author: THIBODEAUX, Chief Judge.

text:
    NCO PORTFOLIO MANAGEMENT, INC. v. Mary WALKER.
    No. 08-1011.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Gregory M. Eaton, April T. Pollet, Linda Louise Lynch, Eaton Group, LLC, Baton Rouge, LA, for Plaintiff/Appellee— NCO Portfolio Management, Inc.
    Alfred Smith Landry, Jr., Lafayette, LA, for Defendant/Appellant-Mary Walker.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

1 tThe trial court confirmed an arbitration award in favor of the plaintiff'appel-lee, NCO Portfolio Management, Inc. (NCO), and against the defendant/appellant, Mary Walker, for $17,594.59. The trial court then rendered a judgment against Ms. Walker in that amount. Ms. Walker appeals. We affirm.

I.

ISSUES

We must decide whether the trial court erred in confirming the arbitration award in favor of NCO and against Ms. Walker.

II.

FACTS AND PROCEDURAL HISTORY

Following an arbitration proceeding in August 2007, NCO was awarded $17,594.59 by the National Arbitration Forum (NAF), pursuant to the arbitration clause in an MBNA credit card agreement. According to the “Account Detail,” this amount represented a debtor balance and original claim amount of $11,268.65, and the remainder is presumably interest and fees. Ms. Walker’s last credit card payment was made on March 31, 2005, and was in the amount of $237.00. Ms. Walker did not attend the arbitration proceeding. The Account Detail shows Ms. Walker’s address as 1009 Albertson Parkway, Brous-sard, Louisiana 70518-5091. The arbitration “Award” in the record contains the same address. The cover letter, dated August 14, 2007, transmitting notification of the award to Ms. Walker indicates that it was | ¿mailed to her in care of James W. Schwing, Sr., 411 Iberia Street, New Iberia, Louisiana 70560, presumably Ms. Walker’s former attorney. The award certifies that it was sent to the parties at the shown addresses, or to their representatives. Ms. Walker has never alleged that she did not receive notice of the award or the petitions and pleadings filed by NCO.

The award further certifies that a claim was filed with NAF, that it was properly served upon the respondent, and that NAF sent her a second notice of the arbitration, as well as a hearing notice of the proceedings, and that all parties had had the opportunity to present evidence. The award also certifies that the matter was indeed arbitrable and had proceeded according to the forum’s code of procedure, that the evidence and substantive law supported issuance of the award, and that no party had asserted that the arbitration agreement was invalid or unenforceable.

On December 7, 2007, NCO’s attorneys wrote Ms. Walker describing the debt and offering to verify it and send her the name and address of the original creditor if different from the current creditor. The correspondence gave Ms. Walker the opportunity to dispute the validity of the debt or any portion thereof within thirty days. Ms. Walker failed to respond.

On January 17, 2008, NCO filed a document entitled “Petition to Confirm Arbitration Award.” The petition indicated NCO’s choice to proceed by ordinary process but specifically reserved its rights to summary proceedings pursuant to La.R.S. 9:4209. Service of the petition was requested upon Mary Walker at 1009 Albert-son Parkway, Broussard, Louisiana 70518-5091, and it was accompanied by a Request For Admissions of Fact.

On February 8, 2008, Ms. Walker filed a “Motion to Vacate Arbitration Award” along with a “Peremptory Exception of No Cause or Right of Action,” a-p,“Peremptory Exception of Prescription,” and an “Answer to Request For Admission of Fact.” Ms. Walker’s motion to vacate the award and her exception of no cause or right of action were identical. Both asserted that she had never entered into a contract with NCO; that NCO had no cause of action against her; that she had never received notice of the arbitration proceedings; and, that the award “in favor of MBNA” was made at a time when MBNA did not exist as a legal entity. Ms. Walker’s exception of prescription asserted that the plaintiff had failed to institute proceedings against her within three years of her last payment and that the arbitration and the action to confirm the award had prescribed.

On February 14, 2008, NCO propounded a “Request for Genuineness of Document and Request for Production of Document” attaching the card member agreement authorizing arbitration, the arbitration award, and notice of the award. Ms. Walker was asked to produce any documents which might indicate information other than that presented by the creditor. The record contains no responses to these requests.

Ms. Walker’s supporting memorandum in support of her exceptions denied a card member agreement with NCO or their assignors and demanded proof of NCO’s right to proceed against her. It contained no reference to evidence regarding her own agreement or her debt.

On April 7, 2008, NCO filed a document entitled “Motion and Memorandum to Confirm Arbitration Award and to Compel Discovery.” NCO’s motion asserted that Ms. Walker’s exceptions and motion to vacate were unsustainable where an arbitration award was entered in favor of NCO, giving NCO a right of action to have it confirmed. NCO’s motion further asserted that NCO, having obtained the award on August 13, 2007, and having filed its petition to 14confirm the award on January 17, 2008, had filed within the one-year, time limit for confirming an award.

NCO argued that Ms. Walker’s February 2008 motion to vacate the August 2007 award had prescribed in November 2007, because the motion to vacate had to be filed within three months of the date of the award. NCO further asserted that Ms. Walker’s responses to the Request for Admissions did not deny the agreement to arbitrate and did not deny that Ms. Walker did not timely file the motion to vacate, modify or correct the arbitration award. NCO further asserted that Ms. Walker had not provided any information in discovery to disprove the information that NCO had presented; nor did she respond to NGO’s request for genuineness of the notice of the arbitration proceedings, the arbitration award, or the award notice. NCO asserted that those issues are deemed admitted and that no further evidence is required of it. NCO further argued that Ms. Walker must allege sufficient facts to support her exceptions and affirmative defenses. NCO’s supplemental memorandum cited the substantive law and the statutes governing the arbitration process found at La.R.S. 9:4201, et seq.

On April 21, 2008, Ms. Walker’s attorney filed a “Motion to Traverse Setting of Hearing on Motion to Confirm and Exception of Lis Pendens.” The motion asserted that NCO had filed an ordinary proceeding, and that after Ms. Walker had filed exceptions and an answer to the ordinary proceedings herein, NCO ignored the answer and exceptions and asked for a summary confirmation of the award without “other formality and without rejecting or changing its earlier election to proceed by Ordinary Proceedings.” NCO filed a motion to overrule all of Ms. Walker’s exceptions, stating that the exceptions could be heard simultaneously with the motion to confirm the award, and therefore the exception of lis pendens was moot.

|5The trial court denied Ms. Walker’s exception of no right or cause of action and her exception of prescription. The trial court further found that Ms. Walker’s motion to vacate the award had prescribed and granted NCO’s motion to confirm the award. Ms. Walker then filed this appeal.

III.

LAW AND DISCUSSION

Standard of Review

Errors of law are reviewed de novo. Rosell v. ESCO, 549 So.2d 840 (La. 1989). Confirmation of an arbitration award is reviewed de novo. Sarofim v. Trust Company of the West, 440 F.3d 213 (5th Cir.2006). A district court’s review of an arbitration award is “extraordinarily narrow.” Downer v. Siegel, 489 F.3d 623, 626 (5th Cir.), cert. denied, 76 U.S. 3212, 3286, 3287, 128 S.Ct. 7212, 169 L.Ed.2d 555 (2007).

State and Federal Law on Arbitration

Louisiana has adopted the federal policy favoring arbitration. Aguillard v. Auction Mgmt. Corp., 04-2804, 04-2857 (La.6/29/05), 908 So.2d 1. Arbitration in this state is governed by the Louisiana Arbitration Law (“LAL”) found at La.R.S. 9:4201-4217. The Federal Arbitration Act (“FAA”) is located at 9 U.S.C. §§ 1-16. The United States Supreme Court has made it clear that the substantive provisions of the FAA pre-empt state law and govern all written arbitration agreements in contracts connected to transactions involving interstate commerce. Collins v. Prudential Ins. Co. of America, 99-1423 (La.1/19/00), 752 So.2d 825. “Whether a claim is brought in state court or federal court, and whether a claim is based on state or federal law, courts must enforce arbitration agreements in contracts covered by the FAA, notwithstanding any state statutory or jurisprudential rules to the contrary.” Collins, \ n752 So.2d. at 827 (citations omitted). The phrase “involving commerce” has been interpreted as the functional equivalent of “affecting commerce,” and the Supreme Court has concluded that Congress intended to exercise its commerce powers to the fullest in legislating in favor of arbitration. Id.

In the present case, with regard to the pertinent provisions, both the state and federal statutes under the FAA and the LAL contain identical or almost identical language addressing the issues under consideration. More specifically, both statutes provide that written agreements to arbitrate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” La.R.S. 9:4201; 9 U.S.C. § 2.

Both statutes provide that any party to the arbitration may apply to the court for an order confirming the award, at any time “within one year after the award is made” and that the court shall/must grant such an order “unless the award is vacated, modified, or corrected” as prescribed in the respective sections addressing vaca-ture and modification. La.R.S. 9:4209; 9 U.S.C. § 9.

The state and federal statutes list the same four grounds for vacating an award made by arbitrators following arbitration proceedings.

The grounds as listed in La.R.S. 9:4210 are as follows:

A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded them powers or so imperfectly executed them that a mutual, final, and 17defínite award upon the subject matter submitted was not made.

See also 9 U.S.C. § 10.

Notice of a motion to vacate, modify, or correct an award must be served upon the adverse party or his attorney “within three months after the award is filed or delivered.” La.R.S. 9:4213; 9 U.S.C. § 12.

Both state and federal statutes require that identical documentation be filed with the clerk when confirming, modifying, or correcting an award: (1) the agreement, the selection or appointment, if any, of an additional arbitrator or umpire, and each written extension of the time, if any, within which to make the award; (2) the award; and, (3) each notice, affidavit, or other paper used upon an application to confirm, modify, or correct the award, and a copy of each order of the court upon such an application. La.R.S. 9:4214; 9 U.S.C. § 13. The resulting judgment “shall be docketed as if it were rendered in an action” and “shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action, and it may be enforced as if it had been rendered in an action in the court in which it is entered.” La.R.S. 9:4214; 9 U.S.C. § 13.

Accordingly, “[arbitration is favored, and an arbitration award is res judicata. Unless grounds for vacating, modifying or correcting the award are established, the award must be confirmed, and the burden of proof is on the party attacking the award.” Louisiana Physician Corp. v. Lanison Family Health Ctr., L.L.C., 03-1721, p. 2 (La.App. 3 Cir. 4/7/04), 870 So.2d 575, 578; Chase Bank USA, N.A. v. Roach, 07-1172 (La.App. 3 Cir. 3/5/08), 978 So.2d 1103, 1104. “It is well settled in both state and federal courts that an award may be challenged only on the grounds specified in the statute. The court cannot substitute its conclusion for that of the arbitrator.” Firmin v. Garber, 353 So.2d 975, 977 (La.1977) (citations |somitted). The grounds for setting aside an arbitration award are specifically set out in La.R.S. 9:4210. Absent the existence of one of the specified grounds, a reviewing court is prohibited from reviewing the merits of an arbitrator’s decision. Louisiana Physician Corp., 870 So.2d 575; see also Allen v. A & W Contractors, Inc., 433 So.2d 839 (La.App. 3 Cir.), writ denied, 438 So.2d 578 (La.1983).

In the furtherance of the purpose and intention of arbitration as a substitute for litigation, the scope of judicial review as to the findings of an arbitrator is severely restricted, and courts have consistently respected this limitation. “Accordingly, a court does not ordinarily sit in an appellate capacity to an arbitration panel, but confines its determination to whether there exists one or more of the specific grounds for impeachment as provided under the applicable statute.” Town of Melville v. Safeco Ins. Co. of America, 94-1039, p. 8 (La.App. 3 Cir. 3/1/95), 651 So.2d 404, 409, writ denied, 95-0836 (La.5/5/95), 654 So.2d 333, quoting City of Sulphur v. Southern Builders, Inc., 579 So.2d 1207, 1210 (LaApp. 3 Cir.), unit denied, 587 So.2d 699 (La.1991).

Based upon the foregoing, NCO complied with the procedures outlined in the statutes for obtaining and confirming an award on the credit card debt of Ms. Walker. NCO went forward with arbitration proceedings and filed a motion to confirm the arbitration award, submitting the documentation required in La.R.S. 9:4214 and 9 U.S.C. § 13, the written arbitration agreement, the arbitration award, and appropriate affidavits. More specifically, NCO submitted the MBNA credit card agreement and amendments showing arbitration clauses almost identical to those described in Chase Bank USA, N.A. v. Roach, 978 So.2d 1103. NCO also submitted 1 flthe arbitration award, certifying that notices of the arbitration proceedings were properly provided to Ms. Walker and that all procedures were followed. NCO submitted affidavits describing the chain of command of Ms. Walker’s debt as it passed from MBNA to NCO through mergers and acquisitions. NCO timely brought its motion to confirm the award within one year of its issuance, pursuant to La.R.S. 9:4209 and 9 U.S.C. § 9, wherein it filed a petition to confirm in January 2008 and a motion to confirm in April 2008 after the award was issued in August 2007.

On the other hand, Ms. Walker’s actions consist of: failing to pay her credit card payments for two and a half years; failing to respond to correspondence and notices regarding the arbitration proceedings and NCO’s claims; failing to attend arbitration; failing to respond upon receipt of the award against her; failing to timely answer suit; and, failing to respond timely to the motion to confirm the award. When Ms. Walker finally filed her motion to vacate the award in February 2008, six months after it was issued in August 2007, she was well beyond the three month period prescribed in La.R.S. 9:4213 and 9 U.S.C. § 12 for bringing a motion to vacate.

| inMoreover, Ms. Walker’s motion to vacate did not assert any of the four grounds regarding fraud and arbitrator misconduct set forth in La.R.S. 9:4210 and 9 U.S.C. § 10. Additionally, Ms. Walker failed to provide substantiating evidence of any kind to support her exceptions or her motion to vacate. At trial, counsel for Ms. Walker addressed only a lis pendens exception, arguing that NCO had no light to proceed in a summary proceeding without dismissing the ordinary proceeding, even though the January petition to confirm and the April motion and memorandum to confirm were both filed under the same docket number and both pleadings referenced La.R.S. 9:4201, et seq.

Ms. Walker’s basis for this appeal is that the trial court confirmed the arbitration award against her without requiring admissible evidence of the existence of an agreement to arbitrate. The record reveals that this argument on insufficiency of the evidence is raised for the first time on appeal. Ms. Walker did not argue the evidence or the law at the trial of this matter, nor in her pre-trial briefs to the trial court. She did not cite one case or statute in support of her position; nor did she enter a single exhibit. Ms. Walker did not provide a copy of her credit agreement with MBNA, or present any evidence of her own to show the existence or nonexistence of an arbitration clause. Ms. Walker merely alleged in her February 2008 exceptions and motion to vacate the arbitration award that she had not agreed to an arbitration with NCO; however, she did not deny an agreement with MBNA.

In this case, where the record is void of evidence or argument that the MBNA agreement which contained binding arbitration language, and which was entered into evidence by NCO, was not the one delivered to Ms. Walker, or that it lnwas invalid due to adhesion, or that Ms. Walker’s consent was vitiated by some form of error, the arbitration agreement in evidence supports confirmation of the award against Ms. Walker. See Fontenot v. Southern Energy Homes, Inc., 07-1114 (La-App. 3 Cir. 3/5/08), 978 So.2d 549.

Ms. Walker argues for the first time that the three month limitation on filing a motion to vacate an arbitration award did not come into play until there was admissible proof of a valid agreement to arbitrate. On appeal, she cited NCO Portfolio Management Inc. v. Gougisha, 07-604 (La-App. 5 Cir. 4/29/08), 985 So.2d 731, writ denied, 08-1146 (La.9/26/08), 992 So.2d 986, for the proposition that the time limit imposed in the FAA for the debtor to vacate or modify the arbitration award does not come into play unless there is a valid written agreement to arbitrate. While we would of course clearly agree with the basic tenet that there must first be a valid agreement, we question a court’s allowance of a debt- or’s delayed challenge to validity and consent after arbitration proceedings are held and an award is issued and confirmation is sought. The very purpose of arbitration is to relieve the courts of unnecessary litigation.

We note that Gougisha, which has not been followed by other decisions, appears to be the only Louisiana case specifically holding that the validity of an agreement can be challenged after an award is issued and after the motion to vacate has prescribed. Further, Gougisha involved the consolidation of three credit card cases, and it is not clear from the facts whether all three defendants refused to respond or participate or object to arbitration until after confirmation of the awards were sought.

We also question the Gougisha court’s reliance on MCI Telecommunications Corp. v. Exalon Industries, Inc., 138 F.3d 426 (1st Cir.1998) |12where the court appears to misinterpret the FAA as requiring the party seeking arbitration to petition the court for an order enforcing the agreement, at which time the validity of the agreement would be determined. However, the section referenced is permissive, not mandatory. More specifically, MCI quotes Section 4 of the FAA in pertinent part and discusses it as follows:

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any ... district court ... for an order directing that such arbitration proceed in the manner provided for in such agreement.
9 U.S.C. § 4. Upon receipt of such a petition, the district court determines whether there was an agreement to arbitrate. If the existence of the agreement is not in issue, the court must proceed forthwith to make an order directing the parties to proceed to arbitration. In contrast, [i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. MCI’s position is that a party aggrieved by the failure ... of another to arbitrate may initiate arbitration on its own and prevail by default, rather than first seeking an order under section 4. But the focus of section 4 is on the party seeking arbitration, who must affirmatively petition for a court order enforcing the agreement. It is unlikely that Congress intended to allow the provisions of section 4 to be bypassed so easily.

MCI Telecommunications, Corp., 138 F.3d at 430 (emphasis added).

Accordingly, the MCI court appears to have a flaw in its logic. Section 4 permits (“may”) but does not require (“must”) a party to affirmatively petition the court for an order enforcing arbitration. Rather, the statutes indicate that a creditor my proceed directly to arbitration, where the arbitrators, at least the NAF used by the credit card creditors in the cases researched, certify that all advance notices of the claim and of the arbitration hearing, as well as any resulting award, were timely and properly sent to the debtor. Accordingly, based upon the facts in the present case, we decline to follow the fifth circuit’s reliance in Gougisha on the MCI case.

| iSIn response, NCO cites Spencer v. Hoffman, 392 So.2d 190 (La.App. 4 Cir. 1980), which specifically held that the judicial system is precluded from exercising jurisdiction once arbitration has commenced, except for a motion to vacate, modify or correct the award. However, in Spencer, both parties agreed to and participated in arbitration. Accordingly, while we agree with Spencer on the facts in that case, where the Louisiana Supreme Court has not spoken on this specific issue, we will not apply the broad holding in Spencer to the facts in the present case. In the present case, we find that Ms. Walker is precluded from challenging the sufficiency or admissibility of NCO’s evidence of the MBNA credit card agreement, containing the arbitration clause, on appeal when she was unresponsive prior to trial and failed to put on evidence or argue admissibility of NCO’s evidence at trial.

Ms. Walker further states that the trial court erred in “declaring that it did not have jurisdiction or authority to rule on whether an ‘Agreement to Arbitrate’ existed between Mary Walker and the original credit card account creditor.” This assertion confuses the issues and is without merit. The trial court did not “declare” that it had no jurisdiction to rule on the existence of an agreement to arbitrate between Ms. Walker and MBNA as this issue was not squarely before the court. While Ms. Walker made conclusory pre-trial assertions that she never entered into a contract with NCO, and that the award “in favor of MBNA” was made at a time when MBNA did not exist as a legal entity, Ms. Walker never specifically asserted that she did not enter into a contract with MBNA, which she clearly did because she used their credit card to amass debt, and the court had evidence of such transactions.

Further, the award was never “in favor of MBNA.” The award was in favor of NCO. Moreover, in response to NCO’s request for admissions, Ms. Walker did not deny that her credit agreement authorized the arbitration process, but rather | i4replied that “Any such Credit Agreement, and the validity thereof, speaks for itself.” The only credit agreement in evidence was the MBNA agreement provided by NCO, which did contain an arbitration clause.

The only other vague allusion to validity was in Ms. Walker’s one-and-a-half page memorandum in support of her pretrial exceptions. While the memorandum was void of legally supported arguments and contained mostly rhetorical questions for the court about the unfairness of credit card companies and their agreements in general, it did berate the card companies’ attempts to amend agreements at any time they wished. This reference to amendments was the only remark approaching a validity argument, and it was not supported in the memorandum or argued at trial. Notwithstanding, we note that a financial institution’s agreements with its customers may be amended if, following notice of a change in the terms of the agreement, the customer continues performance under the agreement. See Marsh v. First USA Bank, N.A., 103 F.Supp.2d 909 (N.D.Tex.5/23/00) (continued use of credit card after notice of amendments to terms of agreement were binding on card user; evidence was sufficient to raise presumption that holders received insert containing amendment to credit card agreement requiring arbitration).

The trial court did properly decline to address the merits of the dispute. It addressed Ms. Walker’s exceptions as if they had been brought to defeat the confirmation. In reality, they were brought to defeat the arbitration proceeding itself. More specifically, instead of addressing whether NCO was the proper party to seek recovery of the debt because Ms. Walker asserted that she never had a contract with NCO, the trial court found that NCO had a right of action by virtue of the award in its favor, which was admitted into evidence. As previously indicated, the ree-ord | ^contained the award in favor of NCO and the affidavit of an NCO representative explaining NCO’s acquisition of MBNA.

Likewise, the trial court declined to address Ms. Walker’s exception of prescription on Ms. Walker’s argument that NCO had failed to bring proceedings within three years from the date of Ms. Walker’s last payment. While untrue, that issue would have been in the province of the issues decided by the arbitrators. Instead, on the issue of prescription, the trial court found that NCO’s action had not prescribed because it brought the motion to confirm the award within the one-year prescriptive period beginning with the date of the award. We find no error on the part of the trial court in declining to address the merits of the dispute or in confirming the award in favor of NCO.

IV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court confirming the award against Ms. Walker and in favor of NCO Portfolio Management, Inc. and denying Ms. Walker’s exceptions of no cause of action, no right of action, and prescription. Costs of this appeal are taxed to the appellant, Mary Walker.

AFFIRMED.

      . NCO Portfolio Management, Inc. acquired ownership of MBNA's accounts payable and acquired electronic files from MBNA detailing the names, account numbers, and outstanding balances of MBNA credit card holders. The date of the acquisition is unknown. Following a January 2006 merger between MBNA Corporation and Bank of America Corporation, in June of 2006, MBNA America Bank, N.A. (the credit card division) changed its name to FIA Card Services, N.A.

      . There, Roach defaulted on her credit card payments to Chase Bank, and then, as in the present case, failed to respond to notices, failed to attend the arbitration proceeding, and failed to respond to the award until after Chase filed a motion to confirm the award. While the issue was venue in that case, we reversed the trial court’s denial of jurisdiction and confirmed the award. The credit card agreement in Chase, which contained almost identical language, stated:
      Arbitration: Any claim, dispute or controversy ("Claim") by either you or us against the other or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, including Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure in effect at the time of claim is filed. Rules and forms of the National Arbitration Forum may be obtained and Claims may be filed at any National Arbitration Forum office, www.arb-forum. com, or P.O. Box 50191, Minneapolis, Minnesota 55405, telephone 1-800-474-2371. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. 1-16. Judgment upon any arbitration award may be entered in any court having jurisdiction.

        Chase Bank USA, N.A., 978 So.2d at 1103-04.

      . The arbitration award in the record stated that, after obtaining proof of service of the claim against Ms. Walker, the arbitrator, National Arbitration Forum (NAF), sent Ms. Walker a second notice of arbitration and a hearing notice. The record also contained a letter from NAF to Ms. Walker and NCO, dated August 14, 2007, serving a copy of the award to Ms. Walker. Ms. Walker has not denied receipt of the letter or the award; nor has she alleged that her address was wrong on NCO's records.

      . In her memo in support of her exceptions, Ms. Walker denied being a party to a card member agreement with NCO "or their assignors.” However, she did not argue this issue at trial or deny the debt with MBNA. Her argument at trial focused on a lis pen-dens exception.

      . NCO brought the arbitration proceeding in August 2007, approximately two and a half years after the date of Ms. Walker's last payment in March of 2005. However, Ms. Walker cites no statute setting forth this three-year limitation, and research has discovered none within the FAA or the LAL.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Dana PATIN v. EVANGELINE DOWNS OF LOUISIANA, INC.
    No. CA 2008-988.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Alex L. Andrus, III, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, W. Glenn Soileau, Attorney at Law, Breaux Bridge, LA, for Plaintiff/Ap-pellee, Dana Patín.
    John W. Madison, Jr., Amanda E. Wad-dell, Wiener, Weiss, & Madison, Shreveport, LA, John S. Campbell, III, Matthew L. Mullins, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant, The Old Evangeline Downs, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

_JjAt issue in this appeal is the temporal element of La.R.S. 9:2800.6. Evangeline Downs of Louisiana, Inc. appeals a trial court judgment which found that it had constructive notice of a beet on the floor of its buffet restaurant, which caused Dana Patin to fall and injure herself. For the following reasons, we affirm.

FACTS

On Friday evening, July 16, 2004, Dana Patin and her family went to the Cajun Buffet at Evangeline Downs Racetrack and Casino. After waiting for fifteen to thirty minutes, they were finally seated. Ms. Patin served herself and her two daughters. She then went back to the vegetable line to get some tartar sauce. As she turned to go back to her table, her left foot slipped out from under her. Her left arm hit the granite counter top, and her left knee hit the floor. A lady helped her get up. Ms. Patin noticed a beet on the floor after she fell. Ms. Patin returned to her table. Her knee was bleeding, and a bruise later appeared on her left aim.

A busboy noticed the incident and notified the manager on duty, Chris Melancon. He came to check on Ms. Patin. Later, a security guard, Lisa Poole, came to talk to Ms. Patin. She took Ms. Patin to an office where a report was filled out.

On the way home, Ms. Patin’s left leg began to really hurt. Ms. Patin sought medical treatment, and eventually, surgery was performed on her back.

The case was tried before a judge on February 26, 2008. Applying La.R.S. 9:2800.6, the trial judge found that Ms. Patin had established that Evangeline Downs had constructive notice of the beet on the floor. Judgment was signed on March 4, 2008, awarding total damages in the amount of $304,956.84. Evangeline Downs filed the present appeal claiming that the trial court erred in finding it had constructive notice of the beet. Damages are not at issue.

^CONSTRUCTIVE NOTICE

Evangeline Downs argues that Ms. Pa-tin has failed to produce any evidence concerning the amount of time the beet was on the floor. It contends that she has not satisfied the temporal element of La.R.S. 9:2800.6 and has failed to carry her burden of proof.

Louisiana Revised Statutes 9:2800.6 sets forth the burden for proving a claim against a merchant for injury caused by a fall that occurs on the merchant’s premises. The statute specifically defines constructive notice as follows:

“Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

La.R.S. 9:2800.6(0(1).

In White v. Wal-Mart Stores, Inc., 97-393, p. 1 (La.9/9/97), 699 So.2d 1081, 1082, the supreme court discussed the temporal element of the constructive notice definition and held that a claimant must “come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence.” This temporal element can be established by circumstantial evidence. Blackman v. Brookshire Grocery Co., 07-348 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185; Cohen v. Brookshire Brothers, Inc., 04-916 (La.App. 3 Cir. 11/10/04), 887 So.2d 681, writ denied, 04-3041 (La.2/18/05), 896 So.2d 38; Henry v. Wal-Mart Stores, Inc., 99-1630 (La. App. 3 Cir. 3/1/00), 758 So.2d 327, writ denied, 00-929 (La.5/26/00), 762 So.2d 1107. The trier of fact’s finding that the plaintiff established the temporal element of constructive notice is subject to the manifest error/clearly wrong standard | aof review. Id.

The evidence was clear that Friday nights at the Cajun Buffet were the busiest because it was a seafood buffet. The buffet area seats about 275 people. This was established by the testimonies of Mr. Melancon and Ms. Poole in addition to Freída Carmouche, a buffet server. They all testified that food would spill on the floor.

At the time of the accident, Mr. Melan-con had been a shift supervisor in the buffet for seventeen days. He testified that it was usually the bussers’ job to keep the floor clean but everybody is supposed to watch for food on the floor on Friday nights. Mr. Melancon also testified that it was not uncommon to be shorthanded on weekends and, on this particular night, he was short one cashier, one server, and one busser.

Both Mr. Melancon and Ms. Carmouche testified that there were training and procedures in place about picking up spills immediately. Mr. Melancon remembered security telling him to check the floors every forty-five minutes, especially on Friday nights. However, he does not remember if inspections of the floor occurred on the night of Ms. Patins’ fall. He further testified that it could have been as long as one hour and forty-five minutes before the floor was inspected on Friday night. Mr. Melancon was of the opinion that there needed to be more staff on Friday nights due to the high volume of customers.

There was also testimony that there were mats by the cashiers’ station, the entrance into the busing area, and by the ice cream stand. However, there were no mats next to the buffet line. The floor near the buffet line was a tile floor.

In ruling that Ms. Patin established Evangeline Downs had constructive notice of the beet on the floor, the trial judge found that an hour to an hour and forty-five minutes was an inadequate amount of time before an inspection was made. He also considered the lack of staff which contributed to the lack of adequate inspections.

14 Given the testimony at trial, we cannot say the trial judge’s conclusion was manifestly erroneous. It is clear that, on this particular night, the buffet was extremely busy. Food would obviously be spilled on the floor, and we agree with the trial judge that an hour and forty-five minutes is an extremely long time to wait in between inspection of the floors. Ms. Patin clearly met her burden of proof that the beet was on the floor for an unreasonable amount of time. We do not agree that Ms. Patin has to actually show how long this particular beet was on the floor. If that was so, then there would be no need for constructive knowledge. Ms. Patin has established that inspection procedures on this particular Friday night in addition to an inadequate staff contributed to food remaining on the floor longer than reasonable.

For the above reasons, we affirm the ruling of the trial court. All costs of this appeal are assessed to Evangeline Downs of Louisiana, Inc.

AFFIRMED.


author: GREMILLION, Judge.

text:
    Marvin W. BUXTON v. IOWA POLICE DEPT.
    No. WCA 2008-980.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Christopher Richard Philipp, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Iowa Police Dept.
    J. Bryan Jones, III, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, Marvin W. Buxton.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe workers’ compensation dispute before the court involves the Iowa Police Department’s (hereafter “Iowa”) denial of medical and indemnity benefits to former police officer, Mr. Marvin Buxton (“Bux-ton”). Initially, Iowa tried the matter and defended based upon Buxton’s refusal to submit to a toxicological screen for illicit drugs. The workers’ compensation judge ruled in favor of Iowa, but this court reversed and remanded. Buxton v. Iowa Police Dep’t, 06-1384 (La.App. 3 Cir. 3/7/07), 952 So.2d 922, writ denied, 07-0719 (La.6/1/07), 957 So.2d 176. Following trial, judgment was rendered in favor of Buxton. Iowa appeals, and we affirm for the reasons that follow.

FACTS

On May 7, 2004, Buxton was patrolling the Town of Iowa when a call for assistance came from the Lake Charles Police who were engaged in a high speed pursuit of a motorcyclist. This fugitive happened across Buxton’s path, who maneuvered his squad car to apprehend. In his dash around the car, the motorcyclist struck Buxton’s cruiser, causing what can only be described as minor damage. Buxton claimed that he was exiting the cruiser as the collision occurred, and that the door struck him on his head.

Buxton finished his shift approximately four hours later. His first presentation to a health care provider was to his family doctor, Dr. Young Bin Kang, who diagnosed Buxton with neck pain, headaches, and a left hand contusion on May 7, 2004. Buxton also complained of low back pain at that time.

Buxton saw Dr. Kang again on May 11, 2004, with continued complaints of headache, back pain and neck pain. He complained at that time of his pain | ¿progressing to the point of nausea on four occasions. On May 18, Buxton returned complaining of a knot on the back of his neck and headaches. Dr. Kang’s diagnosis on this occasion was again of neck and back pain and headaches.

The June 7 visit with Dr. Kang is of note because Buxton’s wife apparently urged that an MRI be performed in an attempt to see what was wrong with Buxton’s back. Dr. Kang did not feel that an MRI was warranted but decided to keep that in mind for the future. Buxton was showing improvement in his cervical complaints and headaches. He did have continued back pain, but sensory and motor function in his lower extremities were normal. In his June 11 visit with Buxton, Dr. Kang noted back pain and headaches, with complaints of nausea associated with the pain.

In the interim, Buxton resigned from the police department on advice of his defense counsel following an investigation of events that led to his plea of nolo con-tendere to malfeasance in office. Following his resignation on June 9, 2004, Buxton filed a claim for unemployment compensation on June 29, 2004. This was introduced into evidence at Buxton’s first trial, and subsequently reintroduced at the second trial, along with the remainder of the record from the first trial. In his unemployment claim, Buxton asserted that there was no reason he could not accept work at that time. However, records admitted at the first trial indicate that following the date of the accident, Buxton missed ten days from work.

Buxton continued to treat with Dr. Kang, who saw him again on August 16, 2004. On this visit, Buxton demonstrated low back complaints associated with sluggish deep tendon reflexes and diminished sensory and motor function. Dr. Kang was concerned by these findings and decided at this point to order the MRI. This test was performed, but Buxton did not return to see Dr. Kang to discuss the results. | oHowever, Dr. Kang did issue on his prescription pad a two-page note addressed, “To whom it may concern,” outlining the course of Buxton’s treatment, and advising the addressee that Buxton needed time to recover from the accident.

On April 26, 2005, plaintiff began treatment with Dr. Clark Gunderson, a Lake Charles orthopedic surgeon. Buxton’s complaints to Dr. Gunderson included neck pain, headaches and low back pain. He excused Buxton from work and prescribed physical therapy and medications. Buxton returned to Dr. Gunderson one other time, on May 26, 2005. At that time, he was complaining of right leg pain, hip pain, and low back pain. No neck or head complaints are noted in that record. Dr. Gun-derson recommended that plaintiff undergo a CT myelogram and EMG of the right leg. These studies were apparently never performed; indeed, there is no further medical treatment indicated from May 26, 2005 to February 25, 2007.

On February 25 Buxton was injured when his vehicle collided with a cow. He sustained extensive injuries and was transported first to Lake Charles Memorial Hospital, then to LSU Medical Center in Shreveport for surgery to repair facial fractures. Buxton then went to Dr. Dale Bernauer, another Lake Charles orthopedic surgeon, with complaints of low back pain; leg pain, weakness and numbness; and neck pain referred into the shoulders and arms, with numbness and tingling in the arms. Dr. Bernauer ordered an MRI that demonstrated disc herniations at C3-4, C4-5, C5-6, C6-7, and L3-4. Dr. Ber-nauer opined that Buxton needs cervical

and lumbar fusions. Dr. Bernauer’s records were introduced at trial, but those records express no opinion connecting the need for surgery and the May 7, 2004 accident.

On September 27, 2007, Buxton again sought treatment with Dr. Gunderson. Dr. Gunderson reviewed the MRIs ordered by Dr. Bernauer, and concurred with the ^recommendation of cervical fusion, but thought further testing was required before he could recommend a lumbar fusion. However, he testified that Buxton is going to eventually require a laminectomy and fusion with pedicle screws.

At trial, the entire record of the previous proceeding was introduced, as was the deposition of Dr. Gunderson, the certified medical records of Buxton’s treatment at Lake Charles Memorial, and certified records reflecting Buxton’s treatment at LSU Medical Center in Shreveport. Following submission, the workers’ compensation judge rendered oral reasons in favor of Buxton, finding temporary total disability and ordering Iowa to provide medical treatment with Dr. Gunderson.

ASSIGNMENTS OF ERROR

Iowa appeals, urging that Buxton failed to carry his burden of proof and that the workers’ compensation judge erred in awarding temporary total disability benefits and medical treatment with Dr. Gun-derson for Buxton’s lumbar spine. Buxton appeals urging error on the part of the workers’ compensation judge in failing to award penalties and attorneys fees.

ANALYSIS

Medical treatment and indemnity: A hearing office’s decision that a claimant has met his burden of proof constitutes a factual determination. As such, this determination will not be overturned on review absent manifest error. An appellate court will set aside a factual finding by a hearing officer only if the record reveals there was no reasonable basis for the finding and that the finding was clearly wrong. Stobart v. State Through Dep’t of Transp. and Dev., 617 So.2d 880 (La. 1993). “In order to reverse a factual finding of a workers’ compensation judge, the appellate court must determine that a reasonable factual basis does not exist in the record to ^support the finding of the workers’ compensation judge and that the record establishes the finding is clearly wrong or manifestly erroneous.” Clay v. City of Jeanerette, 1999-1421, p. 6 (La. App. 3 Cir. 5/31/00), 768 So.2d 609, 612-13, writ denied, 00-2006 (La.10/27/00), 772 So.2d 124.

Louisiana Revised Statute 23:1221(l)(c) provides that an employee who seeks temporary total disability benefits must prove by clear and convincing evidence, without a presumption of disability, that he “is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.” Uncontradicted expert testimony regarding the underlying facts is not binding on the court, but may not be lightly disregarded by the judge. Morvant v. Smith, 463 So.2d 75 (La.App. 3 Cir.1985). “However, even expert testimony as to the ultimate facts, although uncontradicted, is not binding on the court.” Id., at 77.

Iowa’s appeal, while couched in terms of three assignments of error, essentially boils down to its contention that the treatment following the incident in which Buxton struck the cow was not causally related to the motorcycle collision. If the treatment following the cow crash is related to the motorcycle crash, Buxton is entitled to indemnity and medical treatment, for as the second circuit in Lemons v. Georgia Pacific Corp., 42,950, p. 6 (La. App. 2 Cir. 2/13/08), 976 So.2d 307, unit denied 08-0587, 08-0590 (La.5/2/08), 979 So.2d 1288, 1289:

The law is well settled that an aggravation of a work-related injury is regarded as compensable and as resulting from the initial work accident even though it occurs away from work and even after the employment is terminated. Kelly v. City of Neto Orleans, 414 So.2d 770 (La. 1982); |6 Hollingsworth v. East Baton Rouge Parish School Bd., 94,0518 (La. App. 1st Cir.12/15/95), 666 So.2d 376, writ denied, 96-0165 (La.3/15/96), 669 So.2d 422; Hanover Ins. Co. v. Allstate Ins. Co., 554 So.2d 1261 (La.App. 1st Cir.1989); Hughes v. General Motors Guide Lamp Division, 469 So.2d 369 (La.App. 2 Cir.1985). It would be a compensable injury for workers’ compensation purposes, and the employer would be obligated to continue paying benefits. Kelly, 414 So.2d 770; Stewart v. Hospitals Affiliates Int'l, Inc. of Baton Rouge, 404 So.2d 944 (La.1981).

Iowa contends that a comparison of the severity of the on-the-job accident with the collision with the cow leads to the conclusion that Buxton’s condition was the result of the latter. Indeed, the photographs of the police cruiser taken after the motorcycle struck it do demonstrate extremely minor damage to the car. The injuries sustained by Ms. Buxton after he hit the cow, on the other hand, were very severe, necessitating his transportation to the LSU Medical Center in Shreveport for surgery.

Iowa also points out that in his unemployment compensation claim, Buxton affirmed that there was no reason he could not work.

While a reviewing court might have reached a different result than the workers’ compensation judge did, unless this court can conclude that there existed no reasonable basis for the trier’s findings of fact, the Stobari test of manifest error is not met. Stobart, 617 So.2d 880. Dr. Gunderson’s uncontradicted testimony that Buxton’s lumbar injuries were aggravated by the collision with the cow forms a reasonable basis for the workers’ compensation judge’s ruling. That testimony is bolstered by Dr. Kang’s findings of consistent low back complaints and neurosensory deficits. Further, if the cow incident is an intervening and superceding cause of Bux-ton’s complaints — and it decidedly is with regard to his cervical condition — it would negate the affirmation by Buxton of being able to work contained in his unemployment compensation claim that greatly predated the cow incident.

|Penalties and attorneys fees: An employer or insurer must pay medical benefits within sixty days of receiving written notice thereof. La. R.S. 23:1201(E).

The first installment of compensation payable for temporary total disability, permanent total disability, or death is due on the fourteenth day after the employer or insurer gains knowledge of the injury or death, on which date all such compensation then due shall be paid. La. R.S. 23:1201(B). Failure to pay such benefits shall result in the imposition of a penalty; however, the penalty is not imposed if the claim is reasonably controverted or if nonpayment results from conditions over which the employer or insurer had no control. La. R.S. 23:1201(F)(2). When the employer or insurer produces factual or medical information of such a nature that it reasonably counters the claimant’s evidence, a claim is reasonably controverted. Davis v. Jones Baldwin Music Co., 27,545 (La.App. 2 Cir. 11/1/95), 662 So.2d 803. Nowlin v. Breck Const. Co., 30,622 (La.App. 2 Cir. 6/24/98), 715 So.2d 112. The decision to award penalties and fees is subject to an abuse-of-discretion standard. Id. When a claim is reasonably controverted, attorneys fees and penalties are not appropriate. Davis, 662 So.2d 803.

The court feels that Iowa did present evidence sufficient to reasonably counter Buxton’s claim. There was no treatment of Buxton for any of his complaints between May 26, 2005 and February 25, 2007. A comparison of the two collisions would provide a factual basis for reasonably controverting Buxton’s claim. Therefore, this court can find no error in the workers’ compensation judge’s denial of penalties and attorneys fees.

Buxton also seeks attorneys fees for the appeal. It would be incongruous to impose penalties or award attorneys fees in a situation in which both the employer | Rand employee appeal the workers’ compensation judge’s ruling and neither prevails. Costs of the appeal, however, are assessed against Iowa.

AFFIRMED.


author: SULLIVAN, Judge.

text:
    Lavan MERRITT, et ux. v. Thomas Michael BRENNAN, et al.
    No. 08-973.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.

      Edward P. Chevallier, Jr., Attorney at Law, Many, LA, for Plaintiffs/Appellees, Lavan Merritt, Debbie W. Merritt.
    William D. Dyess, Dyess Law Firm, LLC, Many, LA, for Defendants/Appellants, Thomas Michael Brennan, Kenneth W. Greer.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   SULLIVAN, Judge.

LThe defendants, Thomas Michael Brennan and Kenneth W. Greer, appeal a judgment of the trial court which rendered declaratory judgment in favor of the plaintiffs, Lavan Merritt and Debbie W. Merritt, declaring them to be the owners of a disputed tract of property; ordered the defendants to remove a fence and gate that had been built across the property; and awarded the plaintiffs trespass damages of $2,500.00 and attorney fees of $2,500.00. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

The property in dispute is located in Sabine Parish, Louisiana. The Merritts purchased a tract of land from Mrs. Merritt’s parents, Lynn and Nadine Wooley, in 1977. The Wooleys had acquired the property from one of Mr. Wooley’s relatives in 1971. In April of 2007, the defendants purchased a 7.67 acre tract of property adjacent to the Merritt’s property from Imogene Rogers. The property at issue in this dispute is a triangular shaped area of land where the two properties join near Louisiana Highway 191.

Sometime around August of 2007, the defendants began clearing portions of their property. Timber was removed from the disputed tract and a fence was constructed across a significant portion of the Merritts’ circular driveway. On September 18, 2007, the Merritts filed the instant suit against the defendants seeking trespass damages and a declaratory judgment declaring them to be the owners of the disputed tract of property. In their petition, the Merritts alleged that they and their ancestors in title had peacefully possessed the disputed tract for more than thirty years and that they were the legal owners of the disputed property.

|2A bench trial was held on May 23, 2008. Judgment was rendered on June 3, 2008, in favor of the plaintiffs, declaring them to be the owners of the disputed tract of property; ordering the defendants to remove the fence and gate that had been built across the property within seven days; and awarding the plaintiffs trespass damages of $2,500.00 and attorney fees of $2,500.00. The defendants now appeal. In their sole assignment of error, the defendants claim that the trial court erred in finding that the Merritts had proven acquisitive prescription of thirty years and in awarding them damages for trespass and attorney fees.

DISCUSSION

An appellate court may not set aside a jury’s or a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). “[WJhere there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. at 844. If the trial court’s findings “are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. Moreover, “[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Id.

laThis court discussed the concept of acquisitive prescription in Brooking v. Vegas, 03-1114, pp. 2-3 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, 372, writ denied, 04-0577 (La.4/30/04), 872 So.2d 491, stating:

“Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” La. Civ.Code art. 3446. “Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.” La.Civ.Code art. 3486. “For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.” La.Civ.Code art. 3487. “Acquisitive prescription is interrupted when possession is lost.” La.Civ.Code art. 3465. “The interruption is considered never to have occurred if the possessor recovers possession within one year or if he recovers possession later by virtue of an action brought within the year.” Id. “Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation.” La. Civ.Code art. 3433.
“When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles.” La.Civ. Code art. 794. “If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.” Id.
In discussing the burden of proof in an action to establish acquisitive prescription this court stated: It is well settled that the party pleading acquisitive prescription bears the burden of proving all of the facts that are essential to support it. The proof required to fix a boundary according to acquisitive prescription is the same proof required to prove ownership in a petitory action based on 30 year acquisitive prescription, i.e., continuous, uninterrupted, peaceable, public and unequivocal possession with a positive intention to possess as owner.
Mistric v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir.1992), writ denied, 612 So.2d 102 (La.1993).

In addition, this court has held that “[w]hether a party has possessed property for purposes of thirty year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong.” Phillips v. |4 Fisher, 93-928, p. 3 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, 1307, writ denied, 94-0813 (La.5/6/94), 637 So.2d 1056. See also Otwell v. Diversified Timber Servs., Inc., 04-924, p. 4 (La.App. 3 Cir. 1/26/05) 896 So.2d 222, 225, writ denied, 05-0467 (La.4/22/05), 899 So.2d 575.

Both of the Merritts testified at trial, as did Mrs. Merritt’s father, Lynn Wooley. Mr. Merritt stated that he and his wife had purchased approximately two acres of land along what is now Highway 191 from his in-laws in 1977. He and his wife had lived on the property since that time in a house that had been built in the 1940s by a member of his wife’s family. According to Mr. Merritt, the western boundary of his property was marked by an old fence that ran along a tree line, a boundary which had existed since the time he bought the property. Most of the old fence was destroyed in August of 2007 when the defendants bulldozed the area, cut down timber, and built a fence and gate. He stated that up until that time, his family had continuously used and maintained the disputed property. More specifically, he stated that he and his son regularly mowed the grass up to the fence line, that his family had parked their cars in the circular driveway located in the disputed area since they acquired the property, and that he regularly welded and worked on vehicles near the fence line on his days off from work. According to Mr. Merritt, the defendants did not give him any notice before clearing the disputed property and building the fence and gate.

Mr. Merritt identified several old photographs, some dating back to 1959, showing the fence which marked the disputed line, as well as several photographs that he had taken more recently from the same vantage points. He also identified several photographs which he took in the summer of 2007 showing sections of the old fence. Finally, he identified photographs depicting the new fence and gate that had been Inbuilt by the defendants across the disputed property. All of the photographs were entered into evidence.

When asked about a survey that had been commissioned by Mrs. Rogers from Kenneth Murphy in 2001 when she bought the property adjacent to his, Mr. Merritt acknowledged knowing that a survey had been done and that stakes had been put down across his property. He explained, however, that he did not file a lawsuit at that time because he was able to continue using the property as he had always done. With regard to damages that he had suffered as a result of the defendants’ trespass on his property, Mr. Merritt testified that his parking area had been reduced by 75%, that the use of his yard had been reduced, and that he had been prevented from using his circular driveway, the driveway that he used most frequently.

Mrs. Merritt testified that she remembered the old fence line from when she was a young child. She stated that she and her husband had always disagreed with the property line depicted in the Murphy survey. Nevertheless, she reiterated that because she and her family continued to use the property as they always had, she and her husband had not filed a lawsuit contesting the ownership of the disputed property at that time. She stated that this lawsuit was filed when the defendants built the fence across her land. Mrs. Merritt testified that as a result of the defendants’ trespass, her family had lost the use of one of their driveways, most of their front yard, and part of their side yard.

Mr. Wooley confirmed that in the late 1940s, his brother had built the house in which the Merritts had lived since they bought the property from him. He stated that the house had originally “set up square with the old original gravel road.” When shown the 1959 photographs, Mr. Wooley identified the old fence. He stated that he |fiwas seventy-five years old and that he remembered the old fence being in that location from when he was five or six years old because it had been his job to patch the fence to keep hogs out. He noted that the gravel road was considerably further out from the Merritts’ property back then, as opposed to where Highway 191 had been built.

Mrs. Rogers was called as a witness on behalf of the defendants, along with Rita Ann Rogers Randolph, and the defendant, Mr. Brennan. Mrs. Rogers testified that when she and her husband bought some property next to the Merritts’ property in 2001, they had it surveyed by Mr. Murphy. She stated that property was staked after the survey. She recalled a conversation that she had had with Mr. Merritt wherein she offered to sell him the land where his driveway was located, but he had declined her offer. Mrs. Rogers admitted, however, that she had never threatened legal action against the Merritts to get off of what she considered to be her land.

Mrs. Randolph also testified on behalf of the defendants. She was familiar with the land in dispute because it adjoined her grandfather Rogers’ property where she had played as a child. She was fifty-nine years of age at the time of trial. When asked about whether she remembered an old fence cutting across the contested property, Mrs. Randolph denied ever seeing an old fence. She stated that she used to run across the properties barefoot, and she never saw a fence or stepped on any barbed wire fencing. Using the pictures that had been submitted as exhibits by the Merritts, the trial judge intensely questioned Mrs. Randolph in an attempt to pinpoint the exact location of where she played as a child.

|7The last witness to testify was Mr. Brennan. He stated that he had a survey done by Douglas Dockens before purchasing the land from Mrs. Rogers in May of 2007. That survey placed the property line across the Merritts’ front yard and driveway. According to Mr. Brennan, he and Mr. Merritt had a discussion about the Merritts buying the disputed property, and Mr. Merritt told him that he “wasn’t interested.” He stated that when he started clearing the land, he never saw an old fence line or wire. When questioned about why he decided to fence off the Merritts’ driveway while not fencing off the rest of his property, Mr. Brennan stated that he knew that the Merritts were contesting his ownership of the disputed property and that because of “inquisitive prescription,” he had “[t]o bring this thing to head” before thirty years.

In ruling in favor of the Merritts, the trial court stated that it was:

[T]hroughly [sic] convinced that there was an old fence going down the side of the drive as depicted in P-6. The location of the home, the age of the home, how it is situated in relation to the old highway and the new highway, with the existing circular drive, the Court finds that it was more than thirty years possession by the Merritts and certainly much more [by] their ancestors in title.

The defendants assert that the Merritts failed to prove that they had continuous, uninterrupted possession of the disputed land. They argue that the Merritts did not have continuous, uninterrupted possession of the land after the Murphy survey was conducted and stakes were put across what they claimed was their land in June of 2001. The defendants submit that, from that point on, the Merritts knew that the property did not belong to them and that they only occupied the property with Mrs. Rogers’ permission, as opposed to occupying the property as owners as required by law.

[jjThe Merritts counter that, despite their knowledge of the Murphy survey, they always contested the proper boundary line between the two properties. Moreover, the Merritts submit that the trial testimony proved that they and then-ancestors in title had continuously used and occupied the disputed tract of land, up to the old fence line, for over seventy years.

As previously noted, whether a party has possessed property for purposes of thirty-year acquisitive prescription is an issue of fact to be determined by the trial court which should not be disturbed on appeal unless it is clearly wrong. The Merritts presented testimony and photographic evidence showing that they and them ancestors in title possessed the property in question, as marked by an old fence line at the edge of a clearing, for more than thirty years. Moreover, we conclude that the testimony proved that the Mer-ritts always believed that they were the true owners of the disputed property and that they maintained possession of the disputed property up until the time that the defendants fenced them out. None of the testimony elicited by the defendants directly or conclusively contradicted the evidence presented by the Merritts.

Given the applicable standard of review, we cannot say that the trial court erred in finding that the Merritts had met them burden of proving all the facts necessary to entitle them to be declared the owners of the disputed property on the basis of acquisitive prescription. In light of this finding, we likewise find no error in the trial court’s having awarded the Mer-ritts $2,500.00 for the damages that they testified to having sustained as a result of the defendants’ trespass on their property. We reverse the trial court’s award of attorney fees, however, because the record contains no evidence of a statute or contract authorizing the award of attorney fees under the | flrircumstances present in this case. Booth v. Madison River Commc’ns, 02-0288 (La.App. 1 Cir. 6/27/03), 851 So.2d 1185, writ denied, 03-2661 (La. 12/12/03), 860 So.2d 1161.

DECREE

For the foregoing reasons, the portion of the trial court’s judgment awarding Lavan and Debbie W. Merritt attorney fees in the amount of $2,500.00 is reversed. The judgment is affirmed in all other respects. Costs of this appeal are assessed to Thomas Michael Brennan and Kenneth W. Greer.

AFFIRMED IN PART AND REVERSED IN PART.

      . It is unclear from the record whether Mrs. Randolph is related to Mrs. Imogene Rogers.


text:
    ACADIAN AMBULANCE SERVICE, INC. v. Nancy A. PESHOFF.
    No. WCA 08-937.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Marcus Miller Zimmerman, Attorney at Law, Lake Charles, LA, for Plaintiff/Ap-pellee, Nancy A. Peshoff.
    Kevin Wade Trahan, Ottinger, Hebert, L.L.C., Lafayette, LA, for Defendant/Appellant, Acadian Ambulance Service, Inc.
    Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| iThis workers’ compensation matter involves the attempt by the employer, Acadi-an Ambulance Company (Acadian), to terminate the benefits of the employee, Ms. Nancy A. Peshoff, for willfully making a false statement or misrepresentation for the purpose of obtaining a benefit or payment pursuant to La.R.S. 23:1208(A). The workers’ compensation judge ruled in favor of Peshoff in denying the termination of benefits, yet found that she was not entitled to reimbursement for 88 trips (eleven miles roundtrip) to the pharmacy over a six-month period. This court affirms.

FACTS

Peshoff was employed as a paramedic by Acadian when she was injured on the job. The particulars of the on-the-job incident are not controverted. As part of her treatment, Peshoff received a number of prescriptions. These were filled at a Wal-Mart pharmacy located approximately 5.5 miles from Peshoffs home. For purposes of obtaining reimbursement of her mileage, Peshoff maintained a calendar in which she wrote, “WM,” on the dates she went to Wal-Mart to drop off or pick up a prescription. In January 2006, Peshoff completed a mileage voucher seeking reimbursement for various trips to Wal-Mart and her doctors for the period of November 2004 through January 2006.

Acadian noted that beginning in August 2005, Peshoff began making trips to Wal-Mart far more frequently. A review of the record, and in particular the mileage voucher and the certified records from the Wal-Mart pharmacy, demonstrates that there was indeed a sizeable increase in the frequency with which Peshoff claims she presented to the pharmacy. From November 2004 to July 2005, she averaged 9.9 trips per month to Wal-Mart to fill an average of 10.9 prescriptions. Beginning August | ¿2005 to November 2005, though, she averaged 22.2 trips to fill an average of 8.8 prescriptions. Peshoff testified that she made these trips because during this period Acadian was slow to authorize the filling of the prescriptions. Acadian, on the other hand, argued that Peshoff did not make the trips.

ANALYSIS

Louisiana Revised Statute 23:1203(D) requires an employer to reimburse the employee at the rate paid by the State of Louisiana for reimbursement of state employees for mileage reasonably and necessarily traveled in order to obtain medical care or medicine. Peshoff submitted a voucher asking Acadian to reimburse her for such travel. The startling increase in number of trips she claimed to the pharmacy prompted Acadian to question and ultimately deny reimbursement for them. The workers’ compensation judge determined that Peshoff was not entitled to reimbursement for the trips.

Acadian took this a step further, though, and sought to have Peshoffs benefits declared forfeit under La.R.S. 23:1208, which reads in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

A violation of § 1208 occurs when: “(1) there is a false statement or representation, (2) it is willfully made, and (3) it is made for the purpose of obtaining or defeating any benefit or payment.” Reswe ber v. Haroil Constr. Co., 94-2708, p. 7 (La.9/5/95), 660 So.2d 7, 12. The workers’ compensation judge’s finding of a |svioIation of § 1208 is subject to review under a manifest error standard. Cajun Rental & Servs. v. Hebert, 05-482 (La.App. 3 Cir. 12/30/05), 918 So.2d 605. The same standard of review governs a finding of no violation of § 1208. Frederick v. Port Aggregates, Inc., 07-552 (La.App. 3 Cir. 10/31/07), 968 So.2d 1169. This standard requires that this court find an absence in the record of a reasonable basis for the workers’ compensation judge’s factual findings, and a determination that the record establishes that the finding was clearly wrong. Stobart v. Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993).

The workers’ compensation judge found simply that Peshoff did not violate § 1208. The record demonstrates that there is a reasonable basis for this finding. Peshoff testified that she documented her trips to the pharmacy on a calendar that was admitted into evidence. Additionally, she explained that there was a delay in the authorization of her prescriptions by Aca-dian. Also, without objection, a letter dated November 2005 from Peshoff s former attorney to Mr. Ricky Hayes, Claims Manager of F.A. Richard & Associates, Acadian’s third party administrator, was introduced into the record. That letter complained of the delays in authorizing the prescriptions. The timing of this letter coincides with the increase in Peshoff s trips to Wal-Mart. Mr. Hayes testified that there were difficulties in authorizing prescriptions for Xanax in particular. This was corroborated by the testimony of Acadian’s risk manager, Mr. Keith Charles Guidry. No testimony or other evidence was introduced to demonstrate that Peshoff did not actually make the trips in question, and neither Mr. Guidry nor Mr. Hayes had any knowledge that no trips were taken.

CONCLUSION

In short, there exists only the inference that because no prescriptions were |4filled on 88 occasions during this six-month period, no trip was actually made. While this court may well accept this inference as reasonable, this court’s findings are based upon an antiseptic review of the record, without the benefit of actually hearing the testimony of the witnesses and the opportunity to assess credibility. Such a substitution of our assessment of the testimony is not permitted. The mere fact that a number of trips to the pharmacy was not necessary does not equate to a willful misrepresentation about whether they were actually traveled. Thus, there was no manifest error in the finding that Peshoff did not violate § 1208.

Accordingly, the judgment of the workers’ compensation judge is affirmed, with all costs of appeal assessed against appellant, Acadian Ambulance Company.

AFFIRMED.


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Tommy BORDELON.
    No. 08-935.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2009.
    Rehearing Denied March 18, 2009.

      James E. Beal, Attorney at Law, Louisiana Appellate Project, Jonesboro, LA, for Defendant-Appellant, Tommy Bordelon.
    Michael F. Kelly, First Assistant District Attorney, Office of the District Attorney, Marksville, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| defendant, Tommy Bordelon, appeals the sentence on his conviction (as a habitual offender) for car jacking, a violation of La.R.S. 14:64.2. Finding that Defendant’s sentence is improper as having occurred in the wrong docket number, we vacate Defendant’s sentence and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On June 3, 2003, Defendant was convicted of car jacking in the Twelfth Judicial District Court, docket number 117,139. He was adjudicated a third felony habitual offender in trial court docket number 118,-447 on August 29, 2003, and sentenced to twenty-five years at hard labor. Defendant’s conviction and sentence were affirmed on appeal. State v. Bordelon, an unpublished opinion bearing docket numbers 04-490 and 04-491 (La.App. 3 Cir. 2/2/05) 895 So.2d 81, writ denied, 05-959 (La.4/17/06), 926 So.2d 500.

Defendant’s conviction for stalking, which occurred after Defendant pled guilty to stalking on January 25, 1999, in the Twenty-Fourth Judicial District Court, docket number 98-4883, was used to support his adjudication as a third felony offender. Defendant appealed this conviction to the Louisiana Fifth Circuit Court of Appeal, and on October 1, 2007, the fifth circuit found that Defendant’s conviction for stalking was a misdemeanor and remanded the matter to the Twenty-Fourth Judicial District Court and ordered the district court to correct the minute entry and commitment order to reflect that Defendant pled guilty to a misdemeanor and not a felony.

|2On October 25, 2007, Defendant filed a “Motion to Correct An Illegal Sentence” in trial court docket number 117,139. Therein, he alleged that his sentence was illegal because one of the predicate offenses used to enhance his sentence for car jacking was found to be a misdemeanor. At a hearing held in trial court docket number 117,139 on November 13, 2007, the trial court noted that Defendant had committed two felonies and granted the motion.

On May 1, 2008, the trial court sentenced Defendant in trial court docket number 117,139 to twelve years at hard labor without benefit of probation or suspension of sentence as a second felony offender pursuant to La.R.S. 15:529.1. An oral motion to reconsider sentence was made and denied.

A Motion for Appeal was filed in trial court docket number 117,139 on May 12, 2008, and granted. An Amended Motion for Appeal was filed on June 17, 2008. Therein, defense counsel sought to have trial court docket number 118,447, the docket number in which the habitual offender proceedings were held, included in the appeal. The judge denied the motion, asserting that he had only been appointed to hear matters in trial court docket number 117,139.

Defendant is now before this court asserting two assignments of error. Therein, he contends that: 1) he has been sentenced as a second felony habitual offender without ever having been so adjudicated; and 2) the official court minutes and commitment order, which deny him parole eligibility, are inconsistent with the sentence pronounced in open court. Defendant has also filed a pro se brief in which he asserts the following four assignments of error: 1) the trial court erred when it | ^failed to hold a readjudication hearing prior to resen-tencing to determine his offender status after the original multiple offender adjudication was defective; 2) the trial court erred when it failed to rule on his pro se motion to reconsider sentence; 3) the trial court erred in failing to hold an evidentia-ry hearing on his pro se motion to quash; and 4) Defendant asks this court to review • the record for errors patent.

For the following reason, namely a procedural irregularity which renders the sentence improper, we will not consider these assignments of error and vacate Defendant’s sentence and remand the matter to the trial court for further proceedings.

DISCUSSION

Defendant was adjudicated a habitual offender in trial court docket number 118,-447 and subsequently sentenced. Defendant filed his Motion to Correct Illegal Sentence in trial court docket number 117,139. The motion was subsequently granted by the trial court, and Defendant was found to be a second offender and sentenced in that docket number. We find that the motion to correct Defendant’s sentence was filed in the incorrect docket number, as no sentence had been imposed in trial court docket number 117,139. Additionally, the resentencing occurred in the incorrect docket number. The motion should have been filed and the resentenc-ing should have taken place in trial court docket number 118,447 since that was the docket in which the habitual offender adjudication occurred. As Defendant was sentenced in the incorrect docket number, his sentence is not proper. Therefore, Defendant’s sentence must be vacated and the matter remanded to the trial court for further proceedings consistent with this opinion. For this reason, we do not reach Defendant’s assignments of error.

| .DECREE

Defendant’s sentence was improper as it occurred in the incorrect docket number. Therefore, we vacate Defendant’s sentence and remand the matter to the trial court for further proceedings.

SENTENCE VACATED AND REMANDED.

      . By order dated March 26, 2008, Judge Arthur Planchard was assigned judge ad hoc by the supreme court to hear and dispose of the matter entitled " 'State of Louisiana vs. Tommy Bordelon, No. 117,139-A ... subject to the completion of any unfinished business.”