the community, with community funds, in order to fully transfer Deo’s Civil Service Retirement into a FERS account. We find no credence in this assignment.

It is well settled that findings of fact are subject to the manifest error, clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court’s determination of whether property is community or separate is a finding of fact. Young v. Young, 06-77 (La.App. 3 Cir. 5/31/06), 931 So.2d 541.

We find a reasonable basis for the trial court’s ruling regarding Deo’s FERS account. The parties stipulated that Deo’s Veteran’s Administration retirement plan was involuntarily transferred into a FERS account and deemed deficient in the | f,amount of $689.00. They also agreed that Deo paid that one-time amount on March 8, 1990, during the existence of the community regime, in order for the community to receive an additional $376.00 per month thereafter.

There was a dispute as to the correct percentage of community classification of Deo’s FERS account. Midori calculated the community portion of the FERS account at 77.79%, while Deo calculated it to be 76.9%. After trial, both parties used Midori’s calculation, as did the trial court. Using that calculation, the trial court then awarded Midori one-half of 77.79%, equal to 38.89%, of the disbursements already made to Deo, and that same percentage in all future disbursements from the FERS account. We find no error in this judgment.

Midori argues that this situation is “similar in principle” to this court’s cases of Lodrigue v. Lodrigue, 01-1630 (La.App. 3 Cir. 5/8/02), 817 So.2d 466, writ denied, 02-1604 (La.10/4/02), 826 So.2d 1124 and Tarver v. Tarver, 05-367 (La.App. 3 Cir. 11/2/05), 916 So.2d 1222. Midori is correct. In both cases, the parties purchased additional years of service in the respective retirements with community funds, and this court ruled that the purchased years of retirement inured to the benefit of the community of acquets and gains. This is exactly what the trial court did in this case.

The trial court divided Deo’s FERS account based upon Midori’s suggested percentage over that of Deo. The trial court denied Midori’s request for one-half value of the additional $376.00 per month reasoning that Deo’s one-time payment into the FERS account benefitted both parties. This is accurate, as due to a single payment of $689.00 made with community funds, Midori will receive slightly above $146.00 additionally per month. As such, we find a reasonable basis for the trial |7court’s denial of Midori’s request to a greater share of Deo’s FERS account.

ASSIGNMENT OF ERROR NUMBER THREE:

Next, Midori contends that the trial court erred in awarding her an insufficient amount of final spousal support. We do not agree.

A trial court’s determination regarding final periodic support is subject to the abuse of discretion standard of review. January v. January, 03-1578 (La.App. 3 Cir. 4/7/04), 876 So.2d 98. Louisiana Civil Code Article 112 states:

A. When a spouse has not been at fault and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article.
B. The court shall consider all relevant factors in determining the amount and duration of final support. Those factors may include:
(1) The income and means of the parties, including the liquidity of such means.
(2) The financial obligations of the parties.
(3) The earning capacity of the parties.
(4) The effect of custody of children upon a party’s earning capacity.
(5) The time necessary for the claimant to acquire appropriate education, training, or employment.
(6) The health and age of the parties.
(7) The duration of the marriage.
(8) The tax consequences to either or both parties.
C. The sum awarded under this Article shall not exceed one-third of the obli-gor’s net income.

In the case before us, the trial court wrote thorough reasons for judgment. The following is an excerpt of those reasons pertaining to its ruling on final periodic | ^support:

The evidence shows Midori will have one half of 77.79 percent of all future payments from the FERS retirement, which means she will receive approximate^ ] $924.53 monthly. She will also receive $898.66 per month from the military retirement plan. Further, since the time of the divorce she has completed an Associate’s Degree in nursing, [passed] her Boards in February 2005 and expects to receive her Master’s Degree in nursing in two years. Despite this income and education, Midori also seeks final spousal support under [La. Civ.Code art.] 112[ ].
The court has considered the [La. Civ. Code art. 112] factors and is concerned about Midori’s age and ability to adapt to the working world. Midori has never worked and is now at least 58 years old. She has educated herself in a profession that works on 12 hour shifts and requires constant walking and standing. Midori tried to work at nursing while attending school but was unable to do so. It may be that she plans to teach, after her education is complete. Considering that the court did not award her any item in lieu of Deo’s Social Security, his assets are substantially greater than hers. [] The court will award the amount of $1,000.00 per month, retroactive to the time of the request for permanent alimony. In the event that Mi-dori actually obtains and keeps a job, Deo can bring an action to terminate the support.

It is clear from these reasons for ruling that the trial court took heed of the factors expressed in La.Civ.Code. art. 112. Further, Midori has been awarded a substantial amount from Deo’s retirement accounts, and will continue to receive her fair portion of those accounts. In addition, Deo testified that he is retired, while counsel for Midori stated that she now has her master’s degree in nursing. As such, we find no abuse of discretion by the trial court, and affirm its judgment

ASSIGNMENT OF ERROR NUMBER FOUR:

In her final assignment of error, Midori claims that the trial court erred in finding that the gold jewelry was the separate property of Deo. We find that this claim is without merit.

As stated in Assignment of Error Number Two, the classification of property j3as separate versus community is a finding of fact subject to the manifest error standard of review. See Young, 931 So.2d 541.

Midori cites three cases in brief relating to Deo’s burden of proof at the trial level, namely Salley v. Salley, 95-387 (La.10/16/95), 661 So.2d 437, Ramsey v. Ramsey, 96-481 (La.App. 3 Cir. 10/9/96), 682 So.2d 797, and Morris v. Morris, 96-788 (La.App. 3 Cir. 12/26/97), 685 So.2d 673, writ denied, 97-237 (La.3/14/97), 690 So.2d 40. Midori cites these cases for the proposition that the trial court did not apply the correct burden of proof necessary for Deo to prove that the gold jewelry was his separate property, i.e., “a burden greater than preponderance of evidence and somewhat less than reasonable doubt.” This is inaccurate.

Our Louisiana Supreme Court, in Talbot v. Talbot, 00-814, p. 12 (La.12/12/03), 864 So.2d 590, 600, found that these cases were superseded by statute, and stated the following:

As a matter of public policy and in the interest of fairness, we find that the community presumption contained in [La.Civ.Code art.] 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community.

Therefore, Midori’s argument in brief regarding trial court error as to the burden of proof is without merit. However, given that Midori’s actual assignment is a general claim that the trial court erred in classification of the jewelry, we will conduct a manifest error review to determine whether the trial court’s judgment to find that Deo proved by a preponderance of the evidence that the jewelry was his separate property has a reasonable basis.

The only evidence in the record regarding the gold jewelry is the testimony of the parties. An excerpt from Deo’s testimony follows:

Q There had [sic] been some talk about some jewelry. Can you tell |1flus about the jewelry?
A The jewelry is in my family for a long time. My — as far as I know[,] my grandmother or great-grandmother. And it came from — from grandfather to gave — his wife wore it because it’s a female jewelry. And she wore it and when my father got married my grandfather gave to my father and so that his mother can wear it. And when my mother died [] — there are much more jewelry then but my sister and other relative took their thing. But the necklace, it was an heirloom so that gave to me to keep it in the family from male to male to male.
Q Okay. So you — you deny that you ever gave this as a gift to Ms. Bhati.
A There no reason for me to give a gift. She can wear it because female jewelry but this lady never wore even a single time while this jewelry because she doesn’t think it’s proper to wear Indian jewelry. She never wore it. She never in the function. And if she think that I’m telling something wrong she can show me the picture where she wore it. And she never liked it.
Q Okay. So you’re asking this Court to recognize that as separate property?
A It’s my family heirloom.

Midori testified otherwise, attesting that the jewelry was a gift to her because she had no engagement ring. Further, according to Midori, only she knew the combination to the safe where it was kept. The trial court chose to believe Deo’s testimony, as it stated in its written reasons for judgment, “[t]he court believes that the description of the jewelry and the purpose itself relates to Deo’s Indian culture.”

Given the above, we must adhere to the following axioms as stated by our supreme court in Rosell, 549 So.2d 840(ci-tations omitted):

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or | n implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

There is no objective evidence in the record that contradicted Deo’s testimony, nor is his testimony facially implausible or internally inconsistent. As such, we find that Deo’s testimony provided the trial court with a reasonable basis to find that the jewelry was Deo’s separate property. Accordingly, we affirm the trial court’s judgment on this issue.

CONCLUSION:

Midori raised four assignments of error. We found no merit in any of those assignments. Therefore, we affirm the trial court’s judgment, in full, and assess all costs of this appeal to Midori.

AFFIRMED.


text:
    John Terrell FRUGE v. ONOB, INC., d/b/a Century 21 Mike D. Bono & Company.
    No. 09-1028.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Joseph A. Delafield, Lake Charles, LA, for Plaintiff/Appellee, John Terrell Fruge.
    Patricia B. McMurray, Renee C. Crasto, Adams and Reese, LLP, Baton Rouge, LA, for Amicus Curiae, Louisiana Realtors.
    Scott David Johnson, Louisiana Realtors, Baton Rouge, LA, for Amicus Curiae, Louisiana Realtors.

      Timothy O’Dowd, Lake Charles, LA, for Defendant/Appellant, ONOB, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   AMY, Judge.

[,The defendant broker company appeals the trial court’s judgment granting the plaintiffs motion for summary judgment. The defendant asserts that the trial court erred in finding that it owed a duty to the plaintiff, a prospective seller, to place deposit money given by the prospective buyer into its escrow account when the plaintiff and a prospective buyer never executed a purchase agreement. For the following reasons, we reverse and render judgment in favor of the defendant.

Factual and Procedural Background

The plaintiff, John Terrell Fruge (Fruge), hired the defendant, ONOB, Inc. d/b/a Century 21, Mike D. Bono and Company (Bono), to sell a tract of land located in Calcasieu Parish. Negotiations began between Fruge’s listing agent, Betty Sit-tig, and the prospective buyer of the property, Innovative Hospitality Services (IHS), who was represented by Luis De-Castro (DeCastro). DeCastro/IHS’s real estate agent was Debbie Lafleur. Lafleur and Sittig were both real estate agents employed by Bono, and, thus, a dual agency relationship existed.

On July 81, 2006, Lafleur met DeCastro at the Lake Charles Airport and presented him with an agreement to purchase or sell the tract of land for $550,000.00. DeCas-tro initialed and dated the written agreement on every page, however, he did not sign the purchaser’s line. Several days later, DeCastro sent Bono a $10,000.00 deposit check, as called for in the written agreement. According to Ms. Lafleur’s deposition, when she received the deposit check, she reviewed the purchase agreement and realized DeCastro had not signed the purchaser’s line. Bono then placed the check into an office safe. Ms. Lafleur contacted DeCastro and informed him that his signature was not on the purchase agreement, and according to Ms. |2Lafleur’s deposition, DeCastro indicated that “he just wasn’t going to sign it.” Some time later, DeCastro died in a plane crash, and a stop payment order was issued on the $10,000.00 check.

On October 15, 2007, Fruge filed a petition against Bono contending that Bono “owes [him] at least $10,000.00” because “[t]he conditions of the contract were met, however, the $10,000.00 was not turned over to [him].” Fruge stated that “[t]he check was not deposited in an escrow account under Louisiana law.” Bono answered the petition, denying Fruge’s allegations and asserting that “[tjhere was never an agreed upon contract therefore the $10,000.00 was never delivered to plaintiff.”

Bono then filed a motion for summary judgment, alleging that because DeCastro did not sign the purchase agreement, the parties never contracted, and therefore no obligations were due to Fruge. Bono supported his argument by citing La.Civ.Code art. 1839, which provides that “[a] transfer of immovable property must be made by authentic act or by act under private signature.”

Fruge filed a cross motion for summary judgment, alleging that “but for the negligence of the Bono sales agents in failing to secure a single signature and place into their Sales Escrow Account the deposit, the matter would not be pending today.” Fruge also contended that, apart from the absence of DeCastro’s signature, “every requirement for sale of the Fruge property was met.”

After a hearing, the trial court issued a judgment denying Bono’s motion for summary judgment and granting Fruge’s cross motion and awarding him $10,000.00. IsBono now appeals, assigning the following errors:

|4I. The Trial Court committed reversible error finding Bono acted negligently by failing to deposit [IHSJ’s check into its real estate escrow account despite the fact that the unrefuted evidence showed that [IHS] and Fruge never got beyond negotiations, never had an offer and acceptance, did not execute an Agreement to Purchase and Sell, did not enter any real estate transaction, and neither Fruge nor anyone else had any interest in [IHS]’s check.
II. The Trial court committed reversible error assessing damages without any evidence of damages being presented.

Discussion

Summary Judgment

Louisiana Code of Civil Procedure Article 966(B) states that summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” In Boykin v. PPG Industries, Inc., 08-117, p. 4 (La.App. 3 Cir. 6/18/08), 987 So.2d 838, 842, writs denied, 08-1634 and 08-1649 (La.10/31/08) 994 So.2d 537, this court explained the standard of review applicable to motions for summary judgment, stating:

Appellate courts review a trial court’s grant or denial of a motion for summary judgment using the de novo standard of review, under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate in any given case. Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226.

Merits

The defendant asserts that the trial court erred in finding that it owed a duty to place the $10,000.00 into escrow absent a properly executed agreement to purchase or sell and, accordingly, in failing to dismiss the plaintiffs claim. As explained below, we find merit in this argument.

|sWe note that the trial court correctly determined that the parties did not execute a valid agreement to purchase or sell in light of DeCastro’s failure to sign the document. Despite DeCastro’s partial completion of the document, the contract is deficient in vital respects. Namely, it contains no notation in the area of the form indicating it was “accepted as written,” “accepted as amended on addendum,” “accepted as amended or countered,” or “rejected.” Rather, the adjacent boxes remained unfilled. And, as stated, it lacks the “purchaser’s signature.” Louisiana Civil Code Article 1839 provides, in pertinent part, that “[a] transfer of immovable property must be made by authentic act or by act under private signature.” Accordingly, the trial court did not err in determining that the plaintiff failed to demonstrate that he could prove a contract claim at trial.

Duty/Risk

Otherwise, the plaintiff argued he would be able to recover for negligence due to what he contends was the defendant’s responsibility to deposit the check into an escrow account and/or to ensure the completion of the agreement to purchase or sell.

Louisiana Civil Code Article 2315 provides the foundation for negligence claims in Louisiana. This article states, in part, that “[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Negligence claims are examined using a duty/risk analysis, wherein the plaintiff must prove each of the following elements: (1) the defendant’s conduct was cause in fact of the plaintiffs injuries; (2) the defendant had a duty to conform conduct to a specific standard; (3) the defendant breached that duty; (4) the defendant’s conduct was the legal cause of plaintiffs injuries; and (5) plaintiff sustained actual damages. Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606. In order to succeed |fiin a negligence claim, every element of the claim must be established. Johnson v. Gilmore, 99-1300 (La.App. 3 Cir. 4/5/00), 771 So.2d 662, writ denied, 00-1300 (La.6/16/00), 765 So.2d 341.

The plaintiff relies on Chapter 46, Section 2701 of the Louisiana Real Estate Commission’s Rules and Regulations, for the proposition that Bono had a duty to deposit the $10,000.00 into an escrow account. This regulation provides:

A. A resident broker, including corporations, partnerships and limited liability companies, engaged in the sale of real estate on behalf of clients shall open and maintain a sales escrow checking account in a financial institution in the state of Louisiana.... Except as otherwise provided in this Chapter, all funds received by a broker in connection with the sale of real estate shall be deposited in this account.

(Emphasis added).

The plaintiff contends that, because the $10,000.00 check related to a sale, Bono had a duty, under the above regulation, to deposit it into an escrow account. This assertion lacks merit. The regulation refers generally to “funds” and to “the sale of real estate.” Yet, the plaintiff failed to produce evidence indicating that he would be able to demonstrate that there was a contract regarding a sale of real estate. Instead, the parties’ submissions indicate that the parties never proceeded past the point of an incomplete agreement to purchase and sell. Furthermore, the purpose of the $10,000.00 check can only be surmised by reference to the agreement to purchase and sale, that was not executed, as it contains the following provisions:

DEPOSIT: Upon acceptance of this offer, the SELLER and PURCHASER shall be bound by all terms and conditions and PURCHASER becomes obligated to deposit immediately with SELLER’S Agent/Broker the sum of TEN THOUSAND DOLLARS FOR OPTION TO PURCHASE TO BE PAID TO THE SELLER (AND WILL BE NON-REFUNDABLE UNLESS BUYER INSPECTION PROVES HE CANNOT DEVELOP AND BUILD A MINIMUM OF 50, 1500 SQ. FT. HOMES ON SAID PROPERTY, dollars ($10,000.00), by Check to be applied to the sale price and/or closing costs, at Act of Sale. |7Failure to do so shall be considered a breach of this Agreement. The deposit is to be considered earnest money and is to be placed in the listing Broker’s non-interest-bearing escrow account. This deposit is to be placed in any Federally insured Banking or Savings & Loan Association without responsibility on the part of Agent/Broker in cases of failure or suspension of such institution.
OTHER CONDITIONS OF SALE include the following....
2. BUYER TO GIVE SELLER 10,000 CASH OPTION TO PURCHASE UPON ACCEPTANCE. THIS IS NON-REFUNDABLE UNLESS BUYER IS PROHIBITED FROM BUILDING MINIMUM OF 50 HOME (1500 SQ. FT. EACH ON SAID PROPERTY.
—BUYER TO DO ALL INSPECTIONS BY AUGUST 31,2006 —UPON APPROVAL OF THESE INSPECTIONS BY BUYER, SELLER TO BE GIVEN THE $10,000 THAT IS BEING HELD BY CENTURY 21 MIKE D. BONO IN ESCROW.

Again, however, this agreement was not finalized. The plaintiff failed to demonstrate any other basis in negligence on which he would be able to recover. He contends that, but for the agent’s failure to ensure the completion of the agreement to purchase and sell, the check would have been placed into escrow, and he could have pursued his claim through a concursus proceeding. This argument is speculative at best and assumes that DeCastro intended to complete the document. However, the submissions in evidence only that De-Castro did not complete the entirety of the agreement to purchase and sell. His intent to fully execute the agreement cannot be derived from these documents. Rather, according to Ms. Lafleur, DeCastro reported that he was not going to sign the document. Accordingly, we find that the plaintiff did not carry his burden of proving genuine issues of material fact regarding either the existence of a duty or a breach of that duty.

|sFor these reasons, we find that the trial court erred in the granting of the plaintiffs motion for summary judgment and in the denial of the defendant’s motion for summary judgment. We enter judgment accordingly.

DECREE

For the foregoing reasons, the trial court’s judgment granting the plaintiffs motion for summary judgment and denying of the defendant’s motion for summary judgment is reversed. We grant the defendant’s motion for summary judgment, dismissing the plaintiffs petition. All costs of this appeal are assessed to the plaintiff.

REVERSED AND RENDERED.

      . “ 'Dual agency’ means an agency relationship in which a licensee is working with both buyer and seller or both landlord and tenant in the same transaction.” La. R.S. 9:3891.

      . In written reasons for ruling, the trial court explained as follows:
      We do not have a signed contract in this proceeding and thus, as a matter of law, we do not have a contractual basis upon which a sale of the property could be enforced. Both a contract to sell and the later actual transfer must be by authentic act.
      On a negligence basis, however, we have a different question. Debbie Lafleur, the agent of the defendant, did not acquire the buyer’s signature on the offer to purchase on July 31, 2006. This signature is the primary aspect and reason for both the meeting and the preparation of the offer. We do not know why there was not a signature because Ms. Lafleur did not specifically ask him to sign. If she had asked him on that date to sign and he had refused, there would be no offer and Ms. Lafleur could testify to that fact.
      The buyer initialed every page of the offer and even wrote the time of his initials but did not sign. Ms. Lafleur cannot explain why there was no signature.
      The Louisiana Real Estate Commission has adopted Rules and Regulations under La. R.S. 37:1435.
      Chapter 27. Escrow and Trust Accounts Sec. 2701. Resident Broker Requirements.
      "... Except as otherwise provided in this Chapter, all funds received by a broker in connection with the sale of real estate shall be deposited in this account.” (Emphasis supplied)
      The money was not deposited into this account but was merely placed in an office safe until much later a stop payment order was received upon the death of Luis Castro.

      Despite the mandatory language of Sec. 2701 "all” funds were not deposited into the escrow account. Thus the plaintiff was never allowed to negotiate for those funds under Section 2715.A.1. Nor was the plaintiff allowed to pursue those funds in court by a concursus under Section 2715.A.3 and 4.
      This was a dual agent designated agency. A duty is owed to both clients of the agency. By not depositing the check the seller of the property was allowed to pursue those funds. That favored the proposed buyer over the seller.
      The court recognizes that purchasers (and sellers) change their minds all the time. The very essence of the deposit is to show good faith and intent on both parties to be bound. By not depositing the check into the escrow and trust account, it made it too easy for the proposed purchaser to change his mind if he ever intended to be bound in the first place. It is curious that he did not sign the contract but did send in the deposit. Without the money being in escrow there would have possibly been no reason for further negotiation.
      Courts in this state are allowed to use the Rules and Regulations of state agencies as guidelines in a determination of negligence. The Court finds that ONOB, d/b/a Century 21 Mike D. Bono and Company was negligent in this proceeding by not depositing the check in its escrow account. The Motion for Summary Judgment of John Terrell Fruge is granted. The Motion for Summary Judgment of defendant is denied. The sum of Ten Thousand and no/100 ($10,-000.00) Dollars is awarded to John Terrell Fruge together with legal interest from date of demand and all costs.


author: PAINTER, Judge. AMY, J.,

text:
    AGILUS HEALTH (Allison Taylor) v. ACCOR LODGING NORTH AMERICA.
    No. 09-1049.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Michael E. Parker, Lafayette, LA, for Defendants-Appellants, Accor Lodging North America, Liberty Mutual Insurance Company.
    R. Bray Williams, Joseph Payne Williams, Sr., Natchitoches, LA, for Plaintiff-Appellee, Agilus Health, Inc.
    Thomas A. Filo, Michael K. Cox, Lake Charles, LA, for Plaintiff-Appellee, Agilus Health, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| iDefendants, Accor Lodging North America (Accor) and its worker’s compensation insurer, Liberty Mutual Insurance Company (Liberty Mutual), appeal the judgment of the Workers’ Compensation Judge (WCJ) in favor of Plaintiff health care provider, Agilus Health, Inc. (Agilus), for underpayment of medical benefits, statutory penalties, and attorney’s fees. Finding that the underpayment violated the Workers’ Compensation Act, we affirm.

FACTS

Allison Taylor was injured in the course and scope of her employment with Accor. At some point in her treatment, she was referred to Agilus for treatment. When Agilus submitted its bills for treatment of Taylor, the payment amounts were discounted below the amounts provided by the Louisiana Workers’ Compensation Reimbursement Schedule. The discounts were taken pursuant to a Participating Clinic Agreement (PPO agreement) that Agilus entered with First Health Network (First Health), a group purchaser, who in turned contracted with Liberty Mutual for discounted health insurance payments for its members. Agilus filed a disputed claim for compensation asserting underpayment of its bill by Accor. After a hearing, the WCJ found in favor of Agilus. Accor and Liberty Mutual appeal. Agilus answered the appeal asking for additional attorney’s fees on appeal.

DISCUSSION

Validity of the PPO Discount

Accor and Liberty Mutual first assert that the trial court erred in that it nullified the contracts between Agilus and First Health and between First Health and Liberty Mutual. Our review of the record reveals no such action by the trial court. The trial court found that the contracts entered into by the parties did not apply to workers’ ^compensation payments, pursuant to the Worker’s Compensation statute. Further, this court does not purport to consider the validity of any contract concerning non-parties to this suit.

Accor and Liberty Mutual argue in brief that the PPO agreement is not in violation of the Workers’ Compensation Act and the reimbursement schedule because La. R.S. 23:1034.2(E) allows a provider to charge a fee that is less than that established by the reimbursement schedule. Accor and Liberty Mutual, however, ignore the fact that this provision does not allow the employer to pay less than the scheduled amount if the provider charges that amount or more.

La. R.S. 23:1203(B) states that:

The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges for such care, services, treatment, drugs, and supplies, as determined under the reimbursement schedule annually published pursuant to R.S. 23:1034.2 or the actual charge made for the service, whichever is less. Any out-of-state provider is also to be subject to the procedures established under the office of workers’ compensation administration utilization review rules.

Louisiana Revised Statutes 23:1033 provides that: “No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.”

As Judge Peter’s stated in his concurring opinion to this court’s en banc opinion in Beutler England Chiropractic Clinic v. Mermentau Rice, Inc., 05-942 (La.App. 3 Cir. 5/31/06), 931 So.2d 553, 561 (citing his dissenting opinion in Beutler England Clinic v. Market Basket No. 27, 05-952 (La.App. 3 Cir. 12/30/05), 919 So.2d 816, 821):

[T]o the extent that the PPO contract purports to further limit the employer’s liability for medical care, it runs afoul of La. R.S. 23:1033 and may not serve as a basis to reduce the amount owed to Beutler England for the treatment of [the injured employee].

^Accordingly, we find no error in the trial court’s determination that Accor and Liberty Mutual must pay the difference between the amount provided by the reimbursement schedule and the amount it previously paid for the service rendered to Allison Taylor.

Penalties and Attorney’s Fees

The WCJ ordered that Defendants pay $2,000.00 in statutory penalties for underpayment of the bill and $4,000.00 in attorney’s fees. Defendants now assert that the trial court erred in awarding penalties for the underpayment of the bill and in awarding attorney’s fees.

La. R.S. 23:1201(F)(4) provides that: “In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider.” Defendants assert that pursuant to La. R.S. 23:1201(F)(2), because the claim was reasonably controverted, penalties and attorney’s fees are not appropriate. It is true as Defendant argues that “an employer should not be penalized for seeking judicial resolution of close factual issues.” Spell v. Conn Appliances, Inc., 97-309, p. 11 (La. App. 3 Cir. 10/8/97), 702 So.2d 797, 802. Defendants further argue that the claim was reasonably controverted. However, we can find neither a close factual issue nor that the claim was reasonably controverted. Rather, we find a violation of a statutorily mandated payment schedule. Therefore, the WCJ appropriately awarded both penalties and attorney’s fees. Answer to Appeal

Agilus answers Defendants’ appeal seeking additional attorney’s fees for work done on this appeal. After a review of the record and noting the work done on appeal by counsel for Agilus, we find that an additional award of $2,500.00 in attorney’s fees |4is reasonable. We, therefore, award Agilus an additional $2,500.00 in attorney’s fees for successfully defending this appeal.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Defendants are ordered to pay an additional $2,500.00 in attorney’s fees for work done on appeal as well as all costs of appeal.

AFFIRMED.

AMY, J., Dissents and Assigns Written Reasons.

AMY, J.,

dissents and assigns reasons.

[J respectfully dissent from the majority decision as I find that a reversal is required. In my opinion, the claimant in this case confuses an employer’s liability to the employee and an employer’s liability to the health care provider.

Louisiana Revised Statutes 23:1033 provides that:

No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.

(Emphasis added.) In my opinion, there is no question that the employer, through its contractual agreement, has satisfied its liability to the employee for the pertinent medical treatment. Service was rendered and paid for at the contractually agreed upon fee. As set forth below, the First Health Network contract requires the health care provider to “accept the reimbursement amounts specified” in Appendix A of the agreement “as payment in full for Covered Medical Services rendered to Participating Patients.” Appendix A, also excerpted below, includes the reduced fee schedule agreed upon in workers’ compensation cases.

Neither do I find that the employee is somehow obligated to pay the difference between the fee charged and the scheduled reimbursement amount, as the agreement provides that the participating patient, here the employee, would only be liable and billed for services not covered by the pertinent plan and for copayments and/or deductibles. There has been no contention that this workers’ compensation matter | gwould have generated a copayment or deductible.

Additionally, La. R.S. 23:1033 prohibits a limitation on liability “except as herein provided[.]” La. R.S. 23:1034.2 provides that:

E. Nothing in this Section shall prevent a health care provider from charging a fee for such care, services, treatment, drugs, or supplies that is less than the reimbursement established by the reimbursement schedule.

The First Health contract is, in fact, an agreement requiring the health care provider (Agilus) to accept a fee less than that established by the reimbursement schedule and, I believe, is the type of arrangement specified by La. R.S. 23:1034.2.

The record in this case includes The First Health Network Participating Clinic Agreement. The agreement clearly anticipates the inclusion of workers’ compensation services among the type of plans covered. Article 1, Paragraph 1.4 provides that the “Agreement sets forth the understanding, rights and obligations of the parties for the purpose of providing preferred reimbursement rates for medical services for persons covered under various Payor plans.” (Emphasis added.)

Article 2 sets forth the following definitions, relevant to the health care provider’s understanding of its application to workers’ compensation:

2.2 Covered Medical Services
“Covered Medical Services” means those services provided to a Participating Patient for which the Payor is obligated to pay pursuant to the Payor’s Health Benefit Plan or Health Insurance Plan.
2.3 Health Plan
“Health Plan” means any contract, cer-tifícate, policy, plan document or other legally enforceable instrument and amendments thereto issued, sponsored, or administered by a Payor under which a Participating Patient may be entitled to health services or health service benefits. These Health Plans may include, but are not limited to, indemnity plans, health maintenance organizations, insurance group health plans, and workers’ compensation plans.
|s2.7 Payor
“Payor” means an employer, trust fund, insurance carrier, health care service plan, trust, nonprofit hospital service plan, a governmental unit, any other entity which has an obligation to provide medical services or benefits for such services to Participating Patients, or any other entity which has contracted with First Health to use First Health’s Preferred Provider Panel.
2.8 Payor Agreement (or PPO Agreement)
“Payor Agreement” or “PPO Agreement” is an instrument between a Payor and First Health or its authorized representative which provides for Participating Providers to render health care services pursuant to this Agreement to Participating Patients at the reimbursement amounts set forth herein.

Article 4, pertaining to Payment Provisions, also contains specific workers’ compensation provisions and states:

4.2Reimbursement Procedure The rules and procedures for reimbursement under this Agreement are as follows:
a)Pursuant to each Payor’s Payor Agreement with First Health, Payor shall be liable for the lesser of Provider’s billed charges or the amount set forth in Appendix A of this Agreement, less amounts of any co-payments, deductibles, and coordination of benefits, when Covered Medical Services are provided to a Participating Patient.
b) In no case shall reimbursement exceed Provider’s billed charges.
c) If assignment has been made to Provider. Payor shall make payment directly to Provider.
d) Payment shall be made within thirty (30) calendar days of Payor’s receipt of an accurate and complete bill submitted by Provider in accordance with Paragraph 4.1, above.
e) For Workers’ Compensation Payors, reimbursement under this Agreement shall not exceed the amount allowed for Provider’s services under Workers’ Compensation laws and regulations.
f) If Provider practices in multiple locations which are subject to different rates of reimbursement under the terms of separate Agreements with First Health using the same FTIN, the lowest of the different rates of reimbursement shall apply.

| ¿(Emphasis added.) Specifically pertinent to this case, Article 4 also provides:

4.3 Payment in Full
Provider agrees to accept the reimbursement amounts specified in Appendix A as payment in full for Covered Medical Services rendered to Participating Patients. In no case shall reimbursement exceed Provider’s billed charges. Provider further agrees that when Covered Medical Services are provided to a Participating Patient, the Participating Patient shall be liable only for actual copayments and/or deductibles as determined by the Payor in accordance with the Payor’s Health Plan.
4.4 Liability of Participating Patient Provider agrees that the only charges for which a Participating Patient may be liable and be billed by Provider shall be for services not covered by the Payor’s Health Plan and for copayments and deductible amounts required by the Pay- or’s Health Plan. Provider agrees to accept assignment on all claims submitted by or on behalf of Participating Patients.

(Emphasis added.) Appendix A, referenced in Article 4, Paragraph 4.3 sets forth reimbursement schedules and provides as follows with regard to workers’ compensation:

D. Reimbursement from Workers’ Compensation Payors for services rendered to occupationally ill/injured employees shall be as follows:
(1) If any state law or regulation establishes rules or guidelines for the payment of health care services, reimbursement shall not exceed 85% of the maximum amount payable under such rules or guidelines. Any procedure code which is unvalued shall be reimbursed pursuant to Section A, Paragraph (3), of this Appendix. This rate of reimbursement shall apply whether such rules or guidelines are in existence at the time of execution of this agreement or established at a later time.
(2) In the absence of any state law or regulation set forth in Section D, Paragraph (1), reimbursement shall be the method set forth in Section A, Paragraphs (1), (2) and (3) of this Appendix, but in no event shall reimbursement exceed the usual and customary charge for the services as determined by First Health or Pay- or.

According to the testimony of the President of Agilus, the health care provider was aware of the contract’s provision indicating that workers’ compensation would |5be paid at a reduced amount. He explained as follows when questioned by the workers’ compensation judge:

Q Why did you agree to sign a PPO contract with workers’ compensation? Why did Agilus Health or the physical therapy company do that?
A I think in general we sign these PPO agreements to get their health insurance business and for them to direct more volume to us pretty much with the understanding that—
Q They don’t say in that contract because I read it—
A It does say in that contract. We pretty much—
Q Workers’ compensation?
A Correct. We pretty much always were under the understanding that no matter what you signed with those guys you were going to get paid the fee schedule, that this was—
Q It says it in that contract. Didn’t somebody read that contract? Because it says plainly in there that you’re not going to get paid the fee schedule.
A Right. I understand.
Q So, why are you telling me you assume that?
A Because we always — we had signed these PPO contracts historically and we were always paid the fee schedule regardless of what contract that we signed with the PPO network.
Q So you’re saying you just didn’t pay any attention to the language in the instrument that someone from the physical therapy place affixed his signature to?
A No. We paid attention to the contract and we signed the contract, but historically the discount—
Q Well, I’m not talking about historically. I’m talking about this contract—
A Yes, sir.
Q at issue today which specifically says that the clinic, Physical Therapy Services, is agreeing some kind of way to take an amount less than the fee schedule.
|(;A Right. Correct. And generally, in exchange for doing that we expected steerage and we expected the companies to send us more patients.
Q Did the contract say anything about a steerage with regard to workers’ compensation or injured workers?
A That’s the reason why you sign. That’s the reason why healthcare providers sign PPO contracts is to give discounts in exchange for more patients.

Clearly, the health care provider knew of the contents of the contract, but contested it when the insurer abided by its terms with regard to workers’ compensation payments.

For these reasons, I find that La. R.S. 23:1034.2(E) permits the type of agreement entered into by Agilus and that the workers’ compensation judge’s determination should be reversed.