text:
    OCWEN LOAN SERVICING, LLC v. The Unopened Succession of Marjorie PORTER and Sandie Parkman
    NO. 2018-C-0187
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 23, 2018
   Sherri L. Hutton, Law Office of Sherri L. Hutton, 700 Camp Street, New Orleans, Louisiana 70130, and Ali Dehghannezhad, Law Office of Ali Deghan, LLC, 700 Camp Street, New Orleans, Louisiana 70130, COUNSEL FOR DEFENDANT/RELATOR

Stephen D. Marx, Cherhardy, Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLP, One Galleria Boulevard, Suite 1100, Metairie, Louisiana 70001, COUNSEL FOR PLAINTIFF/RESPONDENT

(Court composed of Judge Terri F. Love, Judge Edwin A. Lombard, Judge Roland L. Belsome )

Judge Terri F. Love The instant dispute arises from the default of an alleged mortgage. Ocwen Loan Servicing, LLC ("Ocwen") sought declaratory relief recognizing the validity of a mortgage against Sandie Parkman ("Ms. Parkman") and the unopened succession of her mother Marjorie Porter ("Ms. Porter"). Ms. Parkman seeks supervisory review of the trial court's judgment denying her exception of no cause of action. We find the mortgage is invalid on its face. Even if the mortgage was valid, it is not enforceable against Ms. Parkman because Ocwen cannot prove that Ms. Parkman agreed to allow her mother to encumber the entire property with the mortgage. Thus, we find the trial court erred in denying the exception of no cause of action. Accordingly, the writ is granted; the trial court's judgment is reversed, and the matter is remanded pursuant to La. C.C.P. art. 934 to allow Ocwen an opportunity to amend its petition, if it can, in order to set forth a cause of action.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

In 1976, Ms. Porter acquired full ownership of the property in question through a community property settlement between herself and her ex-husband. In 2001, Ms. Porter executed an act of donation, which was proper in all respects, donating one-half interest in the property to her daughter Ms. Parkman. On September 22, 2003, Ms. Porter allegedly executed a mortgage on the property that she and her daughter owned jointly. Six days after the mortgage was signed, Ms. Parkman attempted to donate her one-half interest in the property to her mother. However, Ms. Porter never accepted the donation. Ms. Porter died in December 2013.

In July 2017, Ocwen filed a petition for declaratory judgment recognizing the validity of the mortgage executed by Ms. Porter. Ocwen named as defendants Ms. Parkman and the unopened succession of her mother Ms. Porter. Ms. Parkman filed an exception of no cause of action, claiming her mother did not have one hundred percent interest in the property when the mortgage was executed and did not have authority to encumber the property with the mortgage. Ms. Parkman also asserted that the mortgage was invalid because it lacked a legal description of the property and that her attempted donation to her mother in 2003 was invalid because Ms. Porter never accepted the donation.

A hearing was held on the exception, and the trial court rendered judgment denying the exception of no cause of action. Ms. Parkman timely filed the present application for supervisory review.

STANDARD OF REVIEW

In Herlitz Const. Co., Inc. v. Hotel Inv'rs of New Iberia, Inc., 396 So.2d 878 (La.1981), the Supreme Court established factors which should be considered in determining whether to grant supervisory review of interlocutory judgments:

When the overruling of the exception is arguably incorrect, when a reversal will terminate the litigation, and when there is no dispute of fact to be resolved, judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits. See Mangin v. Auter , 360 So.2d 577 (La. App. 4th Cir. 1978).

Herlitz, 396 So.2d 878.

The primary consideration under Herlitz is whether review and decision would result in a final disposition of all issues in a case.

Dupuy Storage & Forwarding, LLC v. Max Speciality Ins. Co. , 2016-0050, pp. 9-10 (La. App. 4 Cir. 10/5/16), 203 So.3d 337, 344. Since judicial efficiency and fundamental fairness to the litigants dictates a decision on the merits, we grant the writ application and review the trial court's ruling.

Ms. Parkman contends that the trial court erred when it denied her exception of no cause of action because Ocwen has not set forth sufficient allegations to sustain a declaratory judgment that the mortgage is valid. An exception of no cause of action raises a question of law, and on appeal, the trial court's ruling is reviewed de novo . Boyd v. Cebalo , 15-1085, p. 2 (La. App. 4 Cir. 3/16/16), 191 So.3d 59, 61 (citing Winstead v. Kenyon , 15-0470, p. 6 (La. App. 4 Cir. 12/2/15), 182 So.3d 1087, 1091 ). Our de novo review "is limited to reviewing the four corners of the petition to determine whether on its face the petition states a cause of action." Id. "[A]ll well-pleaded facts in the petition are accepted as true for purposes of determining the issues raised by an exception of no cause of action. The mover bears the burden of proving that the petition states no cause of action; and de novo review does not take into consideration whether the party will be able to prevail on the merits." Id.

DISCUSSION

The petition alleges a valid mortgage was granted for the property belonging to Ms. Parkman and the unopened succession of Ms. Porter. However, a copy of the mortgage attached to the petition lacks a legal description of the property. The petition and the mortgage only reference the property by its municipal address. La. C.C. art. 3288 states that "[a] contract of mortgage must state precisely the nature and situation of each of the immovables or other property over which it is granted; state the amount of the obligation, or the maximum amount of the obligations that may be outstanding at any time and from time to time that the mortgage secures; and be signed by the mortgagor."

Ms. Parkman asserts that the lack of a legal description of the property over which the mortgage was granted in the contract of mortgage renders the mortgage invalid. Ocwen acknowledges that the mortgage lacks a legal description. It relies upon Quality Envtl. Processes, Inc. v. I.P. Petroleum Co., Inc. , 13-1582, 13-1588, 13-1703 (La. 5/7/14), 144 So.3d 1011, as support for its argument that the municipal address is sufficient for the validity of the mortgage.

As Ms. Parkman notes, Quality involved notice to third parties in a conveyance transaction, which is different from the issue in this case. The discussion in Quality examined the sufficiency of a property description in a conveyance deed for the purpose of notifying third parties through public record. The issue here involves the sufficiency of a property description for rendering a valid conventional mortgage. La. C.C. art. 3288 requires that the mortgage "state precisely the nature and situation of each of the immovables or other property over which it is granted." Additionally, La. R.S. 9:4831, provides for the recordation of contracts, liens and privileges under the Private Works Act, and states in pertinent part:

Each filing made with the recorder of mortgages pursuant to this Part which contains a reference to immovable property shall contain a description of the property sufficient to clearly and permanently identify the property. A description which includes the lot and/or square and/or subdivision or township and range shall meet the requirement of this Subsection. Naming the street or mailing address without more shall not be sufficient to meet the requirements of this Subsection.

La. R.S. 9:4831(C) (emphasis added). This Court has recognized that "[b]ecause of their very nature and function, security devices should be strictly construed." Durham v. First Guar. Bank of Hammond , 331 So.2d 563, 564 (La. App. 1st Cir. 1976) (citing Thrift Funds Canal, Inc. v. Foy , 242 So.2d 253 (La. App. 4th Cir. 1970) ).

We find Norman H. Voelkel Const. Inc. v. Recorder of Mortgages for E. Baton Rouge Par. , 02-1153 (La. App. 1 Cir. 6/27/03), 859 So.2d 9, is more analogous to the present case than Quality . In Norman , a contractor sought review of the trial court's denial of a mandamus to cancel a lien filed pursuant to the Private Works Act. The First Circuit reversed, finding that the party filing the lien did not comply with the statute because the description of the property was insufficient. The Norman court stated,

Under [ La. R.S. 9:4831(C) ], a municipal address is insufficient to perfect a privilege. Heck avers that describing the property as a located at the intersection Highland Road and Airline Highway, along with the store number is sufficient to perfect a privilege. We disagree. Liens and privileges are to be strictly construed against claimants and liberally construed in favor of owners as they are in derogation of the common rights of owners. [...] Therefore, Heck must comply with all necessary requirements of the statute it claims establishes a lien or privilege.

Id. , 02-1153, p. 5, 859 So.2d at 11-12. Like the lien in Norman , Ocwen seeks to establish the validity of the mortgage on the immovable property to recover monies allegedly not paid. As noted by the First Circuit, privileges should be strictly construed against claimants and liberally construed in favor of owners and all necessary requirements need to be complied with to affect such privileges. Additionally, as noted in the Civil Code articles on conventional obligations, any ambiguity or vagueness in a contract should be construed against the party who drafted the contract. La. C.C. art. 2056 ; Centanni v. A.K. Roy, Inc. , 258 So.2d 219 (La. App. 4th Cir. 1972).

Accordingly, Ocwen's failure to include a legal description of the immovable property in the mortgage prevents Ocwen from stating a cause of action for a judgment declaring the mortgage to be valid. The mortgage cannot be valid without a legal description of the property. Ocwen's attempt to remedy this defect by filing an Act of Deposit in 2018, attaching a legal description to the mortgage, in the mortgage and conveyances records is insufficient and untimely. The Act of Deposit was not attached to the petition. Thus, this Court cannot consider the document in determining the merits of the exception of no cause of action. La. C.C.P. art. 931.

Ms. Parkman also argues that the petition fails to assert a cause of action because the petition and attached documents do not show that her mother acquired ownership of the entire property at the time the mortgage was executed. In opposition, Ocwen contends that the doctrine of after acquired title applies to the present matter and cures any alleged defect in title. These arguments call into question the validity of Ms. Parkman's attempted donation of her one-half interest in the property to Ms. Porter. Therefore, we address the validity of the 2003 donation inter vivos .

A donation inter vivos is a "contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it." La. C.C. art. 1468. Pursuant to La. C.C. art. 1541, "[a] donation inter vivos shall be made by authentic act under the penalty of absolute nullity." In order for a donation inter vivos of immovable property to be valid, the parties must comply strictly with codal articles, and the act must be passed before a notary public and two witnesses. Sarpy v. Sarpy , 354 So.2d 572, 574 (La. App. 4th Cir. 1977).

Additionally, acceptance of the object offered must be made by the donee during the donor's lifetime and by authentic act (the form required for donations), either in the act of donation or subsequently in writing. La. C.C art. 1544. The Civil Code provides two exceptions to the rule that inter vivos gifts be made by authentic act, the application of which depends on whether the object of the donation is a corporeal or incorporeal movable. La. C.C. art. 1550 sets forth the exception that applies to incorporeal movables like the property at issue here.

Ms. Parkman donated her one-half interest in the property to Ms. Porter on September 28, 2003. However, Ms. Porter never executed an acceptance of the donation. Ocwen contends Ms. Porter's execution of the mortgage in which she stated she owned one hundred percent interest in the property on September 22, 2003, constituted a tacit acceptance of the donation. This argument fails because Ms. Parkman had not yet donated her interest in the property at the time Ms. Porter signed the mortgage documents.

The cases Ocwen relies upon are distinguishable. In First Fed. Sav & Loan Ass'n of Warner Robins, Ga. v. Delta Towers, Ltd. , 544 So.2d 1331 (La. App. 4th Cir. 1989) and Tri-State Bank & Tr. V. Moore , 609 So.2d 1091 (La. App. 2 Cir. 1992), the parties ratified the earlier mortgages in subsequent documents. In the case at bar, Ms. Porter attempted to execute a mortgage prior to the act of donation. At the time the mortgage was signed, Ms. Parkman had not yet donated her interest in the property to her mother. Thus, Ms. Porter could not accept a donation that she had not yet been given.

Ocwen also suggests that Ms. Porter tacitly accepted the donation by paying on the mortgage note, and as a result, obtained full one hundred percent interest in the property after the mortgage was executed. However, acceptance of a donation of immovable property must comply with the requirements of an authentic act. Ms. Porter did not obtain full one hundred percent ownership of the property, and the doctrine of after acquired title does not apply to cure the defects in title.

Finally, Ocwen contends that at the very least there is a valid mortgage over one-half of the property. According to La. C.C. art. 805, "[a] co-owner may freely lease, alienate, or encumber his share of the thing held in indivision." See also McSwain v. Bryant , 503 So.2d 605, 607 (La. App. 4th Cir. 1987). However, as noted above, there is no valid mortgage on the property because of the failure to include a legal description of the property.

Ocwen suggests that Ms. Parkman cannot argue that the mortgage is invalid because that defense is personal to Ms. Porter. Ocwen claims that because Ms. Parkman did not sign the mortgage, she does not have standing to argue that the mortgage is invalid. However, Ocwen initiated the present lawsuit against Ms. Parkman, naming her, individually, as a defendant. Ocwen seeks declaratory judgment, recognizing the validity of the mortgage over the entire property and finding Ms. Parkman and the unopened succession of her mother liable to Ocwen. As owner of at least one-half of the property in question, Ms. Parkman has a right to contest the validity of the mortgage.

After careful review of the pleadings, we find the Ocwen failed to state a cause of action. Thus, we find the trial court erred in denying the exception of no cause of action. This Court has previously recognized that when a plaintiff's petition fails to state a cause of action the plaintiff is entitled to an opportunity to remove the grounds for the exception by amending its petition pursuant to La. C.C.P. art. 934. The statute provides: "[w]hen the ground of the objection ... may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." La. C.C.P. art. 934.

In Vieux Carre Property Owners, Residents & Associates, Inc. v. Decatur Hotel Corp. , this Court explained:

It is true that this statutory right to amend the petition in order to remove the plea of no cause of action is not so absolute as to be permitted when an amendment would constitute a vain and useless act. In other words, for an amendment to be allowed there should be some indication that the defective petition can be amended to state a lawful cause of action.

Id. , 99-0731, 746 So.2d 806, 808 (La. App. 4 Cir. 11/10/99) (citations omitted).

Although Ocwen's petition fails to state a cause of action for the recognition of a valid mortgage, we find Ocwen should be given an opportunity amend its petition. Therefore, pursuant to La. C.C.P. art. 934, we reverse the trial court's denial of the exception of no cause of action and remand to allow Ocwen to amend its petition, if it can, in order to set forth a cause of action.

DECREE

We find the mortgage, which is vital to Ocwen's claim, lacks a legal description of the property, rendering the mortgage an absolute nullity. Similarly, the 2003 donation inter vivos from Ms. Parkman to her mother is invalid on its face. Because the attempted donation was made after the mortgage was signed, Ocwen is unable to establish that Ms. Parkman agreed to allow her mother to encumber the entire property with the mortgage. Thus, we find the trial court erred in denying the exception of no cause of action. Pursuant to La. C.C.P. art. 934, however, we remand the matter to allow Ocwen an opportunity to amend its petition. Accordingly, the writ is granted, trial court's judgment is reversed, and the matter is remanded to permit Ocwen to amend its petition, if it can, in order to set forth a cause of action.

WRIT GRANTED; REVERSED AND REMANDED


source: Caselaw Access Project

author: Judge Joy Cossich Lobrano

license: Public Domain

text:
    Carroll Collins DABEZIES, Constance Dabezies Cooper and Olivier C. Dabezies v. Eugenie Dabezies TRELO, Louise C. Dabezies and Elizabeth Dabezies Goodyear
    NO. 2018-C-0278
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2018
    Justin B. Schmidt, BREAZEALE, SACHSE & WILSON, L.L.P., 909 Poydras Street, Suite 1500, New Orleans, LA 70112, COUNSEL FOR RELATORS
    James R. Swanson, Sharonda Williams, Jeanette A. Donnelly, FISHMAN HAYGOOD, 201 St. Charles Avenue, 46th Floor, New Orleans, Louisiana 70170-4600, COUNSEL FOR RESPONDENT
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Rosemary Ledet )
   Judge Joy Cossich Lobrano

Plaintiffs/relators, Carroll Collins Dabezies, through her co-mandataries, Olivier C. Dabezies and Conrad G. Collins, seek review of the district court's judgment of February 23, 2018, granting the defendants' motion to compel.

Plaintiffs instituted the present action to judicially partition the family home at 6016 St. Charles Avenue. Carroll Collins Dabezies and her deceased husband, Dr. Oliver H. Dabezies, Jr., owned the property during their marriage and raised their children there. Olivier C. Dabezies is Carroll's son and the defendants are her daughters. Upon the death of Dr. Dabezies in 2001, Carroll was placed in ownership of fifty percent interest in the property; the other fifty percent was divided among the five children, each having a ten percent interest in the property, subject to Carroll's usufruct. In 2004, Carroll executed a very broad and all-encompassing procuration, authorizing her son and her brother to act as her co-mandataries. In 2007, Carroll was diagnosed with Alzheimer's and placed in Poydras Home, where she continues to reside. The parties attempted an amicable agreement to sell the family home. However, they could not agree, and the present partition suit was filed.

Defendants have sought to obtain financial information; which discovery the plaintiffs have opposed. Defendants filed a motion to compel discovery. After a hearing, the district court rendered judgment granting the motion to compel and ordering plaintiffs to provide the information requested. The plaintiffs informed the district court of their intent to seek supervisory review, and the district court set a return date of March 27, 2018 and filed their application for supervisory writs with this court on the same day. Defendants have opposed the writ application, arguing that the trial court's ruling was correct in light of the allegations in the petition to partition and the answer and affirmative defenses filed in response.

Pursuant to La. C.C.P. 1422 :

[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

"A trial court has broad discretion in handling discovery matters and an appellate court should not upset a ruling absent an abuse of discretion." Sercovich v. Sercovich, 11-1780, p. 5 (La.App. 4 Cir. 6/13/12), 96 So.3d 600, 603. Under this abuse of discretion standard of review, "[a]n appellate court must balance the information sought in light of the factual issues involved and the hardships that would be caused by the court's order when determining whether the trial court erred in ruling on a discovery order." Favrot v. Favrot , 12-1573, p. 4 (La.App. 4 Cir. 5/1/13), 115 So.3d 1190, 1193.

La. C.E. art. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The discoverability test under La. C.C.P. art. 1422 entails first asking whether answering the discovery is feasible and practicable. If that answer is in the affirmative, the court then determines whether an answer to the discovery would "expedite the litigation by either narrowing the area of controversy or avoiding unnecessary testimony or providing a lead to evidence." Indus. Pipe, Inc. v. Plaquemines Parish Council, 12-1348, p. 8 (La.App. 4 Cir. 9/14/12), 100 So.3d 896, 901.

Because the test for discoverability of evidence is broader than the test for admissibility, the following three categories of evidence have been identified in terms of admissibility and discoverability: "(1) evidence which is admissible at the trial or hearing, (2) evidence which is discoverable, including, but not limited to, all evidence admissible at the trial or hearing, and (3) evidence which is neither admissible nor discoverable." Sullivan v. Malta Park , 14-0478, p. 18 (La.App. 4 Cir. 12/10/14), 156 So.3d 751, 762, quoting 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 9:1 (1999). Courts have established that while relevance in discovery is broader than that required for admissibility at trial, "the object of inquiry must have some evidentiary value before an order to compel disclosure of otherwise inadmissible material will issue." Indus. Pipe, Inc., 12-1348, p. 8, 100 So.3d at 901. "A party seeking to compel discovery bears the burden of proving that the matters sought to be discovered are relevant." State ex rel. Ieyoub v. Racetrac Petroleum, Inc., 01-0458, p. 18 (La.App. 3 Cir. 6/20/01), 790 So.2d 673, 685.

In the present case, the plaintiffs/relators argue that the district court erred in granting the motion to compel discovery, suggesting that the discovery sought is too broad and not relevant to the partition of the immovable property at issue. Plaintiffs object to the following interrogatories propounded:

Interrogatory No. 8:
For each person identified in response to interrogatory No. 5, indicate whether each person reimbursed our mother for any expenses related to their occupation of the Property, and if so, provide the amount of reimbursements paid and the item/expenses for which the reimbursements were paid.
* * *
Interrogatory No. 11:
For the time period during January 13, 2004, to the present, identify all accounts in our mother's name, including without limitation, banking, credit card, retirement, and private investment accounts. Include the type of account, the institution where the account is held, and the address of the institution.

The plaintiffs also object to the defendants' requests for production of documents which seek: (1) a sworn descriptive list of the current contents of the property; (2) any appraisals of the property between August 18, 2014 and the present; (3) an accounting of the annual cost of maintaining the property, including without limitation, domestic help, utilities, and all other costs expended to maintain the property; (4) an accounting of the necessary expenses, expenses for ordinary maintenance and repairs, and necessary management expenses paid to third parties for the time period of January 2007 to the present; (5) all bank statements for any bank account in the name of Carroll Collins Dabezies; (6) all IRA account statements for any account in the name of Carroll Collins Dabezies; (7) all credit card statements for any account in the name of Carroll Collins Dabezies; (8) all statements for any private investment account in the name of Carroll Collins Dabezies; (9) statements for all accounts listed in response to Interrogatory No. 11; and (10) a full accounting of the co-mandataries'

management of the property listed in the Sworn Descriptive List dated January 30, 2004, which was and/or is subject to a usufruct in favor of Carroll Collins Dabezies.

We find that several of the discovery requests are relevant and may lead to admissible evidence relating to the partition: the requests for: (1) a sworn descriptive list of the current contents of the property; (2) any appraisals of the property between August 18, 2014 and the present; (3) an accounting of the annual cost of maintaining the property, including without limitation, domestic help, utilities, and all other costs expended to maintain the property; (4) an accounting of the necessary expenses, expenses for ordinary maintenance and repairs, and necessary management expenses paid to third parties for the time period of January 2007 to the present; and (5) information regarding reimbursements from persons occupying the residence to Carroll Collins Dabezies.

However, several requests go far beyond the scope of the present proceeding, a partition of the immovable property. Requests for production of: (1) all bank statements for any bank account in the name of Carroll Collins Dabezies; (2) all IRA account statements for any account in the name of Carroll Collins Dabezies; (3) all credit card statements for any account in the name of Carroll Collins Dabezies; (4) all statements for any private investment account in the name of Carroll Collins Dabezies; (5) statements for all accounts listed in response to Interrogatory No. 11; and (6) a full accounting of the co-mandataries' management of the property listed in the Sworn Descriptive List dated January 30, 2004, which was and/or is subject to a usufruct in favor of Carroll Collins Dabezies, are not relevant to a partition suit. While the other requests deal with the financial aspects of maintaining the property and issues relating to its value, these requests seek information relating to the management of Carroll Collins Dabezies' separate property under the procuration.

We agree, however, that the district court abused its discretion in ordering the plaintiffs to respond to discovery seeking: (1) all bank statements for any bank account in the name of Carroll Collins Dabezies; (2) all IRA account statements for any account in the name of Carroll Collins Dabezies; (3) all credit card statements for any account in the name of Carroll Collins Dabezies; (4) all statements for any private investment account in the name of Carroll Collins Dabezies; (5) statements for all accounts listed in response to Interrogatory No. 11; and (6) a full accounting of the co-mandataries' management of the property listed in the Sworn Descriptive List dated January 30, 2004, which was and/or is subject to a usufruct in favor of Carroll Collins Dabezies. The defendants have not shown that these requests are relevant and may lead to admissible evidence.

Accordingly, the writ application is granted in part, and the district court's ruling is reversed in regards to the discovery requests for: (1) all bank statements for any bank account in the name of Carroll Collins Dabezies; (2) all IRA account statements for any account in the name of Carroll Collins Dabezies; (3) all credit card statements for any account in the name of Carroll Collins Dabezies; (4) all statements for any private investment account in the name of Carroll Collins Dabezies; (5) statements for all accounts listed in response to Interrogatory No. 11; and (6) a full accounting of the co-mandataries' management of the property listed in the Sworn Descriptive List dated January 30, 2004, which was and/or is subject to a usufruct in favor of Carroll Collins Dabezies.

The writ application is denied in part as to the requests for discovery concerning: (1) a sworn descriptive list of the current contents of the property; (2) any appraisals of the property between August 18, 2014 and the present; (3) an accounting of the annual cost of maintaining the property, including without limitation, domestic help, utilities, and all other costs expended to maintain the property; (4) an accounting of the necessary expenses, expenses for ordinary maintenance and repairs, and necessary management expenses paid to third parties for the time period of January 2007 to the present; and (5) information regarding reimbursements from persons occupying the residence to Carroll Collins Dabezies.

This matter is remanded to the district court for further proceedings consistent with this writ disposition.

WRIT GRANTED IN PART; DENIED IN PART; REMANDED.

      Additionally, we note that under Dr. Oliver Dabezies' will, Carroll Collins Dabezies has a lifetime usufruct over Dr. Dabezies' separate and community property, including the immovable property sought to be partitioned. The will also provides that "should any asset of [his] estate be sold, [Carroll's] usufruct over same shall continue over the proceeds of such sale." Thus, if the property is sold as result of the partition suit, Carroll Collins Dabezies would have usufruct over the proceeds of the sale. Defendants would not be entitled to proceeds of the sale until Carroll's death.


text:
    Erika MANN v. TIM CLARK CONSTRUCTION, LLC
    NO. 2017-CA-0983
    Court of Appeal of Louisiana, Fourth Circuit.
    May 23, 2018
    Carol Welborn Reisman, S. Gene Fendler, Dana M. Douglas, Patrick Reagin, LISKOW & LEWIS, 701 Poydras Street, Suite 5000, New Orleans, LA 70139-5099, COUNSEL FOR PLAINTIFF/APPELLANT
    Karl H. Schmid, Charles B. Long, Travis L. Bourgeois, DEGAN, BLANCHARD & NASH, 400 Poydras Street, Suite 2600, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Tiffany G. Chase )
   Judge Joy Cossich Lobrano

Erica Mann, plaintiff/appellant, has appealed from a summary judgment granted in favor of Evanston Insurance Company ("Evanston"). Evanston is one of the insurers of Tim Clark Construction LLC ("TCC"), the company hired by Mann to raise her home following Hurricane Katrina in 2005. After a review of the record and applicable law, we vacate the judgment of the district court and remand the matter for further proceedings.

In October, 2010, Mann entered into a contract with TCC to elevate her home (hereinafter "the project"). This was done after Hurricane Katrina in conjunction with the state's Hazard Mitigation Grant Program.

TCC had a series of insurers; Evanston insured TCC for the period of March 3, 2014 to March 3, 2015. Evanston's policy contains the commonly-used commercial general liability form, that includes coverage for bodily injury and property damage (coverage A), which is at issue here. Briefly, this is an "occurrence policy" requiring that the bodily injury and/or property damage occur during the policy period. In addition, the policy contains a pre-existing injury, loss or damage endorsement, excluding from coverage any damage or loss that began to occur "from an occurrence which first occurred, began to occur, or is alleged to have occurred prior to the inception date of this policy."

It is undisputed that TCC began work on the project at the end of 2011. On March 12, 2012, TCC obtained a certificate of occupancy and completion. Elevation studies performed in March allegedly showed that the house was not elevated to proper levels. Mann informed TCC on June 28, 2012, that it had not completed the project as agreed, that the work was improperly performed, and that the house failed inspection. In her petition, Mann alleged that TCC caused physical damages to her home and property, which caused her emotional distress, both of which continue to this day.

In her petition, as confirmed in her deposition, Mann maintains that she first noted damage to her property in the fall of 2011. The second phase of the project took place in 2012, in which TCC attempted to correct the damage it caused. After more problems, the third phase of the project took place in 2013.

Evanston filed a motion for summary judgment based on Mann's deposition and the express language of the Evanston policy, arguing that its policy did not provide coverage for any of Mann's damages; it prayed for a complete dismissal of all Mann's claims against it with prejudice. Mann opposed the motion and filed a cross-motion for partial summary judgment against Evanston, in which she made 35 requests for relief. Both motions were heard by the district court on September 1, 2017. The transcript of the hearing is in the appellate record. The district court reached a ruling at the hearing that was memorialized in a September 12, 2017 judgment.

The district court found that Evanston had carried its burden of proof on summary judgment and that the pre-existing endorsement was applicable, unambiguous, and enforceable. Thus, judgment was granted in Evanston's favor dismissing all of Mann's claims against it with prejudice.

With regard to Mann's cross-motion for summary judgment, the district court granted some of the requests for relief against Evanston, denied others, while some were deferred, presumably until trial. A vast majority of Mann's claims concerned the interpretation of Evanston's policy provisions.

As noted by Mann, the district court's judgment is patently inconsistent. While it dismissed all of Mann's claims against Evanston with prejudice, it granted certain items of relief in Mann's favor under the Evanston policy. Evanston cannot be dismissed with prejudice while some of Mann's claims against it are retained.

This court cannot determine if the district court intended to grant partial summary judgment in Evanston's favor with regard to the pre-existing endorsement alone or dismiss all of Mann's claims against it. That the district court intended to grant a partial summary judgment in Evanston's favor is the only way to reconcile the inconsistencies in the judgment before us.

"A valid judgment must be precise, definite, and certain." Laird v. St. Tammany Parish Safe Harbor, 02-0045, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. In Bouton v. State, Dept. of Transp. and Development, 07-0422 (La. 4/05/07), 953 So.2d 56, the Court granted the writ, vacated the judgment of the appellate court, and remanded the matter to the trial court for clarification. It stated:

Granted. Although the court of appeal found the trial court determined the insurer's duty to defend based on the allegations of relator's third-party demand, the trial court's reasons for judgment indicate it relied on the allegations of both plaintiffs' petition and the third party demand. Because it is unclear whether the trial court could have concluded the insurer had a duty to defend relator based on the allegations of plaintiffs' petition alone, we will remand the case to the trial court to clarify its ruling. See Steptore v. Masco Construction Company, Inc., 93-2064 (La. 8/18[/]94), 643 So.2d 1213.

Id. at p. 1, 953 So.2d at 57.

In Barnes v. Riverwood Apartments Partnership, 42,912 (La.App. 2 Cir. 02/06/08), 975 So.2d 720, the court vacated the district court's judgment and remanded it for clarification because the jury's responses to the interrogatories given them to reach a judgment were inconsistent. The court stated:

This final judgment presents two inconsistent outcomes. Under the jury's interrogatories, the fault is allocated equally among the three parties and Mr. Barnes will receive from Riverwood at least a portion of the $5,000 special damage award. Reading further in the final judgment, however, the trial court rules in favor of Riverwood and its insurer and dismisses Mr. Barnes' claims thereby indicating that Mr. Barnes would receive no damage award.

Id. at p. 4, 975 So.2d at 722.

We find an analogous situation herein. Either Evanston is dismissed from this case or only parts of Mann's allegations based on various policy provisions have been dismissed and Evanston remains a defendant. For these reasons, the judgment must be clarified by the district court.

Based on the foregoing, we vacate the judgment of the district court and remand the matter for further proceedings consistent with this opinion.

JUDGMENT VACATED; REMANDED.


author: SAVOIE, Judge. AMY, J., dissenting.

text:
    Cynthia Hill DUPONT, Bridgette C. Marcotte & John Hill v. The STATE of Louisiana, DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE LANDS, THROUGH the OFFICE OF the ATTORNEY GENERAL
    17-417
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2018
    Michael J. Uter, 300 Main St., Suite 301, Baton Rouge, LA 70802, (225) 381-8242, COUNSEL FOR PLAINTIFFS/APPELLEES: John Hill, Cynthia Hill Dupont, Bridgette C. Marcotte
    Harry J. Vorhoff, Ryan M. Seidemann, Assistant Attorneys General, 1885 North Third Street, Post Office Box 94005, Baton Rouge, LA 70804-9005, (225) 326-6000, COUNSEL FOR DEFENDANTS/APPELLANTS: The State of Louisiana, Division of Administration, Office of State Lands, Through the Office of the Attorney General
    Jenny Donaghey-Beckham, Riddle & Donaghey, LLC, Post Office Box 608, Marksville, LA 71351, (318) 240-7217, COUNSEL FOR DEFENDANT/APPELLEE: Stephen Mayeux
    Court composed of Marc T. Amy, Elizabeth A. Pickett, Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.
   SAVOIE, Judge.

Plaintiffs Cynthia Hill Dupont, Bridgette C. Marcotte, and John Hill claim ownership of a certain tract of land over which the State of Louisiana also claims ownership. After a trial, the trial court ultimately found ownership and superior title belonged to the plaintiffs. The State now appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Upon learning that a tract of immovable property over which the family claims ownership was scheduled for a Sheriff's Sale, the plaintiffs filed a Petition for Temporary Restraining Order, Preliminary Injunction, Permanent Injunction, and for Declaratory Judgment against the State of Louisiana, Department of Administration, Office of State Lands. The plaintiffs asserted that they own the land in question with the first link in their title tracing back to an 1833 patent from the United States to Francis M. Henderson. The plaintiffs presented certified documents from the Avoyelles Parish Clerk of Court, which they explained demonstrate the various transactions by which title to the property has changed hands since 1833 and by which the plaintiffs acquired the property. The plaintiffs further explained that they "have been in continuous actual, open, and peaceable possession of [the property] as owners since they obtained it" and provided a certified tax certificate to demonstrate that they paid the State and Parish taxes assessed on the property for the preceding three years.

In response to the petition, the trial court granted a temporary restraining order. Thereafter, the parties entered a consent judgment, which granted a preliminary injunction on the same grounds as the existing temporary restraining order pending resolution of the issue of a permanent injunction at trial. Subsequently, Stephen Mayeux petitioned to intervene "as a property owner, adjoining property of plaintiffs, whose interest in said property hs [sic] been affected by the same demands made by the State of Louisiana unto plaintiffs ... in mover's property described as a certain 3 acre, more or less, tract or parcel of land[.]" The trial court permitted Mr. Mayeux to intervene as a party plaintiff, and the matter was ultimately set for a bench trial. The State filed an answer, which stated in part that the Petition "erroneously claims title to the subject property." In the answer, the State prayed for a judgment dismissing the plaintiffs' claims and declaring title and ownership of the land in favor of the State.

In their pre-trial brief, the plaintiffs and the intervenor (hereinafter referred to collectively as the "plaintiffs") reiterated their claim that their chain of title dates back to an 1833 patent issued from the United States to Francis M. Henderson. In support, their exhibits included excerpts from the record book "General Government 2 Parish of Avoyelles[.]" In particular, the plaintiffs explain that "[t]he first transaction of record is from the United States of America to Frances [sic] M. Henderson dated November 19, 1833, [sic] bearing Certificate No. 687, conveying to him the NW4 of the NW4 of Section 36, T3N, R5E, Avoyelles Parish, Louisiana, containing 38.42 acres." The plaintiffs again described and provided documentation for the various transactions that led to their acquisition of the property.

In its pre-trial brief, the State first disputed the plaintiffs' ownership and chain of title by providing a copy of excerpts from the United States Tract Book. The State asserted that "the alleged conveyance to Francis M. Henderson was posted in error" because it is accompanied by the notation "Posted in Error see T3NR5W, Vol 56, page 148[.]" The State suggested that "[t]he error appears to have emanated from a mistake between two persons with the same surname, Henderson." The State continued that "[a] review of that latterly-referenced page shows that the NW4 of the NW4 of Section 36 of T3N, R5W was conveyed to Robert M. Henderson." Like the Avoyelles Parish tract book presented by the plaintiffs, the entry bears a " DATE OF SALE " of November 19, 1833, and similarly shows "687" as the " NUMBER OF RECEIPT AND CERTIFICATE OF PURCHASE [.]" In their reply brief, the plaintiffs explained that the "Posted in Error" notation was done "without making the record owners of the property party to the process" and questioned the "due process owed to" them.

The State further presented a certified copy of Patent Number 1238658, in which the United States conveyed the subject tract of land to the State of Louisiana on August 31, 1965. Regarding the patent introduced by the State, the plaintiffs asserted in their pre-trial brief that, when there is "a conflict of two entities or persons being granted patents on the exact same piece of property, ... the first patent would have to prevail over the second, regardless of who [sic] the second patent was made to." However, as noted by the State, the plaintiffs did not provide the purported patent from the United States of America to Francis M. Henderson upon which they base their claim.

At trial, each party stipulated to the authenticity of the other party's evidence. The trial court concluded that the plaintiffs are the owners of the subject property and have a claim of title superior to that of the State. In oral reasons for judgment, the trial court explained:

I would be very remiss if I said ... 1965 patent supreme and that ends my inquiry. I have to look to the entire facts of this case.
....
What is of great concern for this court is that ... all of these years starting in 1833 through present this track [sic] that's in dispute drew revenue for the State of Louisiana in the form of taxes ... I just think that under the circumstances equity requires this court to exercise it's [sic] authority and to find that equitable title and superior title exists in the plaintiff's [sic] title in the chain that they've presented to this court. I find them to be in good faith, present possession, and ownership of a title that they possessed which reflects in this Court's eye as being from patent through a Mr. Henderson starting in 1833. I find that the issue done by the state is done without due process of law, without any notice to the plaintiff [sic], those who were in possession who have, where I consider to be very valid claim to the property[.]

Additionally, the trial court cited case law for the proposition that "if the thing granted was not in the grantor no right has the grantee" and for the proposition that "cancellation without notice to the owner of the land ... was without due process and was invalid."

The State appeals, asserting as error that:

1. The district court erred in finding that the Appellees proved better title to the disputed property than the State.
a. The district court erred in not finding the State's U.S. patent to be the superior and conclusive evidence of legal title.
b. The district court erred in not accepting the contents of the U.S. tract book for the facts stated therein given the absence of any argument or evidence of fraud or abuse.
c. The district court erred in finding that the Appellees held "equitable title" vis-à-vis the State.
2. The district court erred in making legal conclusions contrary to the controlling jurisprudence.
3. The district court erred in finding that the U.S. government's recognition of an erroneous posting in its tract book and its issuance of a patent to the State violated the Appellees' due process.

DISCUSSION

Whether the plaintiffs' copies of the Avoyelles Parish record book or the State's copy of Patent Number 1238658 is superior and conclusive evidence of title presents only a question of law. Therefore, we review this matter de novo . South Lafourche Levee District v. Jarreau , 16-788 (La. 3/31/17), 217 So.3d 298, cert. denied , --- U.S. ----, 138 S.Ct. 381, 199 L.Ed.2d 279.

The public records doctrine expresses a public policy that interest in real estate must be recorded in order to affect third persons. Louisiana Civil Code Article 3338 provides, in pertinent part:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.

Francis M. Henderson acquired his title from the United States of America in 1833 as evidenced by a patent recorded in the tract book for Avoyelles Parish at the time. For the next 131 years, this ownership, through chain of title, was uninterrupted. In 1964, unbeknownst to the successors of Francis M. Henderson, the United States Tract Book was altered. A line was placed through the name of Francis M. Henderson, referencing the land at issue, with the inscription "Posted in Error" added. One year later, in 1965, the State of Louisiana applied for and received a patent deed from the United States, which included the same tract of land. It is from this patent that the State of Louisiana claims ownership of the property. However, this patent was never recorded in Avoyelles Parish, where the land is situated. According to La.Civ.Code art. 3346 :

A. An instrument creating, establishing, or relating to a mortgage or privilege over an immovable, or the pledge of the lessor's rights in the lease of an immovable and its rents, is recorded in the mortgage records of the parish in which the immovable is located. All other instruments are recorded in the conveyance records of that parish.

Because the patent was not properly recorded in Avoyelles Parish, the successors-in-title of Francis M. Henderson were unaware of the State of Louisiana's claim on the property. In fact, they continued to possess and pay the taxes on the property until such time as the property was scheduled for Sheriff's Sale. The State never asserted its claim during that time. Rather, the State now asks this court to deem it the owner of the property, even though it never asserted its rights and benefitted from the collection of taxes.

Further, in 1964, when a line was placed through the name of Francis M. Henderson, no document was attached to the United States Tract Book explaining the reason behind the error. More importantly, no notice was given to the successors-in-title of Francis M. Henderson informing them that their title to the land was voided by the United States government. The successors-in-title were not given a hearing in order to refute whatever evidence the United States may have had to substantiate its claim. Amendment V of the United States Constitution guarantees that "[n]o person shall....be deprived of life, liberty, or property, without due process of law[.]" Likewise, La. Const. Art. 1, § 2 provides, "[n]o person shall be deprived of life, liberty, or property, except by due process of law." This tenet is a cornerstone of our democracy.

The State of Louisiana would like this court to declare it the owner of the tract of land based on the patent that was issued to the State by the United States in 1965. It is our opinion that this patent was issued in error because the previous title holders, the successors-in-title of Francis M. Henderson, were not afforded due process when their property was taken from them by the United States government. As such, they were still the legal title holders of the property in question.

In Albritton v. Shaw , 148 La. 427, 87 So. 32 (1921), the state supreme court was faced with the issue of competing claims over a certain tract of land. The court opined:

"There are cases,' said Chief Justice Marshall, 'in which a grant is absolutely void; as where the state has no title to the thing granted, or when the officer had no authority to issue the grant. In such cases the validity of the grant is necessarily examinable at law.' Polk's Lessee v. Wendall, [13 U.S.] (9 Cranch) 87, 99[ 3 L.Ed. 665 (1815) ]. Indeed, it may be said to be common knowledge that patents of the United States for lands which they had previously granted, reserved for sale, or appropriated, are void. Easton v. Salisbury, [62 U.S.] (21 How.) 426[ 16 L.Ed. 181 (1858) ] ; Reichart v. Felps, [73 U.S.] (6 Wall.) 160[ 18 L.Ed. 849 (1867) ] ; Best v. Polk, [85 U.S.] (18 Wall.) 112[ 21 L.Ed. 805 (1873) ]. It would be a most extraordinary doctrine if the holder of a conveyance of land from a state were precluded from establishing his title simply because the United States may have subsequently conveyed the land to another, and especially from showing that years before they had granted the property to the state, and thus were without title at the time of their subsequent conveyance. As this court said in New Orleans v. United States, [35 U.S.] (10 Pet.) 662, 731[ 9 L.Ed. 573 (1836) ] : 'It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face, it is conclusive, and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee. A grant has been frequently issued by the United States for land which had been previously granted, and the second grant has been held to be inoperative."

Id. at 436 (emphasis added).

We agree. It would be a dangerous doctrine indeed. In the present case, Francis M. Henderson and his successors continually possessed and paid property taxes on the tract of land for nearly two hundred years. It would be inequitable and unconscionable to void their title and allow the State's patent to stand based on the facts before us. For the foregoing reasons, we find the plaintiffs to be the owners of the tract of land at issue.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to the State of Louisiana.

AFFIRMED.

Amy, J., dissents and assigns reasons.

Kyzar, J., concurs in the result and assigns reasons.

AMY, J., dissenting.

I respectfully dissent as I find that the State of Louisiana has demonstrated superior and conclusive evidence of title to the subject property.

Critically, the State is the only party that has produced a United States patent. Both the Louisiana Supreme Court and the United States Supreme Court have declared the primacy of that instrument in evidencing legal title, providing that: " 'Congress has the sole power to declare the dignity and effect of titles emanating from the United States; and the whole legislation of the federal government, in reference to the public lands, declares the patent the superior and conclusive evidence of legal title.' " Haggerty v. Annison , 133 La. 338, 342, 62 So. 946, 947 (1913) (quoting Bagnell v. Broderick , 38 U.S. (13 Pet.) 436, 450, 10 L.Ed. 235 (1839) ).

By contrast, the plaintiffs have produced no patent in support of their claim. Rather, they rely on excerpts from the Avoyelles Parish record book which reference an earlier issued patent. However, no actual patent was recorded in the Avoyelles Parish tract book and the reference entry has been called into question by a notation of error. Under these facts, I do not see how the plaintiffs can be viewed as having demonstrated their ownership of the property. Rather, they countered the superior and conclusive evidence of the State's ownership via patent with only a reference notation of a patent's existence which has a countervailing notation of error.

Certainly, the Louisiana Supreme Court has explained that "even a patent from the government of the United States, issued with all the forms of law, may be shown to be void by extrinsic evidence, if it be such evidence as by its nature is capable of showing a want of authority for its issue ." Albritton v. Shaw , 148 La. 427, 437, 87 So. 32, 36 (1920) (emphasis added). I do not find that, given the primacy accorded the patent, the plaintiffs' mere references to an alleged conveyance in the Avoyelles Parish tract book demonstrate that the State's patent was issued without authority. Additionally, the United States Tract Book contains a notation that the alleged conveyance relied upon by the plaintiffs was "posted" in error. The lack of an actual patent, coupled with the error notation, undermines the position that a patent was ever issued to Francis M. Henderson. Absent such a conveyance it cannot be said, considering the record before us, that title was ever conveyed.

Furthermore, I note that the majority opinion also references equitable concerns suggestive of prescription, observing that the plaintiffs and their ancestors in title have continually possessed the tract of land and paid property taxes for almost two hundred years. However, the record linearly demonstrates that, despite such possession, the tract of land was owned by the United States until 1965 when title was transferred to the State. The supreme court has explained that "the power of the Congress in the disposition of public lands ... cannot be defeated or obstructed by any occupation of the premises before the issuance of the patent[.]" Haggerty , 62 So. at 947. See, e.g., 28 U.S.C. § 2409a (which permits lawsuits against the federal government for adjudication of a "disputed title to real property in which the United States claims an interest ...[,]" but which provides further that "[n]othing in this section shall be construed to permit suits against the United States based upon adverse possession."); U.S. v. Pappas , 814 F.2d 1342, 1343 n.3 (9th Cir. 1987) (explaining that "One cannot gain title to land of the United States through adverse possession.").

To the extent the plaintiffs cite to their possession of the property after its conveyance to the State in 1965, La.Const. art. 12, § 13 declares that "[p]rescription shall not run against the state in any civil matter, unless otherwise provided in this constitution or expressly by law." More particularly, La.Const. art. 9, § 4 provides, in pertinent part, that: "Lands and mineral interests of the state ... shall not be lost by prescription" except in narrow circumstances. The situation at hand is not encompassed by any of the limited exceptions to the general rule that prescription does not run against the State. In light of the foregoing constitutional principles-and although I am mindful of the circumstances surrounding the plaintiffs' claim-I find no basis in law for the suggestion that recognition of the State's superior title must, or even can, yield to equitable considerations of possession.

For these reasons, I respectfully dissent.

KYZAR, J., CONCURS AND ASSIGNS REASONS

The plaintiffs herein sought a declaratory judgment declaring their title to certain Avoyelles Parish immovable property to be valid title and thus recognizing their ownership of the disputed tract of land. Louisiana Code of Civil Procedure article 3654 discusses declaratory judgments and provides, in pertinent part, that:

"When the issue of ownership of immovable property ... is presented in an action for a declaratory judgment, ... the court shall render judgment in favor of the party:
(1) Who would be entitled to the possession of the immovable property or real right therein in a possessory action[.]"

Louisiana Code of Civil Procedure article 3655 states that a "possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed[.]"

The State answered, asserting its title via a patent from the United States and prayed for judgment "declaring valid title and ownership of the subject property to be in favor of the State." Louisiana Code of Civil Procedure article 3657 provides, in pertinent part, that when "the defendant in a possessory action asserts title in himself, in the alternative or otherwise, he thereby converts the suit into a petitory action, and judicially confesses the possession of the plaintiff in the possessory action." Thus, the suit, which began as a declaratory judgment action, was converted into a petitory action by the State's answer and assertion.

If a plaintiff in a petitory action wishes to "obtain a judgment recognizing his ownership of immovable property or real right therein," La.Code Civ.P. art. 3653 requires that the plaintiff "[p]rove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof." Therefore, the question in this instance is which party has proved better title.

In support of their claim, the plaintiffs introduced records establishing their chain of title, which dates back to an 1833 patent issued from the United States to Francis M. Henderson. Their exhibits included excerpts from the record book "General Government 2 Parish of Avoyelles[.]" The plaintiffs asserted that "[t]he first transaction of record is from the United States of America to Frances [sic] M. Henderson dated November 19, 1833, [sic] bearing Certificate No. 687, conveying to him the NW4 of the NW4 of Section 36, T3N, R5E, Avoyelles Parish, Louisiana, containing 38.42 acres." The plaintiffs further provided other documentation establishing the chain of title emanating from the original transaction from the United States to Henderson. However, plaintiffs could not produce the physical patent from the United States to Francis M. Henderson. On the other hand, the State relies on a patent from the United States, Patent Number 1238658, by which the United States purportedly conveyed the land in dispute to the State of Louisiana in 1965.

It is recognized that "in reference to the public lands," Congress "declares the patent the superior and conclusive evidence of legal title[.]" Haggerty v. Annison , 133 La. 338, 342, 62 So. 946, 947 (1913) (quoting Bagnell v. Broderick , 38 U.S. (13 Pet.) 436, 450, 10 L.Ed. 235 (1839) ). However, this is not the end of the inquiry.

'A patent,' says the court in United States v. Stone ( [69 U.S.] (2 Wall.) 525[ 17 L.Ed. 765 (1864) ] ), 'is the highest evidence of title, and is conclusive against the government and all claiming under junior patents or titles, until it is set aside or annulled by some judicial tribunal. In England, this was originally done by scire facias ; but a bill in chancery is found a more convenient remedy.' See also Hughes v. United States , [71 U.S.] (4 Wall.) 232[ 18 L.Ed. 303 (1866) ] ; S.C. [52 U.S.] (11 How.) 552[ 13 L.Ed. 809 (1850) ].

Moore v. Robbins , 96 U.S. 530, 533, 24 L.Ed. 848 (1877).

It has been argued that the first patent appropriates the land, and extinguishes all prior claims of inferior dignity. But this view is not sustainable. The issuing of a patent is a ministerial act, which must be performed according to law. A patent is utterly void and inoperative which is issued for land that had been previously patented to another individual. The fee having been vested in the patentee by the first patent, the record could convey no right. It is true a patent possesses the highest verity. It cannot be contradicted or explained by parol; but if it has been fraudulently obtained, or issued against law, it is void. It would be a most dangerous principle to hold, that a patent should carry the legal title, though obtained fraudulently, or against law. Fraud vitiates all transactions. It makes void a judgment, which is a much more solemn act than the issuing of a patent. The patent of the defendants having been for land reserved from such appropriation, is void; and also the survey of Coontz, so far as either conflicts with the plaintiff's title and this question, this court can decide."

Foley v. Harrison , 5 La.Ann. 75, 81 (1850), affirmed , 56 U.S. (15 How.) 433, 14 L.Ed. 761 (1853) (citations omitted).

The plaintiffs' chain of title does purport to emanate from at least the reference to a patent issued or which was supposed to issue from the United States. Despite this reference in the tract book, another patent was issued in 1965. The use of Tract Books, as to support the validity of land titles, has a long history in this country.

The first tract books were prepared in about 1800. Then, as now, the tract books were organized by State or territory, meridian, township, range, section, and subdivision and were intended to provide a permanent index type record, originally of homestead entries, but later of all transactions affecting surveyed public lands. One set of tract books is maintained in Washington and another in the appropriate local land office.
The tract book entries provide a record of patents, grants, leases, permits, licenses, rights of way, special uses, and applications for any of these. The entries also include references to proclamations and orders for withdrawals, reservations, classifications, and appropriations of public lands, and to revocations, restorations, suspensions, amendments, and modifications of the proclamations and orders.

ACQUIRING FEDERAL OIL AND GAS LEASES-SOME PROBLEMS AND SUGGESTED SOLUTIONS, 9 RMMLF-INST 6 (1964) (footnotes omitted).

It is undisputed that Francis M. Henderson acquired his title from the United States of America and, as recognized by the majority herein, for "the next 131 years, this ownership, through chain of title, was uninterrupted." However, without notice to the successors of Francis M. Henderson, the United States Tract Book was altered in 1964, with a line drawn through the name of Francis M. Henderson and the inscription "Posted in Error" added. No document was attached to the United States Tract Book explaining the reason behind the error, nor was there any reference to any documentation providing authority for the tract book entry to be altered. One year later, the State of Louisiana applied for and received a patent deed from the United States. However, this patent was never recorded in Avoyelles Parish where the land in question is situated. The State applied for the patent despite the fact that the plaintiffs and their ancestors in title had paid the taxes on the property for decades and continued to do so until such time as the property was scheduled for Sheriff's Sale.

The trial court's reasons for judgment in favor of the plaintiffs do note, in part, the equitable doctrine of prescription, as shown in its oral reasons wherein the trial court expressed that the tract of land "drew revenue for the State of Louisiana in the form of taxes" while also mentioning the plaintiffs' "equitable title" and "good faith, present possession[.]" It is undisputed that the plaintiffs and their ancestors in title continuously possessed the property for decades, even prior to the State's purported acquisition of the property per the 1965 patent. Indeed, it is noted that had this been a case involving two individuals, instead of one individual versus the State, acquisitive prescription would be a direct issue and a prescriptive title could prevail. The State, on the other hand, asserts that "[p]rescription shall not run against the [S]tate in any civil matter, unless otherwise provided in this constitution or expressly by law", citing La.Const. art. 12, § 13. It then notes La.Const. art. 9, § 4, which provides, in part, that "Lands and mineral interests of the state ... shall not be lost by prescription" except in certain, narrow circumstances. However, it should be noted that plaintiffs' open possession of the property for at least 30 years, and certainly for 10 years, had long been accomplished prior to the State's attempted acquisition of the property in 1965. Thus, prescription did not "run against" the State; it had already tolled before the State's involvement with the land. What is most pertinent to this analysis is the silence of the State for the many, many years after acquiring the patent and its failing to provide any notice to the plaintiffs of its claim of adverse ownership of this property. Indeed, the acquisition itself, in light of the known fact that someone was claiming ownership of the property by the payment of taxes, makes the acquisition of the patent questionable without at least some effort to notify the taxpayers. Thus, under the circumstances of this particular case, the trial court had the authority to disregard the patent title asserted by the State.

The power of a court of equity, by its decree to vacate and annul the patent, under the circumstances of this case, is undoubted. Relief, when deeds or other instruments are executed by mistake or inadvertence of agents, as well as upon false suggestions, is a common head of equity jurisdiction.
The patentee cannot complain of the proceeding, for the open, notorious, and exclusive possession of the premises, by the parties claiming under Goodbee, when the patentee made his entry and received the patent, was sufficient to put him upon inquiry as to the interests, legal or equitable, held by them; and if he neglected to make the inquiry, he is not entitled to any greater consideration than if he had made it and ascertained the actual facts of the case.

Hughes v. United States , 71 U.S. (4 Wall.) 232, 236, 18 L.Ed. 303 (1866) (emphasis added).

As such, I agree with the majority in the affirmation of the judgment of the trial court under the particular and limited facts of this unfortunate case.

      The opening paragraph of the petition states that it is "[t]he petition of Cynthia Hill Dupont, Joey L. Hill, Alexis Hill Terrell and John Hill[.]" However, paragraph "1." of the petition provides that the "[p]laintiffs are Cynthia Hill Dupont, Bridgette C. Marcotte, and John Hill[.]" Additionally, the judgment of the trial court states: "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the claim of the Plaintiffs herein, Cynthia Hill Dupont, Bridgette C. Marcotte and John Hill is hereby confirmed and that they are adjudged to be the owners of the property hereinabove described[.]" Accordingly, reference hereinafter to the "plaintiffs" will be to Cynthia Hill Dupont, Bridgette C. Marcotte, and John Hill.

      In explaining the transaction, the plaintiffs describe the tract as "the NW4 of the NW4[.]" However, the exhibit to which the plaintiffs refer lists the tract as "N.W. ¼ N.W. ¼[.]"

      In explaining the transaction, the State describes the tract as "the NW4 of the NW4[.]" However, the exhibit to which the State refers lists the tract as "NW4 NW4[.]"

      The patent also conveyed four other tracts of land.


author: CONERY, Judge.

text:
    Melody P. SMITH v. CIRCLE K STORES, INC. and ACE American Ins. Co.
    WCA 18-28
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018
    Gloria A. Angus, Angus Law Firm, L.L.C., Post Office Box 2337, Opelousas, Louisiana 70571, (337) 948-8800, COUNSEL FOR PLAINTIFF/APPELLANT: Melody P. Smith
    Thomas J. Eppling, Lance Edward Harwell, Staines & Eppling, 3500 North Causeway Boulevard, Suite 820, Metairie, Louisiana 70002, (504) 838-0019, COUNSEL FOR DEFENDANTS/APPELLEES: Circle K Stores, Inc., Ace American Insurance Company
    Court composed of John E. Conery, D. Kent Savoie, and Candyce G. Perret, Judges.
   CONERY, Judge.

Plaintiff-Appellant, Melody P. Smith, appeals the judgment of the Workers' Compensation Judge (WCJ) denying penalties and attorney fees against her employer Circle K Stores, Inc. and its workers' compensation insurer, Ace American Insurance Company (Ace American) for failure to approve medical care for Ms. Smith's injury to her right knee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 21, 2013, while in the course and scope of her employment with Circle K Stores, Inc., Ms. Smith went to a Capital One Bank in Lafayette, Louisiana to make a night bank deposit. Before Ms. Smith could reach the bank, she was the victim of an armed robbery. The perpetrator crashed his truck into the rear of her car and shot twice at Ms. Smith's vehicle, almost striking Ms. Smith. He proceeded to smash the window of Ms. Smith's car and take the deposit bag from the front seat. Ms. Smith sustained injuries to her neck, back, and knee as a result of the incident.

The defendants have paid Ms. Smith workers' compensation benefits since the incident. However, a dispute arose over the issue of treatment for injury to Ms. Smith's right knee. As a result, on September 22, 2014, Ms. Smith filed a 1008 Disputed Claim for Compensation, commonly referred to as a Form 1008, pursuant to La.R.S. 23:1034.2(F)(1) against the defendants, claiming, "[Ms.] Smith requested evaluation related to her knee injury occurring during the course and scope of employment. Insurer/Employer refused to [pre-authorize] evaluation for knee injurywith Ms. Smith's choice of physician [ (Dr. Louis Blanda, Jr.) ]. [Ms.] Smith requests penalties and attorney fees as well as judicial interest from date of demand."

On April 25, 2016, Ms. Smith's disputed claim was heard, and the WCJ took the matter under advisement. On September 1, 2016, the WCJ issued an oral ruling denying Ms. Smith's claim alleging the defendants failed to authorize treatment of her right knee by Dr. Blanda, her orthopedic surgeon of choice, and her claim for penalties and attorney fees. The WCJ found that the treating physician in question (Dr. Blanda) had failed to properly request the treatment of Ms. Smith's knee by sending the required LWC-WC-1010 ("1010 Form") pursuant to the Medical Treatment Guidelines, contained in LA. ADMIN. CODE tit. 40, pt. I, § 2175 (2014). Because the WCJ found the defendants had reasonably controverted Ms. Smith's claim that they failed to authorize treatment with Dr. Blanda, Ms. Smith was not entitled to penalties and attorney fees, thus none were awarded.

Oral reasons were read into the record in open court on September 1, 2016, and a judgment was signed by the WCJ on November 14, 2016. Notice of judgment was mailed to all parties on November 16, 2016. However, in October 2016, prior to the signing of the November 14, 2016 judgment, Ms. Smith filed a motion for new trial and later filed a motion for a devolutive appeal with this court on November 7, 2016. Ms. Smith's appeal was lodged in this court on March 6, 2017.

In Smith v. Sam , 17-80 (La.App. 3 Cir 5/17/17), 2017 WL 2346788 (unpublished opinion), a panel of this court dismissed Ms. Smith's previous appeal pursuant to La.Code Civ.P. art. 2087(D), which provides that "[a]n order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict." The panel found that when Ms. Smith filed her motion for devolutive appeal on November 7, 2016, her motion for new trial was still pending and pursuant to La.Code Civ.P. art. 2088, the workers' compensation court had not been divested of jurisdiction. See Egle v. Egle, 05-531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780. Accordingly, the order of appeal was granted prematurely, and this court lacked jurisdiction over Ms. Smith's first appeal. The first appeal was dismissed, and the case was remanded to the WCJ for a determination of the pending motion for new trial.

The WCJ heard Ms. Smith's motion for new trial on August 4, 2017. After hearing argument of counsel, the WCJ stated in pertinent part:

With regards [sic] to the authorization of the knee and the request for a new trial and penalties and attorney fees, I don't believe there are grounds for a new trial in this case. The issue with the knee was always related to the failure of the doctor to request it in the correct manner. That's why I do not feel that there was arbitrary and capricious conduct and penalties and attorney fees were owed. I'm not going to change my mind about that.

A judgment denying Ms. Smith's motion for new trial was signed on August 17, 2017. Therefore, this court now has the proper jurisdiction to hear Ms. Smith's timely appeal of the WCJ's November 14, 2016 judgment in which the WCJ denied her claim alleging the defendants improperly failed to authorize treatment and her request for attorney fees and penalties, as well as the judgment dated August 17, 2017, denying the motion for new trial.

ASSIGNMENTS OF ERROR

Ms. Smith asserts the following assignments of error on appeal:

1. The Lower Court committed manifest error in finding that the defendants did not act in an arbitrary and capricious [manner] in denying evaluation/treatment of Plaintiff's knee injuries with her choice of physician, [Dr. Louis Blanda, Jr.], when the request for evaluation/treatment for the shoulder was made at the same time [as] the [knee] and the defendants authorized evaluation /treatment for the shoulder but not the knee and failed to controvert the denial of the knee.
2. The [L]ower Court abused its discretion and committed manifest error in denying penalties and attorney fees, interest and costs.

LAW AND DISCUSSION

Standard of Review

The standard of review in a workers' compensation claim is well established and was succinctly stated in Bracey v. City of Alexandria , 13-16, pp. 2-3 (La.App. 3 Cir. 6/5/13), 115 So.3d 1211, 1214-15, writ denied , 13-1934, (La. 11/8/13), 125 So.3d 455 (citations omitted):

Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Where there are two permissible views of the evidence, a factfinder's choice between them can never be manifestly erroneous or clearly wrong. Thus, "if the [factfinder'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."
"The determination of coverage is a subjective one in that each case must be decided from all of its particular facts." "[T]he manifest error standard of appellate review applies in workers compensation cases and great deference is accorded to the [workers' compensation judge's] factual findings and reasonable evaluations of credibility."

Motion to Strike Attachments to Appellant's Brief

The defendants filed a motion to strike the attachment to Ms. Smith's original brief filed in support of her appeal on the basis that the document was "completely washed out and illegible." The defendants' motion was referred to the merits. The defendants stated that the attachment was not identified in Ms. Smith's original briefing but appeared to be the transcript of the new trial hearing before the WCJ. As previously stated, Ms. Smith's original appeal was remanded for a hearing on the still pending motion for new trial.

The defendants conceded that the attachment may be a part of the record on appeal before this court. On review, we find that the attachment is the illegible transcript of the hearing on Ms. Smith's motion for new trial held by the WCJ, a legible copy of which is contained in the record on appeal. Pursuant to La.Code Civ.P. art. 2164, a "transcript" is part of the record that may be reviewed by this court on appeal. See Uniform Rules-Courts of Appeal, Rule 2-1.9. Accordingly, the defendants' motion to strike the attachment is denied. However, counsel is cautioned that in the future any attachment to briefing to this court must be legible.

Assignments of Error One and Two

Ms. Smith's assignments of error will be addressed together as the WCJ's determination that the defendants were not arbitrary and capricious in denying treatment of Ms. Smith's right knee by Dr. Blanda was the basis of the WCJ's determination that no penalties and attorney fees should be awarded.

Ms. Smith's Form 1008 and her argument at the hearing claimed that the defendants refused to pre-authorize treatment for Ms. Smith's right knee, despite having received information that she had injured her neck, shoulder, and knee in the robbery incident.

At the start of the hearing, there was an issue of whether the defendants had, from the outset of Ms. Smith's workers' compensation claim, designated the claimed injury to Ms. Smith's right knee as a compensable injury. A compensable injury is defined in pertinent part under La.R.S. 23:1021(8)(a) of the Worker's Compensation Act to "include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom."

The testimony of Ms. Rebecca Couret, the Claims Professional for Ace American, clarified the question of the compensability of Ms. Smith's knee injury in her response to questioning by the WCJ:

Q Your testimony is that the knee was accepted from the outset of the claim?
A Correct. The previous adjuster had accepted the knee.
Q And when I say, "Claim," I'm not talking about the litigation.
A Correct.
Q I'm talking about the claim.
A Correct.
Q Okay. And from what you testified to, my understanding is that Approval for treatment for the knee has not been given because you have not received a 1010 form from the doctor; is that right?
A Correct. For anything beyond an office visit, we would require a 1010 for diagnostic or any kind of treatment beyond an office visit.

Ms. Couret's testimony on the requirement of the filing of a 1010 Form for an MRI, the diagnostic procedure for Ms. Smith's right knee requested by Dr. Blanda, Ms. Smith's orthopedic surgeon of choice, is supported by the statutory language of the Louisiana Workers' Compensation Act. The Louisiana Administrative Code Title 40, Part I, Section 2715(D)(1) (emphasis added) provides:

Submission and Process for Request for Authorization
Except as provided pursuant to D.2.,[ ] to initiate the request for authorization of care beyond the statutory non-emergency medical care monetary limit of $750 per health care provider, the health care provider shall submit LWC-WC-1010 along with the required information of this Section by fax or email to the carrier/self insured employer.

During her testimony, Ms. Couret was questioned by counsel for the defendants concerning the procedure for a physician to obtain approval in general for the treatment of a claimant with a compensable injury:

Q But you do know that the plaintiff's claim at the time-near the time that it happened was accepted as compensable?
A Correct.
Q Am I correct?
A Correct.
Q All right. What is the procedure for a physician to obtain approval to treat a claimant? In general?
A Just the office visit? Or anything beyond?
Q No, just the general. How do they get approval for something more than an office visit?
A They send a 1010 form. A Louisiana 1010 form along with some brief documentation for whatever it is they're requesting, whether it be an MRI, physical therapy, surgery, what have you.
Q Okay, and what do you do when you get the 1010 form?
A We review it to see if it meets the medical treatment guidelines for Louisiana. If it meets it, it's approved. And if it does not meet it, it's not approved and then the physician can file an appeal with the medical director.
Q Okay. Suppose it meets the medical treatment guidelines, then what?
A It's approved.
Q If it's compensable and it's been accepted.
A If it's compensable, yes.

Ms. Couret also testified that Dr. Blanda submitted a 1010 Form on March 23, 2016, requesting an MRI of Ms. Smith's right knee. The request by Dr. Blanda was timely approved on March 24, 2016, and a copy of the approved form was properly submitted into evidence. Ms. Couret further testified that Dr. Blanda had never submitted a 1010 Form for treatment of Ms. Smith's right knee prior to the first 1010 Form dated March 23, 2016, and that no other physician had submitted a 1010 Form requesting treatment of Ms. Smith's right knee during her handling of Ms. Smith's claim.

Additionally, Ms. Couret testified that during her handling of the claim, Ms. Smith had been diagnosed with osteoarthritis in both her right and left knee. Ms. Smith's medical records contained only the March 23, 2016 1010 Form request from Dr. Blanda for the MRI for Ms. Smith's right knee, which was approved by the defendants on March 24, 2016.

During Ms. Smith's testimony under cross-examination, she admitted that at her initial appointment with Dr. Blanda on March 11, 2014, the only complaints she listed on her Patient Information Form were for pain in her left shoulder and neck. Ms. Smith confirmed that the Patient Information Form contained no mention of any problem or injury to her right knee. The record evidence referenced by counsel for Ms. Smith at oral argument contains Ms. Smith's certified medical records that apply to the September 22, 2014 Form 1008 claim at issue. The relevant records cover medical treatment of Ms. Smith from March 11, 2014, through April 27, 2015.

Dr. Blanda's certified medical records for Ms. Smith confirm her testimony that at the initial visit with Dr. Blanda on March 11, 2014, her left shoulder was the focus of the examination. Ms. Smith's medical records also show that Dr. Blanda ordered an x-ray of Ms. Smith's left shoulder that was conducted on the same date. Dr. Blanda's notes from March 11, 2014, stated, "[s]he indicates she also struck her right knee on the console and this is still bothering her, but she is only here for her left shoulder today."

Dr. Blanda recommended a left shoulder MRI and that a "workers' comp 1010 form for authorization be submitted" for a cervical MRI to determine the source of Ms. Smith's neck pain. A 1010 Form was submitted by Dr. Blanda's office for the two MRIs and they were approved on March 28, 2014. The MRIs requested by Dr. Blanda were conducted on April 1, 2014, at St. Mary's Imaging Center.

On April 23, 2015, a management conference was held consisting of Dr. Blanda, Travelers Insurance Company's representative, Ms. Claire Brown, and Ms. Smith's attorney, Ms. Gloria Angus. The three individuals discussed a note in Dr. Blanda's June 3, 2014 report that an evaluation of Ms. Smith's right knee had not been approved by the workers' compensation insurer. Dr. Blanda was then informed for the first time that Dr. Joseph Bozzelle, Jr. was also treating Ms. Smith and had recommended an X-ray of Ms. Smith's right knee. Dr. Blanda agreed with the recommendation and suggested that an MRI also be conducted. Dr. Blanda further stated that he had no additional recommendations for treatment from an orthopedic standpoint and that Ms. Smith had reached Maximum Medical Improvement (MMI).

On April 24, 2015, shortly after the management conference, an addendum note to Dr. Blanda's January 27, 2015 report on Ms. Smith stated, "Dr. Blanda had a conference yesterday, 4-23-15, with the patient's case manager. Dr. Blanda is discontinuing the patient's treatment here and deferring to Dr. Bozzelle." Effective January 27, 2015, Dr. Blanda was no longer treating Ms. Smith. However, sometime after Dr. Blanda's 2015 retroactive relinquishment of Ms. Smith's treatment, she returned to Dr. Blanda's care. On March 23, 2016, Dr. Blanda requested an MRI of Ms. Smith's right knee, which was timely approved by the defendants on March 24, 2016.

Ms. Smith further admitted that after the accident, she had X-rays taken of both knees at University Medical Center (UMC). She confirmed that on a subsequent visit to another physician in Lake Charles, she was told that she had osteoarthritis in both of her knees. An emergency room record from UMC dated November 25, 2014, which was admitted into evidence, confirmed the diagnosis of osteoarthritis in both of Ms. Smith's knees. Ms. Smith testified that she was not sure she ever saw the documentation of osteoarthritis from UMC, but finally agreed to knowing of the diagnosis of osteoarthritis in both of her knees.

The diagnosis of osteoarthritis was further confirmed by a report dated September 17, 2015, from the Louisiana Specialty Institute, where Ms. Smith underwent X-rays of her knees at the request of Dr. Bozzelle, from whom she was also seeking treatment. Ms. Smith testified that Dr. Bozzelle had also informed her of the diagnosis of osteoarthritis in both of her knees. Ms. Smith was cross-examined about pre-accident progress notes from Stafford Health Care dated September 13, 2013, which indicated under the patient history section, "Her knee no longer gives her any trouble." Ms. Smith admitted that she had provided the information in the Stafford Health Clinic Progress Notes.

The documentation submitted into evidence was thoroughly reviewed by the WCJ who correctly determined that Ms. Smith had been diagnosed with osteoarthritis of her right knee on several occasions and had received extensive evaluation and treatment of her right knee. Based on the testimony and record evidence, the WCJ issued oral reasons and found:

The issue in this case is whether the condition of the right knee of Ms. Smith is a compensable injury. At the outset, it's important to note, that defendant has accepted the right knee as a compensable claim. Treatment for that knee has been authorized by the defendant.
The issue in this case is whether the defendant has authorized and paid for treatment for the right knee. The Court finds that the injury to the right knee is a compensable claim. The Court further finds that the defendant has properly authorized treatment for the right knee. Specifically, the defendant has authorized an MRI, which was performed on the knee. After a review of the medical records of Dr. Blanda and Dr. Bozzelle, the Court does not find where the physicians have made a request for any specific treatment for the knee that has not been authorized by the defendant's. The plaintiff had her right knee examined at University Medical Center. She has then had her knee examined by Dr. Blanda and Dr. Bozzelle. Dr. Blanda requested that an MRI be performed on the knee for diagnostic purposes. That was approved on March 23, 2016.
The Court does not find that any other treatment has been requested for the right knee in this matter. Therefore, the Court does not find that the defendant is arbitrary and capricious, and the Court denies the claim for penalties and attorney fees. It's important to note that Ms. Smith has been diagnosed with bilateral knee osteoarthritis. The right knee is compensable, because the Court finds that there was an exacerbation of her condition due to the accident.

We find no manifest error in the WCJ's findings that the defendants approved the only properly submitted 1010 Form from Ms. Smith's chosen orthopedic surgeon, Dr. Blanda.

Penalties and Attorney Fees

A panel of this court clearly defined the basis for an award of penalties and attorney fees in Landry v. Furniture Center , 05-643, p. 10 (La.App. 3 Cir. 1/11/06), 920 So.2d 304, 311, writ denied , 06-358 (La. 4/28/06), 927 So.2d 290 :

Under La.R.S. 23:1201(F), a claimant in a workers' compensation claim has the burden of proving his entitlement to statutory penalties for the employer's refusal or failure to timely pay workers' compensation benefits. To avoid the imposition of penalties and attorney fees, the employer and its insurer must provide factual and medical evidence to reasonably controvert a workers' compensation claim. Bolton v. Mike Fleming Construction , 36,521 (La.App. 2 Cir. 12/11/02), 833 So.2d 1177. The employer must have an "articulable and objective reason to deny benefits at the time it took the action."
Authement v. Shappert Engineering , 02-1631[, p. 11] (La. 2/25/03), 840 So.2d 1181, 1188.

"Whether or not the employer is cast with attorney fees and penalties is a question of fact that will not be reversed on appeal absent manifest error." Lambert v. Brookshire Grocery Co. , 06-1001, p. 11 (La.App. 3 Cir. 12/20/06), 945 So.2d 918, 927.

Based on the record before us, we find the WCJ did not commit manifest error in finding that the defendants were not arbitrary and capricious in the handling of Ms. Smith's treatment of her right knee. The defendants properly responded to and approved the one and only request made by Dr. Blanda on the required 1010 Form to conduct an MRI on Ms. Smith's right knee. Thus, the defendants successfully "reasonably controverted" Ms. Smith's claim based on both the medical and factual evidence submitted into the record at the hearing. See Bolton , 833 So.2d at 1177. Therefore, we find that the WCJ properly denied penalties and attorney fees sought in Ms. Smith's September 22, 2014 Form 1008 claim.

CONCLUSION

For the foregoing reasons, we affirm the November 14, 2016 judgment of the Workers' Compensation Judge in all respects. We further deny the Motion to Strike filed on behalf of Circle K Stores, Inc., and its workers' compensation insurer, Ace American Insurance Company. All costs of this appeal are assessed to Melody P. Smith.

AFFIRMED, MOTION TO STRIKE DENIED.

      Ms. Smith also filed an intentional tort suit against Circle K, which has since been dismissed by another panel of this court in Smith v. Sam , 17-664, (La.App. 3 Cir. 2/7/18), 237 So.3d 1204.

      Although "Traveler[']s" was named as an insurer on Ms. Smith's September 22, 2014 1008 Claim Form, Dr. Blanda's medical records at the time the 1008 was filed show "Traveler's Comp. Insurance" as the payor of the medical treatment rendered to Ms. Smith, and a representative of Traveler's attended the April 2015 management conference discussed later in this opinion, Circle K Stores, Inc. and Ace American asserted in their answer that Traveler's did not insure Circle K Stores, Inc. by stating: "Now ... come Circle K Stores, Inc. and Ace American Insurance Company, (improperly identified as 'Ace American Insurance Company/Travelers')[.]"

      Louisiana Administrative Code Title 40, Part I, Section 2715(D)(2) (entitled "Evaluation and Management Visits") provides the requirements for routine office visits and evaluations in subsection a.

      January 27, 2015 was the last time Dr. Blanda saw Ms. Smith before the April 23, 2015 management conference.

      The record does not evidence when Dr. Blanda resumed treating Ms. Smith. It only contains a copy of Dr. Blanda's March 23, 2016 MRI request.

      Ms. Smith's complete medical records from Dr. Bozzelle were proffered by Ms. Smith at the hearing after the defendants objected that the medical records were not properly certified. However, the Louisiana Specialty Institute document referencing Dr. Bozzelle's treatment of Ms. Smith was properly submitted into evidence without objection.