author: JOHNSON, J.

text:
    SUCCESSION OF James McRae GRIFFIN
    NO. 17-CA-637
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR DEFENDANT/APPELLEE, THE JOCKEY CLUB SAFETY NET FOUNDATION, Ron A. Austin, Catherine H. Hilton, Wade P. Webster.
    COUNSEL FOR DEFENDANT/APPELLANT, CAROLYN PATTERSON, JEAN BRELAND, DONALD HERRIN AND JANELL LASETER, Harold E. Molaison, Justin E. Molaison, Jack E. Morris, Brad E. Harrigan
    COUNSEL FOR DEFENDANT/APPELLEE, PERMANENTLY DISABLED JOCKEYS FUND, INC., Daniel R. Martiny, Jeffrey D. Martiny.
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   JOHNSON, J.

In this succession matter, Appellants seek review of the trial court's judgments sustaining an "Exception of No Right of Action and/or No Cause of Action," dismissing their petition of intervention with prejudice, and denying their exception of no right of action against Appellee. For the following reasons, we affirm in part, reverse in part, and remand the matter for further proceedings.

FACTS & PROCEDURAL HISTORY

James Griffin died on October 15, 2015, leaving a will dated July 12, 2001 with a codicil dated September 27, 2015. In January 2016, the executor, Thomas Graham, filed a petition to file the statutory testament and to confirm his appointment as testamentary executor, which was granted the same month. Thereafter, the executor filed a sworn detailed descriptive list of assets of the succession showing the total assets to be $8,238,350.59, and began administering the succession by liquidating assets and distributing funds as approved by the court.

According to Mr. Griffin's will, he left 2 ½% of his gross estate to his executor, Mr. Graham, and 2 ½% of his gross estate to Brad Cashio. He also made particular bequests to his cousins as follows: Janelle Laseter-$100,000; Erwin Graham-$100,000; Carolyn Patterson-$25,000; Jean Breland-$25,000; and Donald Herrin-$25,000. Mr. Griffin specifically provided that should any of the legatees, other than Erwin Graham, predecease him or fail to survive him for 90 days, their legacy "shall lapse and become part of the residue of [his] estate." He specified that if Erwin Graham predeceased him or failed to survive him for 90 days, his legacy was to be given to Erwin Graham's wife, Evelyn. In the event Evelyn predeceased him or failed to survive him for 90 days, the $100,000 legacy was to fail and fall into the residue of his estate. Mr. Griffin further left $25,000 to Sumrall United Methodist Church in Mississippi. Thereafter, Mr. Griffin bequeathed "the rest and remainder of [his] estate" in nine portions as follows: the Disabled Jockeys Fund-3/9ths; the Shoemaker Foundation-2/9ths; the Don MacBeth Memorial Fund-2/9ths; and the National Headquarters of the Salvation Army-2/9ths.

On January 27, 2017, the Jockey Club Safety Net Foundation ("Safety Net") filed a petition to be recognized as a substitute legatee. In its petition, Safety Net alleged that two of the four organizations to which the decedent made bequests in his will, namely the Shoemaker Foundation ("Shoemaker") and the Don MacBeth Memorial Fund ("Don MacBeth"), were no longer in existence. Safety Net asserted that it performs substantially the same identical charitable work as the two terminated charities and sought to be substituted in their place under the authority of La. R.S. 9:2331. The executor answered Safety Net's petition to be recognized as a substitute legatee and stated that he neither agreed nor opposed the petition and deferred any ruling on who should receive any bequests to the court.

Later, on March 8, 2017, two additional organizations, the Permanently Disabled Jockeys Fund, Inc. ("PDJF") and the Jockeys Guild, Inc. ("the Guild"), filed a joint petition to also be recognized as substitute legatees under La. R.S. 9:2331 for the two terminated organizations (Shoemaker and Don MacBeth). PDJF further sought to be recognized as a substitute legatee for a third organization, the Disabled Jockeys Fund, which it alleged ceased operations in 2004 but was never formally dissolved. PDJG asserted it was the successor in interest to the Disabled Jockeys Fund.

In the interim, on February 21, 2017, Appellants, Carolyn Patterson, Jean Breland, Donald Herrin and Janell Laseter, filed a petition for intervention asserting they were the decedent's first cousins and his closest blood heirs and, therefore, were intestate heirs should any of the decedent's estate fall intestate. Appellants acknowledged in their petition that they were also particular legatees under the will, having been bequeathed $25,000, $25,000, $25,000 and $100,000 respectively. Appellants further acknowledged that the residual of the decedent's estate was left to four entities. They asserted that in the event of a lapsed legacy, the lapsed legacy would devolve to them by intestacy because the decedent's will did not provide a condition for a lapsed legacy.

Within their petition for intervention, Appellants asserted an exception of no right of action to Safety Net's petition to be recognized as a substitute legatee. Appellants alleged Safety Net did not have a right of action under the clear wording of La. R.S. 9:2331 because it did not meet the statutory requirements regarding who can bring a petition under the cy pres doctrine.

Thereafter, Safety Net filed an "Exception of No Right of Action and/or No Cause of Action" to Appellants' petition for intervention. Safety Net asserted that Appellants failed to make a claim to any part of the decedent's patrimony in their petition for intervention but rather only filed an intervention to assert an exception. Safety Net argued Appellants lacked standing to intervene on the basis they had never been recognized by a judgment of possession to be the appropriate heirs entitled to assert a claim to the estate. Safety Net also averred that Appellants have no right of action to be recognized as substitute legatees because the decedent's intent was to leave the bulk of his estate to charity. It further argued that Appellants have no cause of action to seek to undo the decedent's bequest to charities because the intent of the testator controls.

Both Appellants and Safety Net's exceptions were heard by the trial court on April 24, 2017. The hearing consisted solely of the argument of counsel-no evidence was offered during the hearing. The trial court took the matter under advisement and rendered judgment on May 22, 2017, overruling Appellants' exception of no right of action and sustaining Safety Net's "Exception of No Right of Action and/or No Cause of Action."

On May 31, 2017, Appellants filed both a motion for new trial and a notice of intent to apply for supervisory writs. The trial court denied the motion for new trial, and this Court denied Appellants' writ application on the basis the judgment at issue was a final, appealable judgment. Succession of Griffin , 17-395 (La. App. 5 Cir. 9/1/17) (unpublished writ disposition). This Court further noted that the May 22, 2017 judgment did not contain the necessary decretal language and advised the parties that the judgment needed to be amended before we could invoke our appellate jurisdiction. Upon motion of Appellants, and consented to by Safety Net, the trial court issued an amended judgment on September 12, 2017 to include the necessary decretal language, specifically overruling Appellants' exception of no right of action as to Safety Net's petition to be recognized as a substitute legatee, sustaining Safety Net's "Exception of No Right of Action and/or No Cause of Action," and dismissing Appellants' petition for intervention with prejudice. Appellants appeal this judgment.

ISSUES

On appeal, Appellants argue the trial court erred in sustaining Safety Net's "Exception of No Right of Action and/or No Cause of Action" and dismissing their petition of intervention because they are intestate heirs and, as such, they have a vested right for property of the estate that devolves by intestacy due to a lapsed legacy. Next, Appellants contend the trial court erred in overruling their exception of no right of action against Safety Net's petition to be recognize as a substitute legatee because La. R.S. 9:2331, or the cy pres doctrine, does not apply in this case.

DISCUSSION

Petition of Intervention-No Right of Action/No Cause of Action

We first address the trial court's sustaining of Safety Net's "Exception of No Right of Action and/or No Cause of Action," dismissing Appellants' petition of intervention. Based on the use of "and/or" in the judgment, it is unclear from the trial court's ruling whether it sustained an exception of no right of action or an exception of no cause of action, or both.

There is no single exception of no right and/or no cause of action. Rather, the exceptions of no right of action and no cause of action are separate and distinct, with each serving a particular purpose with different procedural rules. Hurricane Fence Co. v. Jensen Metal Products , 12-956 (La. App. 5 Cir. 5/23/13), 119 So.3d 683, 688. "[T]he focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant." Id. , quoting Badeaux v. Southwest Computer Bureau, Inc. , 05-612 (La. 3/17/06), 929 So.2d 1211, 1216-17. Further, evidence is permitted to support or controvert an exception of no right of action, but is not allowed to support or controvert an exception of no cause of action. La. C.C.P. art. 931 ; Ferguson v. Dirks , 95-560 (La. App. 5 Cir. 11/28/95), 665 So.2d 585, 587. Accordingly, we will review the propriety of both an exception of no right of action and an exception of no cause of action as to Appellants' petition for intervention.

An appellate court reviews a trial court's rulings on exceptions of no right of action and no cause of action de novo because the exceptions raise questions of law. Badeaux , 929 So.2d at 1217.

No Right of Action

Generally, an action can only be brought by a person having a real and actual interest in which he asserts. La. C.C.P. art. 681. The exception of no right of action tests whether the plaintiff has a real and actual interest in the action. See La. C.C.P. art. 927(A)(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants a cause of action asserted in the suit. Badeaux , supra at 1217. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Howard v. Administrators of the Tulane Educ. Fund , 07-2224 (La. 7/1/08), 986 So.2d 47, 60.

The party raising a peremptory exception bears the burden of proof. On the trial of a peremptory exception of no right of action, evidence is admissible to support or controvert the objection pleaded when the grounds do not appear from the petition. La. C.C.P. art. 931. In this case, neither party presented any evidence at the hearing on the exception; thus, this Court must decide, based on the allegations alone, whether Appellants belong to the class of persons to whom the law grants the cause of action asserted.

In In re Succession of Clark , 06-2210 (La. App. 1 Cir. 11/2/07), 977 So.2d 1000, 1003-04, the First Circuit succinctly summarized the laws regarding succession as follow:

There are two kinds of succession: testate and intestate. LSA-C.C. art. 873. Testate succession results from the will of the deceased, contained in a testament executed in a form prescribed by law. LSA-C.C. art. 874. Intestate succession results from provisions of law in favor of certain persons, in default of testate successors. LSA-C.C. art. 875. Intestate successors are also called heirs, and testate successors are also called legatees. LSA-C.C. art. 876.
In the absence of a valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants, ascendants, and collaterals, by blood or by adoption, and in favor of his spouse not judicially separated from him, in the order provided in and according to LSA-C.C. arts. 881 through 901. LSA-C.C. art. 880.
* * *
With respect to testate succession, testamentary dispositions are particular, general, or universal. LSA-C.C. art. 1584. A universal legacy is a disposition of all of the estate, or the balance of the estate that remains after particular legacies. LSA-C.C. art. 1585.
* * *
A legacy lapses when the legacy is declared invalid. LSA-C.C. art. 1589(6). Testamentary accretion takes place when a legacy lapses. Accretion takes place according to the testament, or, in the absence of a governing testamentary provision, according to LSA-C.C. arts. 1591 through 1596. LSA-C.C. art. 1590.
* * *
In the event that the testamentary provision addressing the issue of accretion is found not to govern the contingency involved in this case, the provisions of LSA-C.C. arts. 1591 through 1596 would apply. See LSA-C.C. art. 1590. Any portion of the estate not disposed of under LSA-C.C. arts. 1591 through 1595 devolves by intestacy. LSA-C.C. art. 1596.

In their petition for intervention, Appellants alleged that the decedent was never married and had no children. They asserted that the decedent's mother was deceased, as well as her two siblings. Appellants contended they are the decedent's cousins, as further evidenced by being so named in the decedent's will, and the closest heirs by blood; thus, they averred they are would-be heirs should any of the decedent's estate fall intestate.

Absent a valid testamentary disposition, Appellants, as decedent's cousins, would stand to inherit from Mr. Griffin under the law of intestate succession. Although Mr. Griffin left a will, there are several issues pertaining to whether there is a lapsed legacy and, if so, whether testamentary accretion applies or whether the lapsed legacy devolves intestate. The exception of no right of action should not be granted simply because there is a valid defense to the plaintiff's claim.

Ferguson , 665 So.2d at 587-88. As potential would-be heirs, we find that Appellants clearly belong to the class of persons that has a legal interest in the subject matter of the litigation at issue and, thus, have a right of action.

No Cause of Action

Regarding the issue of whether the petition for intervention states a cause of action, we consider whether the law extends a remedy to anyone under the factual allegations of the petition. Badeaux , 929 So.2d at 1217. As noted above, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. See La. C.C.P. art. 931. Therefore, an exception of no cause of action is triable solely on the face of the petition and all well-pleaded allegations of fact are accepted as true. Wood v. Omni Bancshares, Inc. , 10-216 (La. App. 5 Cir. 4/26/11), 69 So.3d 475, 479. The issue at the trial of the exception of no cause of action is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Whether the plaintiff can prove the allegations set forth in the petition is not determinative of the exception of no cause of action, and the court may not go beyond the petition to the merits of the case. Clulee v. St. Pierre , 13-881 (La. App. 5 Cir. 5/14/14), 142 So.3d 83, 86.

An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Badeaux , 929 So.2d at 1217. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Id .

There are several circumstances under which a legacy may lapse, one of which includes when the legatee is incapable of receiving the legacy at the death of the testator. La. C.C. art. 1589. In the event of a lapsed legacy, accretion takes place according to the will. La. C.C. art. 1590. If the will does not provide for a lapsed legacy, accretion takes place according to La. C.C. arts. 1591 - 1596. These articles provide that a lapsed legacy that is joint accretes ratably in favor of the other joint legatees. La. C.C. art. 1592. A lapsed legacy that is particular or general accretes in favor of the successor who, under the will, would have received the thing if the legacy had not been made. La. C.C. art. 1591. A lapsed legacy that is neither disposed of through the will nor through the accretion rules pertaining to particular or general legacies, accretes to the universal legatee or devolves by intestacy if there is no universal legatee. La. C.C. arts. 1595 - 96. Thus, in order to state a cause of action to recover a lapsed legacy, there must be factual allegations that a legacy has lapsed and that it accretes to the plaintiff though one of the above means.

Upon review of Appellants' petition for intervention, we find it fails to state a cause of action for recovery of a lapsed legacy. The petition alleges that Appellants are heirs of Mr. Griffin and are also legatees under his will. It further asserts the additional existence of four separate general legatees-the Disabled Jockey's Fund, Shoemaker, Don MacBeth and the National Headquarters of the Salvation Army-to which Mr. Griffin left the residue of his estate. The petition then sets forth the law pertaining to how a legacy lapses and the general rule regarding accretion, by citing various code articles. However, the petition fails to allege that any of the legacies lapsed, the basis for the lapsed legacy, or identify which of the lapsed legacies, if any, devolve by intestacy. Thus, it fails to allege all the elements necessary for Appellants to state a cause of action for recovery of a lapsed legacy.

Under La. C.C.P. art. 934,

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

To the extent the trial court sustained Safety Net's exception of no cause of action, we find the trial court was correct. However, we find the trial court erred in failing to allow Appellants the opportunity to amend their petition to set forth sufficient allegations to state a valid cause of action. See La. C.C.P. art. 934 ; Stoll v. Stich , 14-261 (La. App. 5 Cir 12/16/14), 166 So.3d 250, 253-54.

Petititon to Substitute Legatee-No Right of Action

We now turn to Appellants' exception of no right of action to Safety Net's petition to be recognized as a substitute legatee. In its petition, Safety Net asserted that two charitable legatees in the will, Shoemaker and Don MacBeth, had terminated their existence. It attached the certificates of dissolution from the Secretary of State for the State of California as exhibits to its petition-one filed August 2009 showing that Shoemaker had terminated and one filed July 2014 showing that Don MacBeth had terminated, both before Mr. Griffin died. Safety Net alleged that it performs substantially the same charitable work as Shoemaker and Don MacBeth and, thus, should be substituted as legatees in the will under La. R.S. 9:2331. Appellants filed an exception of no right of action claiming that Safety Net is not a person or entity that can assert the cy pres doctrine, or right to be substituted as a legatee, under La. R.S. 9:2331.

Louisiana Revised Statute 9:2331, which falls under the Chapter entitled "Trusts for Charitable, Benevolent, or Eleemosynary Purpose," provides:

In any case in which circumstances have changed since the execution or probate of a will containing a trust or conditional bequest for charitable, educational or eleemosynary purposes, or since the death of the donor who during his lifetime established a trust or made a conditional donation for any of such purposes, and the change in circumstances is such as to render impractical, impossible or illegal a literal compliance with the terms thereof, the district court having jurisdiction of the succession of the testator or of the domicile of the donee ... may, upon petition of a trustee, or of the person or corporation having custody or possession of the property subject to said trust, conditional bequest or donation or of any heir, legatee or donee who in the absence or invalidity of such trust, conditional bequest or donation would have been entitled to any part of the property contained therein, in accordance with the procedure hereinafter set forth, enter a judgment directing that such charitable trust, devise or conditional bequest or donation shall be administered or expended in such manner (either generally or specifically defined) as, in the judgment of said court, will most effectively accomplish as nearly as practicable under existing conditions the general purpose of the trust, will or donation, without regard to and free from any specific restriction, limitation or direction contained therein.

This statute was enacted in 1954 and codified the cy pres doctrine, or the doctrine of equitable approximation, in Louisiana law. Succession of Milne , 230 La. 729, 89 So.2d 281, 286-87 (1956).

The Louisiana Supreme Court has explained the cy pres doctrine as one of equity by stating the following:

Where the terms of a gift in trust for charitable purposes were originally precise and complete, but have, by lapse of time or otherwise, become unsuited under the altered circumstances to carry out the general intent of the founder, a court of equity may regulate the funds of the charity.
The rule of equity on this general subject seems to be clear that, when a definite charity is created, the failure of the particular mode in which it is to be effectuated does not destroy the charity; for equity will substitute another mode, so that the substantial intention shall not depend upon the formal intention. The doctrine of cy pres adopted to this extent is in harmony with the equitable rule that a liberal construction is to be given to charitable donations to accomplish the general charitable intent of the donor. Thus the court to carry out the testator's intentions, will execute the trust cy pres by sanctioning a scheme to modify it, even though it requires elimination of a subsidiary condition, compliance with which has become impracticable. [Emphasis in original.]

Succession of Milne, supra , quoting 10 Am. Jurisprudence, Charities, sec. 129, p. 680.

More recently, the meaning of the cy pres doctrine was explained in In re Succession of Mizell , 468 So.2d 1371, 1376-77 (La. App. 1st Cir. 1985), reversed on other grounds , 475 So.2d 765 (La. 1985), quoting 14 C.J.S., Charities, § 52, pp. 512-13, as follows:

The meaning of the doctrine of cy pres is that when a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person ... who ... provided for it, it must be performed with as close approximation to that scheme as reasonably practicable; and so, of course, it must be enforced, and the reason or basis for the doctrine is to permit the main purpose of the donor of a charitable trust to be carried out as nearly as possible where it cannot be done to the letter.

While the cy pres doctrine is rooted in equity, it has been codified under Title II, "Of Donations Inter Vivos (Between Living Persons) and Mortis Causa (In Prospect of Death), and the legislature has seen fit to limit its application to certain situations. Most importantly, the cy pres doctrine is limited only to those cases involving "a will containing a trust or conditional bequest for charitable ... purposes." In this case, Mr. Griffin's will does not contain a trust or a conditional bequest and it does not create a trust. Rather, the bequests to the four charitable organizations was simply stated as, "I give all of the rest and remainder of my estate wherever located and of whatever nature in nine portions," which was to be divided among four organizations in specified fractional amounts.

Additionally, under the clear wording of the statute, application of the cy pres doctrine may only be requested by a trustee, a person or corporation having custody or possession of the property subject to the trust or conditional bequest, or an heir, legatee or donee, who in the absence or invalidity of the trust or conditional bequest, would have been entitled to any part of the property. La. R.S. 9:2331. Safety Net does not fall within any of these named groups that may petition for the application of cy pres . Thus, Safety Net does not have a right of action to petition the court to be recognized as a substitute legatee, and the trial court erred in overruling Appellants' exception of no right of action.

In its appellee brief, Safety Net argues that the cy pres doctrine is not limited by the terms of the statute, specifically La. R.S. 9:2331, and cites Adams v. CSX R.R. , 12-139 (La. 4/13/12), 84 So.3d 1289, in support of its position. In Adams , the Louisiana Supreme Court discussed cy pres funds, noting that

Cy pres funds typically result from class action lawsuits when it is either impossible or impractical to distribute the funds directly to the individuals who were injured. In those situations, the court may order that the funds be used for grants to benefit the class members indirectly or as near as possible in order to remedy or compensate for the harm to the class members.

Id. at 1290, n. 1.

We acknowledge that the cy pres doctrine has been applied in areas of law outside of wills and trusts; specifically, as evidenced by Adams , it is used in class action settlements to facilitate the equitable disbursement of class action settlement funds. Cy pres is an equitable doctrine that has existed in our jurisprudential law for more than a hundred years. See In re Succession of Mizell , 468 So.2d at 1372. In 1954, the legislature saw fit to codify the cy pres doctrine in La. R.S. 9:2331 with regards to wills and trusts. In doing so, the legislature set forth certain requirements before the doctrine could be applied in cases involving wills or trusts. Conversely, the legislature has not codified cy pres for purposes of its application to class actions, and thus there are no statutory requirements for the application of cy pres in class action cases.

Even though the cy pres doctrine is rooted in equity, we cannot, contrary to Safety Net's argument, ignore the clear language of the cy pres statute-specifically enacted for wills and trusts-and apply the cy pres doctrine in this case absent the required circumstances set forth in La. R.S. 9:2331. To do so would require us to disregard the law.

DECREE

Based on the foregoing, we reverse that portion of the trial court's September 12, 2017 judgment sustaining Safety Net's exception of no right of action and affirm that portion of the trial court judgment sustaining Safety Net's exception of no cause of action, but reverse that portion of the judgment dismissing Appellants' petition of intervention. We remand the matter to the trial court with instructions that it afford Appellants an opportunity to amend their petition for intervention to remove the grounds for the objection of no cause of action, if they are able to do so, within a reasonable time delay pursuant to La. C.C.P. art. 934.

Furthermore, we reverse the trial court's judgment overruling Appellants' exception of no right of action and enter judgment sustaining the exception of no right of action against Safety Net and dismiss its petition to recognize substitute legatee with prejudice.

Each party is to bear his own appeal costs.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS

      Nothing in the record shows the executor answered PDJF and the Guild's petition to be recognized as substitute legatees.

      We note that Appellants did not file a similar exception to the PDJF and the Guild's petition to be recognized as substitute legatees.

      We point out that Appellants never sought to be substituted as legatees, as they were already legatees in the will. Rather, Appellants asserted claims as heirs to any intestate portion of the estate.

      As discussed infra , we conclude that Safety Net has no right of action in this case. Thus, it follows that Safety Net has no standing to except to Appellants' petition for intervention. See La. C.C.P. art. 921 -"An exception is a means of defense , other than a denial or avoidance of the demand, used by the defendant , whether in the principal or an incidental action, to retard, dismiss, or defeat the demand brought against him." (Emphasis added.) However, we notice Appellants' failure to disclose a cause of action under our authority set forth in La. C.C.P. art. 927(B).

      By this ruling, we in no way express any opinion as to how Mr. Griffin's estate devolves.

      We note that as plaintiffs in intervention, Appellants have no standing under La. C.C.P. art. 921 to except to Safety Net's petition to substitute legatee. However, as we previously noted, we use our authority under La. C.C.P. art. 927(B) to recognize on our own Safety Net's lack of a right of action in this matter.


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    SUCCESSION OF Eugene D. LANIER
    17-540
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2018
    Carey J. Messina, Todd A. Rossi, Michael J. deBarros, Kean Miller L.L.P., 400 Convention Street, Suite 700, Baton Rouge, LA 70802, (225) 387-0999, COUNSEL FOR PLAINTIFF-APPELLANT: St. Jude Children's Research Hospital, Inc.
    Ted W. Hoyt, Russell B. Kahn, Jena K. Wynne, Hoyt & Stanford, L.L.C., 315 S. College Road, Suite 165, Lafayette, LA 70503, (337) 234-1012 COUNSEL FOR DEFENDANTS-APPELLEES: Vance E. Lanier, Dayle C. Guillory
    Richard S. Derbes, Attorney at Law, 9100 Bluebonnet Centre, Suite 102, Baton Rouge, LA 70809, (225) 766-6464, COUNSEL FOR DEFENDANT-APPELLEE: Eugene L. Miller
    Court composed of Sylvia R. Cooks, John D. Saunders, Billy H. Ezell, D. Kent Savoie, and Candyce G. Perret, Judges.
   PERRET, Judge.

Plaintiff, St. Jude Children's Hospital ("St. Jude"), is appealing a trial court judgment that denied its Motion to Traverse the Detailed Descriptive List and Opposition to the First Annual Account in this succession proceeding. The trial court found that the matrimonial home, located at 1829 Guillot Road in Youngsville, Louisiana ("the Guillot Road property"), was properly placed in a Trust in 2004, and was not an asset of the succession. For the following reasons, we affirm the trial court judgment.

FACTS:

On May 25, 2004, Eugene and Erie Lanier, as co-settlors and co-trustees, established a revocable inter vivos trust ("Trust"). Schedule "A" of the Trust transfers to the Trust "[a]ll personal items, clothing, furniture and movables of any type, belonging to the Settlors and located within the family home, or on the grounds, occupied by Settlors located at 1829 Guillot Road in Youngsville, Louisiana." At that time, Mr. and Mrs. Lanier filed an Act of Donation to the Trust in which they donated all their immovable property located at their home at 1829 Guillot Road, Youngsville, Louisiana, to the Trust. The Act of Donation was filed with the Lafayette Parish Clerk of Court on November 23, 2004. Also on that date, Mr. Lanier executed a Last Will and Testament ("2004 Will") in statutory form that "bequeathed all of my [Mr. Lanier's] remaining property, including property that may constitute the legitime of a forced heir, to the Trust which is identified above." The 2004 Will provided for the Lanier's three children, Vicci L. Guillet, Vance E. Lanier, and Dayle C. Guillory, to serve as co-executors of the succession if Ms. Lanier was unable to do so.

On October 11, 2011, Ms. Lanier died. Thereafter, on February 13, 2014, Mr. Lanier executed a new Last Will and Testament ("2014 Will") that provided in pertinent part:

I direct my Executor to sell all of my real and moveable property located at 1829 Guillot Road, Youngsville, Lafayette Parish, Louisiana, including my residence and its amenities and furnishings (after the removal of my personal possessions), and I give and bequeath to St. Jude Children's Research Hospital, located in Memphis, Tennessee, Tax ID 62-0646012, the sum of one hundred thousand dollars ($100,000.00) from the proceeds of such sale or sales.

Mr. Lanier died on December 5, 2015.

The succession of Mr. Lanier was opened on December 21, 2015, at which time the court appointed Vance Lanier and Dayle Guillory as the Independent Co-Executors ("Co-Executors") and the 2004 Will was duly probated. On December 21, 2016, the Co-Executors filed a "First Annual Account" and "Sworn Detailed Descriptive List" for the period of December 21, 2015 through December 21, 2016. The descriptive list provided that the sole asset of the succession was a 2007 Chevrolet pickup truck.

On January 4, 2017, St. Jude filed a Motion to Traverse the Detailed Descriptive List and Opposition to the First Annual Account Motion, seeking to have the Guillot Road property, valued at $600,000.00, added to the detailed descriptive list. In support of its motion, St. Jude alleged the following, in pertinent part:

2.
On May 25, 2004, the Decedent and his wife donated all real property located at 1829 Guillot Road in Youngsville, Louisiana ("Home") to the Trust.
3.
Article VI of the Trust, which is entitled "Revocation And Amendment", provides that:
From and after the death of either of the original Settlors, this Agreement, insofar as it relates to the SURVIVOR'S TRUST, as defined herein, may be revoked or amended at any time and from time to time by the Survivor delivering written notice of revocation or amendment to the Trustee ....
4.
On February 13, 2014, the Decedent created his "Last Will and Testament" ("2014 Testament"). Paragraph (7) of the 2014 Testament provides that:
I direct my Executor to sell all of my real and moveable property located at 1829 Guillot Road, Youngsville, Lafayette Parish, Louisiana, including my residence and its amenities and furnishings (after the removal of my personal possessions), and I give and bequeath to St. Jude Children's Research Hospital, located in Memphis, Tennessee, Tax ID 62-0646012, the sum of one hundred thousand dollars ($100,000.00) from the proceeds of such sale or sales.
5.
Pursuant to Article VI of the Trust, the 2014 Testament revoked and/or amended the Trust as to the Home.
6.
As another independent basis for revocation and/or amendment of the Trust, La. R.S. 9:2051A provides that a modification or revocation of a trust is effective when made by authentic act when the trustee receives the authentic act modifying or revoking the Trust.
7.
The Decedent received the 2014 Testament, which was made by authentic act on February 13, 2014, when he was trustee. Therefore, the requirements of La. R.S. 9:2051A were met and the 2014 Testament revoked and/or amended the Trust as to the Home.
8.
La. R.S. 9:2051B provides that "[a] modification, division, termination or revocation of a trust may also be made by testament. Such modification, division, termination or revocation is not effective as to a trustee until the trustee receives a copy of the testament and the order probating it or ordering it filed and executed."
9.
Thus, even if Article VI of the Trust or La. R.S. 9:2051A have not been met-which is denied-the 2014 Testament will revoke and/or amend the Trust when the current trustee receives a copy of the order probating the 2014 Testament.

On February 24, 2017, the Co-Executors filed a memorandum in opposition to the motion to traverse arguing that "Louisiana law and jurisprudence requires the document or testament revoking a trust or donation inter vivos to contain clear and unequivocal language of the testator's intent to revoke a trust or a donation inter vivos ." The Co-Executors argued that "Decedent's [Mr. Lanier's] 2014 Testament lacks the necessary intent as the 2014 Testament does not mention the Trust, state an intent to revoke the Trust, or state an intent to revoke the donation inter vivos of the Guillot Road Property to the Trust." Thus, they argue that "Decedent could not dispose of the Guillot Road Property with the 2014 Testament because Decedent did not own the Guillot Road Property[;]" rather, "the title to the Guillot Road Property was vested in the trustees of the Trust per Schedule "A" of the Trust and the Act of Donation filed under File Number 2001-00052629 in the records of Lafayette Parish Clerk of Court ...."

In response to the opposition, St. Jude alleges that "[t]here is no 'magical language' required to modify or revoke a Trust as to a particular asset" and that Mr. Lanier "clearly directed the sale of the Guillot Road Property and that $100,000 of the proceeds be paid to St. Jude."

After a hearing, the trial court denied St. Jude's Motion to Traverse the Detailed Descriptive List and Opposition to the First Annual Account and found that "the Co-Executors are not required to list any immovable and movable property located at 1829 Guillot Road, Youngsville, Lafayette Parish, Louisiana, or other amounts, as an asset of Eugene D. Lanier's estate." The trial court further found no just reasons for delay and designated the judgment as a final, appealable judgment under La.Code. Civ.P. art. 1915(B). St. Jude now appeals this final judgment.

STANDARD OF REVIEW:

"In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety." Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC , 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115. However, we review the trial court's interpretation and application of legal principles and statutory provisions under a de novo review. Cleco Evangeline, LLC v. Louisiana Tax Comm'n , 01-2162 (La. 4/3/02), 813 So.2d 351. While La.R.S. 9:2051(B) allows for revocation of a trust by testament, the comments to that article indicate that the testament must clearly identify the trust in order to have any effect on it. We find this to be a question of fact that is subject to the manifest error standard of review.

DISCUSSION:

The Louisiana Trust Code defines a trust as "the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another." La.R.S. 9:1731. "Inherent within this body of law is the concept of trust indestructibility and the protection of the trust instrument from any modification or termination contrary to the settlor's clearly expressed intent." Succession of Gourgis , 08-430, p. 7 (La. App. 5 Cir. 11/12/08), 1 So.3d 528, 532, writ denied sub nom . In re Gourgis , 08-2902 (La. 2/13/09), 999 So.2d 1147.

On appeal, St. Jude argues the following assignments of error: (1) the trial court erred as a matter of law in concluding that the form requirements for a modification of revocation of the Trust were not met and by imposing additional requirements for modification or revocation of a trust found nowhere in the law; (2) the trial court erred as a matter of law in concluding that La.R.S. 9:2043 applied and, therefore, Mr. Lanier could only modify or revoke his Trust for one of the causes in La.Civ.Code. art. 1556 ; (3) the trial court erred as a matter of law in concluding that Mr. Lanier had no right to unilaterally revoke the interest of a Trust beneficiary; and (4) the trial court erred in concluding that Mr. Lanier did not intend to modify or revoke his trust as to the Guillot Road Property.

Before addressing the merits of the appeal, it is worth noting that the parties seek a determination from this court as to whether the property at issue, which was previously donated to the Trust, is not estate property by virtue of the 2014 Will, despite the fact that the 2014 Will has yet to be probated. Because the Co-Executors have reserved their right to challenge the 2014 Will's authenticity, we, at this time, are rendering no opinion as to the authenticity of the 2014 Will. Additionally, while Mr. Lanier may have had the authority to modify the distribution terms of the Trust, whether or not the 2014 Will modified those terms is an issue that must be raised against the Trust and its Trustee after the 2014 Will is probated. Thus, the matter before us today involves Mr. Lanier's succession, what assets are included in his estate, and whether the 2014 Will, if probated, would revoke the Trust and undo the 2004 donation of the property to the Trust.

Louisiana Code of Civil Procedure Article 3137 provides that a sworn descriptive list of succession property is deemed prima facie correct, but it may be traversed or amended if an interested party believes it is in error. La.Code Civ.P. art. 3137. "The burden is on the party filing a motion to traverse to show that the descriptive list is in error." In re Succession of Feingerts , 14-140, p. 9 (La.App. 4 Cir. 3/18/15), 162 So.3d 1215, 1221, writ denied , 15-0754 (La. 6/1/15), 171 So.3d 936.

St. Jude argues in its motion that the purported revocation of the Trust is by Mr. Lanier's 2014 Will. Therefore, we find the revocation of the Trust is governed by La.R.S. 9:2051(B) and not La.R.S. 9:2051(A). Louisiana Revised Statutes 9:2051(B) (emphasis added) addresses the formal requirements needed for a testament to modify, terminate, or revoke a trust, and states:

B. A modification, division, termination, or revocation of a trust may also be by testament. Such a modification, division, termination, or revocation is not effective as to a trustee until the trustee receives a copy of the testament and of the order probating it or ordering it filed and executed.

The revision comment (2003) to La.R.S. 9:2051 (emphasis added) states that "Subsection B allows the settlor of an inter vivos trust, who has reserved the power to modify, divide, terminate, or revoke the trust, to do so by testament. The testament must clearly identify the trust in order to have any effect on it ." Louisiana jurisprudence also supports the 2003 Revision Comment to La.R.S. 9:2051 that a last will and testament must at least mention the trust or the revocation of the trust in order for a last will and testament to constitute a revocation of the inter vivos trust. See Succession of Baker , 480 So.2d 890 (La.App. 2 Cir. 1985) (whereby the appellate court affirmed a trial court's ruling that the fifth codicil of decedent's testament, which made no mention of the inter vivos revocable trust, did not modify or revoke the trust); Succession of Gourgis , 08-430 (La.App. 5 Cir. 11/12/08), 1 So.3d 528, 530, writ denied , 08-2902 (La. 2/13/09), 999 So.2d 1147 (whereby the appellate court held that the decedent's purported olographic testament did not modify the decedent's inter vivos revocable trust under La.R.S. 9:2051(B) because the purported olographic testament did not mention the trust or an intent to modify the trust.). Thus, the courts in Succession of Baker and Succession of Gourgis held that the testament must clearly identify the trust in order for the testament to have any effect on the trust.

Similarly, we find that Mr. Lanier's 2014 Will lacks the necessary intent to revoke the Trust because it fails to mention the Trust, state an intent to revoke the Trust, or state an intent to revoke the donation inter vivos of the Guillot Road property to the Trust. Rather, the 2014 Will directs the executor of the estate to sell the Guillot Road property, (property that does not belong to the estate), and then to distribute $100,000.00 of sale proceeds to St. Jude. Additionally, we agree with the Co-Executors' argument that the requirements under La.R.S. 9:2051(B) have not been met because "a probated copy of Decedent's 2014 Testament or a copy of the order probating and executing Decedent's Testament have not been delivered to the trustee of the Trust." Again, Mr. Lanier's 2004 Will, not the 2014 Will that attempted to revoke the donation inter vivos of the Guillot Road property to the Trust, was probated following his death.

Not only did the 2014 Will fail to mention the Trust but Mr. Philip Roberts, the attorney who prepared and notarized the 2014 Will, testified that he was not aware of the assets in the Trust at the time he was preparing the 2014 Will and merely prepared the 2014 Will according to what Mr. Lanier told him during their meeting. Specifically, when asked if he had any personal knowledge as to what assets Mr. Lanier had, Mr. Roberts stated as follows:

Oh, I did not have any personal knowledge. I did talk to Vance [Mr. Lanier's son] about it. Vance said he was going to bring some information to clarify that because I understood that some of it may have been placed in trust, and then-but Vance never did show up. We had an appointment, he didn't show up, so I never did get that information.

Had Mr. Lanier wanted to revoke the Trust, or the donation inter vivos of the Guillot Road property to the Trust, Mr. Roberts could have easily done so while preparing the 2014 Will. Because we find that Mr. Lanier did not revoke, in whole or in part, the Trust, we agree with the trial court that he was not owner of the Guillot Road property at the time of his death; rather, the Guillot Road property was owned by the Trust, which was properly recorded in 2004.

We also find merit in the Co-Executors' argument that under the terms of the Trust itself, Mr. Lanier did not have the authority to revoke the Trust. As stated in Article VI of the Trust documents "[e]ither of the Settlors [Mr. and Mrs. Lanier] during their joint lives , may at any time and upon successive occasions, revoke this Trust in whole or in part." After the death of Mr. Lanier's wife, Mr. Lanier only had authority to revoke the "SURVIVOR'S TRUST" if one was established under Article VII of the Trust. However, the record before us is void of any evidence that a Survivor's Trust was established or whether the property at issue, or any percentage of it, was included in that Trust.

For these reasons, we agree with the trial court's factual finding that the 2014 Will did not revoke the 2004 Trust or transfer the Guillot Property to the estate. Accordingly, we affirm the trial court judgment that denied St. Jude's Motion to Traverse the Detailed Descriptive List and Opposition of the First Annual Account and its ruling that the Co-Executors are not required to list any immovable and movable property located at 1829 Guillot Road, Youngsville, Louisiana, as an asset of Eugene D. Lanier's estate. All costs of this appeal are assessed to plaintiff/appellant, St. Jude Children's Hospital.

AFFIRMED.

Cooks, J., dissents for the reasons assigned by Judge Saunders.

Saunders, J., dissents with written reasons.

SAUNDERS, J. DISSENTS WITH WRITTEN REASONS.

I disagree with the majority opinion that (1) Mr. Lanier's 2014 Will lacks the necessary intent to revoke the Trust, and (2) Under the terms of the Trust itself, Mr. Lanier did not have the authority to revoke the Trust.

The Trust provided that "[a]ny and all gifts made by the Settlors of Trust assets to third parties shall be a withdrawal of the property from the Trust at the time the gift is made and shall be considered as made personally by the Settlor making the gift." The Trust also authorized Mr. Lanier to revoke or amend the Trust "at any time" and, in the event of Mrs. Lanier's death, to "manage, control, sell, convey, exchange, donate, partition, assign, divide, subdivide, improve or repair" the Trust estate as if he were "the absolute owner thereof."

In 2011, Mrs. Lanier passed away, rendering Mr. Lanier the sole settlor/trustee of the Trust. In 2014, Mr. Lanier executed a Last Will, allegedly having forgotten about the testament he executed in 2004. Mr. Lanier's 2014 Last Will differed from his 2004 testament in that it made bequests to his grandchildren and sister, and unambiguously expressed his intent to sell the Guillot Road Property and distribute some of the funds from the proceeds of such sale or sales to Plaintiff.

Louisiana Revised Statutes 9:2051 provides:

A. A modification, division, termination, or revocation of a trust shall be by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the person who makes the modification, division, or termination or by the affidavit of one of the attesting witnesses. The modification, division, termination, or revocation is not effective as to a trustee until a copy of the authentic act or a copy of the acknowledged act is received by him.
B. A modification, division, termination, or revocation of a trust may also be by testament. Such a modification, division, termination, or revocation is not effective as to a trustee until the trustee receives a copy of the testament and of the order probating it or ordering it filed and executed.

This statute makes clear the form requirements for modification or revocation of a trust-one of which is by testament that is received by the trustee and later probated. The record reveals (1) Mr. Lanier was rendered the sole settlor/trustee of the Trust in 2011 by virtue of Mrs. Lanier's death, and, as such, had the power to "donate" the trust estate as if he were "the absolute owner thereof;" (2) Mr. Lanier did, in fact, direct the sale of the Guillot Road Property by authentic act in his Last Will dated February 13, 2014, in which he bequeathed to Plaintiff the sum of One Hundred Thousand Dollars ($100,000.00) from the proceeds of that sale or sales; (3) Mr. Lanier received a copy of the testament; and (4) the testament was ultimately submitted for probate. As such, in my view, the form requirements for modification or revocation of the trust were met.

Accordingly, I cannot agree with the proposed majority opinion. I respectfully dissent.

      Vicci Guillet is now deceased, leaving two children, Jodie Ernest Crouch, III and Jesse Eugene Crouch.

      La.R.S. 9:2051(A), which states that a revocation of a trust "shall be by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the person who makes the modification ... or by the affidavit of one of the attesting witnesses[,]" and that "[t]he ... revocation is not effective as to a trustee until a copy of the authentic act or a copy of the acknowledged act is received by him."


author: PERRET, Judge. EZELL, Judge, dissenting.

text:
    Joseph ADAMS v. GEORGIA GULF LAKE CHARLES, LLC, et al.
    17-723
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2018
    Thomas A. Filo, Cox, Cox, Filo Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF-APPELLEE: Joseph Adams, Jr.
    H. Alston Johnson, III, Gregory T. Stevens, J. Alan Harrell, Phelps Dunbar, LLP, P.O. Box 4412, Baton Rouge, LA 70821-4412, (225) 346-0285, COUNSEL FOR DEFENDANTS-APPELLANTS: Liberty Mutual Insurance Co., Georgia Gulf Lake Charles, LLC
    Court composed of John D. Saunders, Billy H. Ezell, John E. Conery, Van H. Kyzar, and Candyce G. Perret, Judges.
   PERRET, Judge.

This is a workers' compensation claim for indemnity benefits based on an alleged occupational hearing loss. Georgia Gulf Lake Charles, LLC and its insurer, Liberty Mutual Insurance Company (hereinafter collectively referred to as "Georgia Gulf"), appeal the decision of the workers' compensation judge ("WCJ") awarding Joseph Adams supplemental earnings benefits ("SEB"), penalties, and attorney fees for hearing loss caused by his employment. Mr. Adams answered the appeal seeking additional attorney fees for work done on the appeal. For the following reasons, we amend the judgment to limit Mr. Adams'

SEB payments to 104 weeks, and affirm as amended. Additionally, we render an attorney fee award of $5,000.00 in favor of Mr. Adams and against Georgia Gulf Lake Charles, LLC and Liberty Mutual Insurance Company, jointly, severally and in solido, for work done on this appeal.

FACTS:

Mr. Adams was employed for forty years by Georgia Gulf from February of 1971 until his retirement in January of 2011. While employed at Georgia Gulf's facility, Mr. Adams worked as a Construction Worker, Boilermaker, and Crane Operator. Mr. Adams claims he began to notice some degree of hearing loss in his left ear in the mid-1980s and in his right ear in 1997. Mr. Adams testified that he believes his left ear experienced hearing loss much more than his right ear because he would often remove his left earplug an average of five or six times a day in order to communicate with his co-workers in the plant environment.

In January 2010, Mr. Adams had back surgery. Although Mr. Adams testified that he had planned to work at Georgia Gulf until the age of seventy, he chose to retire in January of 2011, at the age of sixty-five, after being informed by Georgia Gulf that it was retiring him. In his supplemental appellee brief, Mr. Adams concedes that "the record does establish that Mr. Adams has not sought employment since his retirement from Georgia Gulf and that he now considers himself retired."

In December 2011, Mr. Adams filed a tort claim alleging occupational noise-induced hearing loss as a result of his employment with Georgia Gulf. In 2015, the Louisiana Supreme Court held, in Arrant v. Graphic Packaging International, Inc. , 13-2878, 13-2981 (La. 5/5/15), 169 So.3d 296, that occupational noise-induced hearing loss is an occupational disease under the Louisiana Workers' Compensation Act ("LWCA"). Thereafter, on June 12, 2015, Mr. Adams filed the current workers' compensation claim, seeking SEB as a result of his alleged occupational hearing loss.

A bench trial was held on February 7-8, 2017. On May 9, 2017, the WCJ signed a judgment finding that Mr. Adams established entitlement to workers' compensation medical and indemnity benefits due to occupational hearing loss; Mr. Adams is entitled to SEB at the maximum compensation rate of $579 per week from January 1, 2011, with interest; Georgia Gulf shall continue to pay this rate until it either finds or offers a job to Mr. Adams paying at least ninety percent of his average weekly wage; said job must be within the restrictions placed on Mr. Adams by Dr. Donna Breen ("Dr. Breen"); Mr. Adams was entitled to a penalty of $8,000.00 and attorney fees of $25,000.00 for Georgia Gulf's failure to investigate the claim and the arbitrary and capricious handling of the claim; and ordered Georgia Gulf to pay medical benefits as needed by Mr. Adams.

On appeal, Georgia Gulf asserts the following four assignments of error: (1) the WCJ erred in determining that Mr. Adams' claim had not prescribed; (2) the WCJ erred in concluding that Mr. Adams established a causal connection between his hearing loss and employment at Georgia Gulf, and the corresponding entitlement to medical and indemnity benefits; (3) the WCJ erred in determining that Mr. Adams was entitled to SEB; and (4) the WCJ erred in awarding penalties and attorney fees. Mr. Adams answered Georgia Gulf's appeal, seeking additional attorney fees for work done on this appeal.

STANDARD OF REVIEW:

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review.

Banks v. Indus. Roofing Sheet Metal Works, Inc ., 96-2840 (La. 7/1/97), 696 So.2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. As the Louisiana Supreme Court stated in Stobart v. State, Through Department of Transportation & Development , 617 So.2d 880, 882 (La.1993) (internal citations and quotation marks omitted):

[T]he issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. However, where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness's story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Nonetheless, this Court has emphasized that the reviewing court must always keep in mind that if the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

DISCUSSION:

Prescription

The first issue to address is whether the WCJ correctly determined that Mr. Adams' workers' compensation claim had not prescribed. Georgia Gulf argues that Mr. Adams was clearly aware that he had occupational hearing loss as early as the 1990s but did not file his tort suit until 2011. Thus, Georgia Gulf alleges that Mr. Adams' workers' compensation claim prescribed because his untimely tort suit cannot toll the prescriptive period.

Conversely, Mr. Adams argues that there are special prescription rules for an occupational illness under La.R.S. 23:1031.1(E), which states that a claim must be filed "within one year of the dates that: (1) [t]he disease manifested itself[,] (2) [t]he employee is disabled from working as a result of the disease[,] [and] (3) [t]he employee knows or has reasonable grounds to believe that the disease is occupationally related." Accordingly, Mr. Adams alleges that because his employment with Georgia Gulf did not terminate until January 1, 2011, his claim could not have prescribed given that his tort suit was filed in December 2011, and it was pending at the time of the instant workers' compensation claim. We agree.

Louisiana Civil Code Article 3462 provides that prescription is interrupted "when the obligee commences action against the obligor, in a court of competent jurisdiction and venue." The "interruption of prescription resulting from the filing of suit in a competent court and in the proper venue or from service of process within the prescriptive period continues as long as the suit is pending." La.Civ.Code art. 3463. Louisiana jurisprudence holds that where a tort suit was filed prior to the workers' compensation claim, courts have found that the employee's filing of a tort suit against his employer interrupted prescription as to a subsequently-filed workers' compensation claim by the employee against the employer. Bruce v. Becnel , 98-1349 (La.App. 5 Cir. 10/13/99), 747 So.2d 647, writ denied , 99-3250 (La. 1/28/00), 753 So.2d 830 ; Cryer v. Tenneco Oil Co. , 615 So.2d 1070 (La.App. 4 Cir. 1993) ; Burrier v. Malmac Energy Corp. , 592 So.2d 1370 (La.App. 2 Cir. 1992).

In this case, Mr. Adams' tort suit against Georgia Gulf was filed in a court of competent jurisdiction and proper venue within one year of his termination of employment. In the petition, Mr. Adams alleged occupational induced hearing loss. Thus, both the tort claim and workers' compensation claim against Georgia Gulf were based on the same illness, which was Mr. Adams' occupational noise-induced hearing loss. For these reasons, we find no error in the WCJ's factual conclusion that the timely-filed tort action interrupted prescription as to Mr. Adams' subsequent workers' compensation claim against Georgia Gulf.

Causation

The second issue to address is whether the WCJ properly determined that Mr. Adams met his burden of proving that he suffered hearing loss as a result of the noise levels associated with his employment at Georgia Gulf. Georgia Gulf contends Mr. Adams has age-induced hearing loss, whereas Mr. Adams alleges that he has an occupationally induced hearing loss as a result of his employment with Georgia Gulf for over forty years.

Louisiana Revised Statutes 23:1031.1 governs workers' compensation claims for an occupational disease and defines an occupational disease as a "disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." "A plaintiff bears the burden of proving, by a preponderance of the evidence, that the disease at issue was contracted during the course of her employment and that the disease was the result of the nature of the work performed." Mitchell v. All. Compressors , 05-1186, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 131-32. As stated in Comeaux v. Star Enterprise/Motiva Enterprise , 02-24, p. 8 (La.App. 1 Cir. 12/20/02), 836 So.2d 359, 364 (citations omitted):

The causal link between his illness and work-related duties must be established by a reasonable probability. The claimant will fail if he shows only a possibility that the employment caused the disease, or that other causes not related to the employment are just as likely to have caused the disease.

The record contains the testimony of four expert witnesses on this issue: Dr. Breen, a board certified otolaryngologist; Dr. Robert Dobie, a board certified otolaryngologist; Dr. Steven Madix, board certified in speech pathology and audiology; and Dennis Driscoll, the President of Associates in Acoustics, Inc., a professional consulting firm in noise control and hearing conservation. Plaintiff's expert, Dr. Breen, testified that she first saw Mr. Adams for hearing difficulties on June 21, 2016. At that time, she performed an audiogram that "showed a deeply sloping sensorineural hearing loss, bilateral and symmetric above 2000 Hz. He was [sic] tinnitus matched in both ears for 4000 Hz. This type of precipitous loss in the high frequencies is indicative of acoustic trauma." Dr. Breen testified that "this type of hearing pattern is often seen with noise exposure in an industrial environment" and that Mr. Adams has "objective indications of sensorineural hearing loss due to acoustic trauma and chronic tinnitus as well."

On July 27, 2016, Dr. Breen supplemented her report to include working restrictions based on the results of Mr. Adams' hearing tests. Specifically, the report stated, in pertinent part:

It is my understanding that this patient was working in the refinery units with high levels of noise exposure from compressors and pumps and other heavy equipment. Based on the results of his audiogram, I would recommend that the patient work in a less noisy environment such as in an office or warehouse without this high level of noise exposure. It is medically necessary to intervene when presented with high frequency hearing loss of this type by simply changing the environment to a less noisy workplace exposure. In taking these precautions, it would avoid more severe hearing loss.

On October 12, 2016, Dr. Breen disagreed with Georgia Gulf's expert, Dr. Dobie, who attributed Mr. Adams' hearing loss to age-related hearing loss. After reviewing Mr. Adams' older audiograms from 1978 and 1979, a time in which hearing protection was seldom worn, Dr. Breen found that Mr. Adams began having hearing loss at thirty-three years old, which in her opinion, "would mitigate against having age-related hearing loss."

Georgia Gulf's expert, Dr. Madix, provided his professional opinion on Mr. Adams' hearing loss after reviewing Mr. Adams' records. Dr. Madix stated in correspondence dated December 3, 2015, that he found "nothing in those documents that links his [Mr. Adams'] loss to occupational noise exposure." Dr. Madix further stated, as follows:

No hearing test ever indicated a noise notch, he [Mr. Adams] never indicated that he had tinnitus, he reports wearing hearing protection essentially all the time (although I [Dr. Madix] don't know the noise levels he was exposed to), as well as he reports that he has side jobs/hobbies that are noisy....
The only occupational exposure that I see that could be linked to hearing loss is the issue of him not wearing the respirator when around whatever fumes he was exposed to. Some of those industrial solvents have ototoxic side effects that might warrant some additional research. But otherwise, his hearing loss appears to be presbycusic in nature, with the exception of the asymmetry in that left ear, which there doesn't appear to be any reported cause for that.

Dr. Dobie also reviewed Mr. Adams' records and testified that, in his opinion, Mr. Adams has "mild age-related hearing loss." He testified that it would be medically acceptable for Mr. Adams "to return to his previous job, as long as he continued to use hearing protections as needed and was otherwise compliant with the hearing conservation program." However, Dr. Dobie indicated that his opinions are based only on the information provided to him at that time and that he would appreciate the opportunity to reconsider and revise his opinions should there be additional information.

Georgia Gulf also hired Mr. Driscoll to testify at trial regarding the effects of occupational noise on employees in industrial facilities. Mr. Driscoll testified that the permissible exposure level is 90 decibels and that "when we are over 90, that's when mandatory hearing protection kicks in." Mr. Driscoll testified that Mr. Adams' noise exposure during his tenure at the plant, based on the materials he reviewed, averaged 82.6 decibels without any consideration for wearing hearing protection. When asked whether he believed there were any significant changes to the facility over time that would have considerably changed the noise levels, Mr. Driscoll testified that he didn't "think the levels would have changed significantly over time."

Mr. Adams testified that he first began noticing signs of hearing loss ten to fifteen years before he left Georgia Gulf in 2011, and that his hearing gradually worsened over time. He testified that he did not begin to wear ear protection until the late 1970s when Georgia Gulf first began furnishing ear plugs for noise protection. When asked how often he would be using a jackhammer during those earlier years, Mr. Adams testified that "in the earlier years, we had a-we had a lot of jackhammer work to do, pouring new concrete. Before we started hiring contractors, well, me and my friends, that's all we done [sic] was use jackhammers, sometimes three times a week, sometimes ... four times ...."

The WCJ provided written reasons for judgment for concluding that Mr. Adams had established his entitlement to workers' compensation benefits due to occupational noise induced hearing loss and stated, in pertinent part:

Dr. Dobie as well as Mr. Driscoll attributes claimant's hearing loss to age, but the cold tests they relied upon did not substantiate the claim. In fact, Mr. Adams had at least three "threshold shifts" (as shown by Georgia Gulf's own audiograms ) which means his hearing loss was accelerating at a rate OSHA [Occupational Safety and Health Administration] attributes to noise loss after adjustment for age.
After listening to the testimony of the claimant and the doctors called by the defendants and reviewing the medical evidence, this court believes claimant has proven he suffered an on-the-job work injury of occupationally induced hearing loss. Dr. Breen, the only doctor that saw claimant, administered testing and took oral medical history and clearly found tinnitus which employer's first doctor, Dr. Madix, said was absent, e.g., "He never complained he had tinnitus." The other doctor hired by the defendant who reviewed cold records opined that tinnitus does not mean anything. Therefore, defendant's doctors' opinions conflict, both of whom merely examined the records of the claimant. There is something to be gleaned from actually talking to a claimant that you are going to get as opposed to viewing only cold records. For instance, the fact that claimant was exposed to jackhammers and other high decibel noise for almost ten years before he was even given hearing protection. Further, the claimant had a habit of repeatedly removing his left earplug over the years to converse with his co-workers. All this information was relayed to Dr. Breen who has a complete picture of claimant's over 40 years of work history with defendant/employer and was able to make the determination that she did.

After reviewing the expert witness testimony and the exhibits, we find no error in the WCJ's decision to credit the testimony of Dr. Breen over Georgia Gulf's experts, especially considering the fact that Dr. Breen was the only expert who performed a physical assessment of Mr. Adams. Accordingly, we find no error in the WCJ's finding that Mr. Adams satisfied his burden of proving that his hearing loss resulted from the noise he was exposed to during his forty year employment with Georgia Gulf.

Entitlement to SEB

The third issue to address is whether the WCJ erred in finding that Mr. Adams is entitled to SEB payments at the maximum compensation rate of $579 per week from January 1, 2011, and ordering Georgia Gulf to continue to pay this rate until it either finds or offers a job to Mr. Adams paying at least ninety percent of his average weekly wage. Georgia Gulf cites to Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793 (La. 1/9/11), 56 So.3d 170, 175 (emphasis in original) for the statutory standard to be used in determining whether Mr. Adams met his initial burden of proof for SEB:

La. R.S. 23:1221(3)(a) requires that a claimant prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of wages he was earning at the time of injury "whether or not the same or similar occupation as that in which the employee was customarily engaged when injured." (Emphasis added). The statute clearly places its focus on the amount of wages earned before and after the accident, not the type of occupation or the type of work performed. In reviewing the lower courts' judgments, we will examine all the evidence that bears upon the employee's inability to earn 90% or more of his pre-injury wages to determine whether Poissenot [claimant] met his initial burden.

Georgia Gulf argues that Mr. Adams is not entitled to SEB regardless of the cause of his hearing loss because he failed to prove any "economic" disability. It alleges that Mr. Adams made no attempt to find other employment or failed to prove that he could not earn more than ninety percent of his pre-accident wages since 2011, and that any claim for SEB was extinguished when he retired in January of 2011, at age sixty-five.

Although Mr. Adams agrees with Georgia Gulf that the Poissenot Court stressed that the focus under the statute is on whether a claimant has shown inability to earn ninety percent of his pre-injury wages, Mr. Adams argues that Poissenot did not involve, and the Court did not discuss, an occupational illness or disease such as in this case. Thus, Mr. Adams cites to the Louisiana Supreme Court case, Seal v. Gaylord Container Corp. , 97-0688 (La. 12/02/97), 704 So.2d 1161, for the proposition that a claimant can establish a prima face case of entitlement to SEB for an occupational illness by noting his age, his limited education and specialized work history, his restrictions from working in his previous employment, and the fact that he earned more than minimum wage. Mr. Adams alleges that there is no question that he established a prima facie case for entitlement to SEB for his occupational hearing loss because he is (1) sixty-five years old, (2) worked forty years with Georgia Gulf, (3) worked thirty-five years in a specialized job at Georgia Gulf, (4) had a noise restriction that prevented him from working in most, if not all, work environments at the plant, (5) had only a high school diploma, and (6) earned four times more than minimum wage. Mr. Adams argues that once he established a prima facie case on the principles set out in Seal , then the burden shifted to Georgia Gulf to establish available jobs within Mr. Adams' restrictions, in his geographic area, paying ninety percent or more of Mr. Adams' pre-injury wage. We agree.

The Louisiana Supreme Court addressed the standards for proving entitlement to SEB payments in Clay v. Our Lady of Lourdes Regional Medical Center, Inc. , 11-1797, p. 4 (La. 5/8/12), 93 So.3d 536, 538-39, as follows:

The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. Poissenot v. St. Bernard Parish Sheriff's Office, 09-2793 (La. 1/9/11), 56 So.3d 170, 174 ; Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993). La. R.S. 23:1221(3)(a) provides that an employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn 90% or more of his average pre-injury wage. Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Poissenot , 56 So.3d at 174 ; Banks v. Industrial Roofing & Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. La. R.S. 23:1221(3)(c)(i) ; Poissenot, 56 So.3d at 174 ; Banks, 696 So.2d at 551.

It is also worth noting that this "analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that worker's compensation law is to be liberally construed in favor of coverage." Daigle v. Sherwin-Williams Co., 545 So.2d 1005, 1007 (La.1989). In Seal , the claimant, Mr. Silmon Seal, received SEB payments for an occupational illness based on his long-term exposure to chemical vapors while employed at a paper mill. In finding that Mr. Seal had indeed met his burden proving a prima facie case of entitlement to SEB, the Louisiana Supreme Court held:

The medical and lay testimony established that Seal could not return to his former job as a bogol operator-a job at which he was able to earn $17.36 per hour, more than three times the minimum wage. In his testimony, Seal concedes that he is able to earn minimum wage, and the hearing officer's award of SEBs reflects this concession. In addition, we find that Seal's age, limited education, and specialized work history are additional factors that mitigate in favor of the hearing officer's conclusion that Seal is unable to earn ninety percent (90%) or more of his pre-injury wages. Thus, we conclude that because there was sufficient evidence in the record, the court of appeal erred [in] its determination that the hearing officer's findings on this issue were manifestly erroneous.

Seal , 704 So.2d at 1166-67. Similarly, we find that the record in this case supports the WCJ's finding that Mr. Adams established a prima facie case for entitlement to SEB for his occupational hearing loss because, like Mr. Seal, Mr. Adams only had a high school diploma, had been working at the plant for the past forty years, was sixty-five years old, had a work restriction that prevented him from working in most work environments at Georgia Gulf, and was making four times minimum wage at the time of his occupational illness.

Because we find Mr. Adams satisfied his initial burden of proving entitlement to SEB payments, we now consider whether Georgia Gulf carried its burden of proving that there were jobs available to Mr. Adams within his work restrictions and that paid him ninety percent of his pre-injury wages.

In Banks , 696 So.2d at 557, the Louisiana Supreme Court set forth the minimum standard that an employer must meet in order to discharge its burden of proving job availability:

(1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job's existence.

The court defined "suitable job" as "a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education." Id.

Ben Phelps, the claims adjuster for Liberty Mutual, testified that no effort was made by Georgia Gulf to offer Mr. Adams any job which fit within his work restrictions. Specifically, Mr. Phelps testified as follows:

Q. Well, my point is: You knew that he [Mr. Adams] was seeking SEB benefits. Did you know that, in Louisiana, one way to avoid having to pay SEB benefits would be to offer him a job that pays 90 percent or better of his wages back when he was working at Georgia Gulf?
A. Correct.
Q. Okay. And all I'm saying is: To keep from having to pay these SEB benefits, did you talk to Georgia Gulf about offering such a job?
A. We did not. We had-no, we did not.
Q. Okay. Well-and since you didn't offer him the job, can you explain to the Court why you didn't start his SEB benefits at that point?
A. At that time we had-since we had forwarded the records to Dr. Dobie from Dr. Breen, his position was still that the hearing loss was not occupationally related; and as such, you know, we felt that it wasn't reasonable to begin based on that opinion.
Q. And where was that opinion coming from? I mean, I saw a report from Dr. Dobie. He didn't render a report until October.
A. We had spoken with him telephonically as well as-you know, basically it was telephonically that we had spoken with him, and I believe there was some drafted reports before then. I couldn't speak to the date, though.
Q But you knew that Dr. Dobie had never spoken to Mr. Adams or examined him, right?
A. Correct.
Q. You do know that in a workers' compensation claim, you are supposed to start benefits and pay them until such time as you have a sufficient basis to controvert the claim, to reasonably controvert the claim; correct?
A. Correct.

After applying the minimum standard as enunciated above, we find the record void of any evidence offered by Georgia Gulf to carry its burden of establishing the availability of any job for Mr. Adams other than the job he had held for the last thirty-five years, which he is now medically restricted from performing. As such, we find no manifest error in the WCJ's judgment that awarded Mr. Adams' SEB payments.

Retirement and SEB payments

Although we find that the WCJ properly awarded SEB payments to Mr. Adams, we find it was error for the court to order Georgia Gulf to continue to pay "this rate until it either finds or offers a job to Claimant paying at least 90% of his AWW [average weekly wage]." At the time Mr. Adams was diagnosed with occupational hearing loss, he was over sixty-five years old and had retired from Georgia Gulf. In addressing retirement and SEB benefits, the court in Breaux v. City of New Orleans , 97-273, pp. 6-7 (La.App. 4 Cir. 8/27/97), 699 So.2d 482, 486, writ denied , 97-2491 (La. 12/19/97), 706 So.2d 454 (internal citations and quotation marks omitted), stated as follows:

Retirement occurs[,] for purposes of SEB entitlement[,] when the worker either withdraws from the work force or draws old age social security benefits, whichever comes first. Determination of whether an employee has withdrawn from the work force for purposes of SEB is based on many factors, including age; the circumstances of each case control. Generally, an employee who elects retirement benefits in lieu of returning to work is considered to have retired. This rule also applies if the employee states his intention to not look for another job despite his doctor's opinion he could return to sedentary work.

Under the provisions of La.R.S. 23:1221(3)(d)(iii), "[w]hen the employee retires ... the period during which supplemental earnings benefits may be payable shall not be less than one hundred four weeks." Because the record supports the fact that Mr. Adams has not sought employment since his retirement in June 2011, and that he now considers himself retired, we amend the WCJ's judgment to limit Mr. Adams' SEB payments to 104 weeks.

Penalties and Attorney fees

The last issue to address is whether the WCJ erred in awarding Mr. Adams penalties and attorney fees. Georgia Gulf argues that it appropriately investigated this claim and relied upon substantial expert medical evidence confirming that Mr. Adams' hearing loss is not compensable. Mr. Adams alleges that the WCJ properly awarded penalties and attorney fees for Georgia Gulf's arbitrary and capricious complete denial of benefits notwithstanding Mr. Adams' demand for benefits that was supported by his treating physician, Dr. Breen.

Louisiana Revised Statutes 23:1201(F) governs the assessment of penalties and award of attorney fees for an employer's failure to pay benefits. Louisiana Revised Statutes 23:1201(F)(2) provides that Subsection (F) is inapplicable if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer had no control. "Thus, to determine whether the claimant's right has been reasonably controverted, ... a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant." Brown v. Texas-LA Cartage, Inc., 98-1063, p. 9 (La. 12/1/98), 721 So.2d 885, 890.

"The determination of whether an employer or insurer should be cast with penalties and attorney fees in a workers' compensation action is essentially a question of fact." Authement v. Shappert Eng'g , 02-1631, p. 12 (La. 2/25/03), 840 So.2d 1181, 1188. This court has consistently held that in order "[t]o avoid penalties and attorney[']s fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits." George v. Guillory, 00-591, p. 13 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1209, overruled on other grounds by Smith v. Quarles Drilling Co., 04-179 (La. 10/29/04), 885 So.2d 562.

After reviewing the record, especially the testimony of Mr. Phelps that he did not initially investigate the claim per Georgia Gulf's request, we find no manifest error in the WCJ's finding that the "insurer [Liberty Mutual], although following the employer's instruction, both clearly failed to controvert this case and was arbitrary and capricious in handling the same." Accordingly, we affirm the court's award of $8,000.00 in penalties and $25,000.00 in attorney fees.

Mr. Adams' answer to the appeal seeks additional attorney fees for the appeal work done on this case. Because attorney fees were correctly awarded by the trial court, failing to award increased attorney fees for the additional work required for this appeal would be inconsistent with that judgment, especially considering the fact that Mr. Adams' attorney presented two oral arguments before this court and filed an appellee brief and a supplemental brief on the issues. Accordingly, we conclude that Mr. Adams is entitled to an award of $5,000.00 in attorney fees for additional work on appeal.

For the reasons set forth above, the judgment of the WCJ is amended to limit Mr. Adams' SEB payments to 104 weeks. In all other respects, the judgment is affirmed. Additionally, judgment is rendered in favor of Mr. Adams and against Georgia Gulf Lake Charles, LLC and Liberty Mutual Insurance Company, jointly, severally and in solido, in the amount of $5,000.00 in additional attorney fees for the work necessitated by the present appeal. All costs of this appeal are assessed against defendants, Georgia Gulf Lake Charles, LLC and Liberty Mutual Insurance Company.

JUDGMENT AMENDED AND, AS AMENDED, AFFIRMED.

Ezell, J., dissents and assigns written reasons.

EZELL, Judge, dissenting.

The majority opinion finds that the workers' compensation judge was correct in determining that Mr. Adams is entitled to SEB. I respectfully dissent and would reverse the judgment of the trial court for the following reasons.

Mr. Adams was employed by Georgia Gulf beginning in 1971. He worked several labor positions at different locations at Georgia Gulf's facility, doing work ranging from construction, to being a boilermaker, and crane operation during his almost forty years at Georgia Gulf, to name a few. Mr. Adams claims he began to notice some degree of hearing loss during his employment, though by his own admission, it never affected his work. In January 2010, at age sixty-five, Mr. Adams had back surgery. His back problems were not work related, and he used accumulated vacation time during his recovery. During this time, Mr. Adams decided to retire. His retirement became official in January of 2011. In June of 2015, Mr. Adams filed the current workers' compensation claim, seeking SEB as a result of his alleged hearing loss.

"The purpose of [SEBs] is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident." Banks v. Industrial Roofing Sheet Metal Works, Inc. , 96-2840 (La. 7/1/97), 696 So.2d 551, 556. An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. Banks , supra at 556. "In determining if an injured employee has made out a prima facie case of entitlement to [SEBs], the trial court may and should take into account all those factors which might bear on an employee's ability to earn a wage." Daigle v. Sherwin-Williams Co. , 545 So.2d 1005, 1009 (La.1989) (quoting Gaspard v. St. Paul Fire and Marine Ins. Co. , 483 So.2d 1037, 1039 (La.App. 3 Cir.1985) ). It is only when the employee overcomes this initial step that the burden shifts to the employer to prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employee's community or reasonable geographic location. La. R.S. 23:1221(3)(c)(i) ; Banks , supra at 556 ; Daigle , supra at 1009.

Poissenot v. St. Bernard Parish Sheriff's Office , 09-2793, pp. 4-5 (La. 1/9/11), 56 So.3d 170, 174 (alterations in original) (footnote omitted).

"In determining whether a [workers' compensation judge's] finding that an employee has met his initial burden of proving entitlement to SEBs is manifestly erroneous, a reviewing court must examine the record for all evidence that bears upon the employee's inability to earn 90% or more of his pre-injury wages." Seal v. Gaylord Container Corp. , 97-688, p. 8 (La. 12/2/97), 704 So.2d 1161, 1166.

Retirement occurs for purposes of SEB entitlement when the worker "withdraws from the work force." Allen v. City of Shreveport , 93-2928 (La. 5/23/94), 637 So.2d 123, 127. "An employee who chooses pension benefits as opposed to returning to work has retired." Randazzo v. Boh Bros. Constr. Co. , 01-1953, p. 5 (La.App. 4 Cir. 3/27/02), 814 So.2d 671, 675, writ denied, 02-1162 (La. 6/14/02), 818 So.2d 783. "Moreover, an employee who expresses his intention to both retire, or stop working, and not look for other employment and who makes no effort to find another job has retired within the meaning of LSA-R.S. 23:1221." Id.

Determination of whether an employee has withdrawn from the work force for purposes of SEB is based on many factors, including age; the circumstances of each case control. Mason v. Auto Convoy , 27,444 (La.App. 2 Cir. 11/1/95), 662 So.2d 843, writ denied, 95-2905 (La. 2/2/96), 666 So.2d 1103. The "retirement" which restricts SEB payments is that based upon age or years of service, resulting in some type of pension, and does not refer to unemployment as a result of an employment-related injury. Margin v. Barthelemy , 93-2224 (La.App. 4 Cir. 5/17/94), 638 So.2d 291, writ denied , 94-2172 (La. 11/18/94), 646 So.So.2d 378.

I agree with the majority that the workers' compensation judge has laid out thorough and compelling reasons for judgment explaining her findings as to the extent and causation of Mr. Adams's hearing loss. The findings as to those issues were reasonably supported by the record. However, I note that the workers' compensation judge's reasons made no mention whatsoever as to Mr. Adams's wage earning capacity, which is a crucial component of an SEB award. In my view, the record shows that Mr. Adams failed to meet his burden of proving, by a preponderance of the evidence, that his hearing loss resulted in an inability to earn ninety percent or more of his average pre-injury wage under the facts and circumstances of the individual case.

Plainly put, it is my view that the record was devoid of any type of evidence concerning Mr. Adams's earning capacity, other than the fact that he desires an earning capacity of zero. While the record shows that Mr. Adams held several positions and acquired a large and diverse skill set during his forty years of work at Georgia Gulf, there was no evidence in the record to show that this skill set could not be put to use in a quieter facility, had Mr. Adams actually desired to do so. There is no testimony or affidavit from any vocation rehabilitation expert concerning Mr. Adams' potential earning capacity. While Mr. Adams testified that he earned roughly $50,000 in his final years at Georgia Gulf, nothing in the record shows that he is unable to earn ninety percent of that amount using his skills in quieter employment. To the contrary, the record shows that Mr. Adams had no desire to use his skill set for employment at all. The only evidence regarding Mr. Adams's earning capacity whatsoever indicates that he voluntarily left the workforce in 2010 for reasons completely unrelated to his hearing loss.

The evidence presented at trial shows that Mr. Adams did not leave work due to any reduction in his hearing, but that he simply chose to retire due to his age and his back. Mr. Adams' hearing loss was in no way a factor in his decision to retire, nor did it affect his ability to do his job, by his own admission. When he retired, Mr. Adams had no doctor preventing him from working or limiting his employment due to his hearing loss. In fact, Mr. Adams did not receive any type of employment limitations from a doctor due to his hearing until five years after he last worked at Georgia Gulf. Moreover, Mr. Adams testified that he had no desire to return to the work force after he retired, and that he had not sought any employment, of any kind, in the five years between his retirement and the trial. While he may have initially intended to work until the age of seventy, Mr. Adams himself made it perfectly clear that once he had stopped working due to his unrelated back surgery in 2010, he decided to completely leave the workforce. He stated that, after eight or nine months off work after the surgery, he "got to the age, [he] didn't want to go back, so [he] retired."

As noted above, the purpose of SEB is to compensate the injured employee for the wage earning capacity he has lost as a result of his work injury . Banks , 696 So.2d 551. It is my view that the record shows Mr. Adams has not lost any earning capacity due to his hearing loss. Because Mr. Adams had so obviously voluntarily retired, for reasons completely unrelated to his hearing loss , and because he had been retired for so long prior to trial, he has not and did not lose any wage earning capacity, let alone lose any such capacity due to his work injury . As such, I feel that the workers' compensation judge had no reasonable basis for its finding that Mr. Adams lost any portion of his wage earning capacity. Accordingly, I would find that he has failed to establish that he is entitled to SEB and would reverse the decision granting them.

Based on my view of the decision regarding SEB, I would also find that the workers' compensation judge erred in awarding Mr. Adams penalties and attorney fees.

      Liberty Mutual provided Georgia Gulf with workers' compensation coverage at the time of these proceedings.

      Mr. Adams had earned more in prior years, when he had worked frequent overtime. Mr. Adams testified he reduced those hours as he got older.

      Mr. Adams claims that "common sense" suggests that he could not earn ninety percent of his past wages. However, vague assertions of common sense are not, in fact, evidence.