text:
    The LIVING EPISTLE CHURCH, Plaintiff-Appellee v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 45,276-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      The Malone Law Firm, L.L.C. by: Dan-nye W. Malone, Joseph W. Greenwald, Jr., for Appellant.
    Carl Henry Franklin, for Appellee.
    Before WILLIAMS, GASKINS & PEATROSS, JJ.
   PEATROSS, J.

liThe Living Epistle Church (“the Church”) sued the City of Shreveport (“the City”) for damages to its sanctuary building allegedly caused by a leaking sewer main. The trial judge heard testimony from the pastor of the Church, Reverend Roy King, and several experts and ultimately concluded that the Church had carried its burden of proof and awarded $150,000 in damages. The City appeals, arguing that the claim has prescribed and, alternatively, that the Church failed to prove that the sewer main leaked or that any leak was the cause of the damage to the sanctuary. The Church has answered the appeal seeking an increase in damages to $300,000 and attorney fees of $10,000. For the reasons set forth herein, we reverse the judgment of the trial court and render judgment in favor of the City, dismissing the claims of the Church with prejudice.

FACTS

In September 2002, The Living Epistle Church purchased the property and buildings located at 3816 Virginia Avenue in Shreveport, formerly Wynn Methodist Church. At issue in the current litigation is the sanctuary building, which is a wood frame building with brick veneer constructed in the 1940s or 1950s. There is a concrete basement below the southern half of the building. The floor of the sanctuary is supported by the concrete basement walls and steel pipe columns. At the time of the purchase of the property by the Church, there was an existing 8in. sewer main running in an east/west direction 52 ft. 9 in. north of the north wall of the sanctuary building and 84 ft. 9 in. north of the basement of the sanctuary. The original sewer main had been in place since the 1920s; and, |2since that time, a two story building (not the sanctuary building at issue) had been erected on top of the line.

The record reflects, and it is undisputed, that beginning in March 2006, the Church began experiencing problems with liquid accumulation in the basement of the sanctuary building. Rev. King testified that the City was called on at least four occasions to pump the liquid out of the basement. The City responded promptly each time and pumped the liquid out of the basement at no charge to the Church. According to Rev. King, the liquid had the odor of sewage, which was detectable in the worship area on the main floor of the building. Rev. King further testified that, when he would smell the odor, he would check the basement and find it filled with raw sewage. He would then call the City to come pump the basement.

In July 2006, the City rerouted the original sewerage main and capped off the line at the manhole at the northeast corner of the sanctuary building. The line was then run in a southerly direction along the east wall of the sanctuary building, 24 ft. east of the east wall. Rev. King testified that there were no further problems after the rerouting of the sewer main.

The record contains the following accounts of what prompted the City’s decision to reroute the original sewer main. Dexter Grogan, a civil engineer with the engineering and surveying firm of NTB and Associates, evaluated the damage to the sanctuary building and testified as an expert for the City. Mr. Grogan testified and stated in his report that, according to Rev. King, the original sewer main (north of the sanctuary) had clogged and cracked, and that in March 2006 “the City investigated complaints from the | ¡¡church of sewerage backing up through the toilets of the church.” We note at this juncture that this is the only mention in the record of toilets backing up in the church. In fact, Rev. King testified that the only toilet in the basement of the sanctuary was non-functioning and that the alleged sewage in the basement was not from overflowing toilets, but from an outside source that was breaching the walls of the basement.

Since a structure was in existence over the main line, the City capped the line and rerouted the line down the east side of the sanctuary building. Ali Mustapha, the assistant city engineer, testified on behalf of the City that he was in charge of the rerouting of the sewer main at the Church. Mr. Mustapha explained that “somebody called” the City about the line being under a structure and he was asked to investigate rerouting the line. Finding it economically feasible, the City made the decision to reroute the line by removing the sidewalk down the eastern side of the sanctuary and replacing the sidewalk. Mr. Mustapha confirmed that no complaints had been made since the installation of the new sewer line.

Rev. King further testified that he first noticed the damage to the sanctuary on “the very day [the City] started the construction” on the new sewer main. Specifically, the walls on the east and west sides were leaning outward, with the east wall being the most pronounced, and the roof was sagging on the east side of the building. Rev. King contacted Gary Fenner, a civil and structural engineer and President of Fenner Consulting, LLC, to evaluate the building and ultimately obtained an estimate of cost of replacement from architect Misha Ferrell. Based on the information | ¿provided to him by Rev. King, Mr. Fenner opined that “an outside source” which “could have been the leaking sewer main” introduced enough water into the soil beneath the sanctuary basement to cause massive foundation failure. The Church filed suit for damages on July 12, 2007, alleging that the City’s failure to timely repair a leak in the sewer main prior to the installation of the new main line on or around July 14, 2006, caused the damage to the sanctuary building. At the conclusion of the Church’s evidence, the City moved for an involuntary dismissal based on prescription, which was denied. As stated, after the conclusion of the trial on the merits, the court rendered judgment in favor of the Church and awarded $150,000 in monetary damages. This appeal ensued.

DISCUSSION

On appeal, the City urges the following four assignments of error:

1. The Trial Court committed legal error in denying Plaintiffs Oral Motion for an Involuntary Dismissal based on Prescription.
2. The Trial Court committed legal error in ruling Plaintiffs proved the sewer line leaked.
3. The Trial Court committed legal error in ruling the leaking sewer line caused damage to the church’s sanctuary building.
4. The Trial Court’s award of $150,000 for damages allegedly sustained to the church’s sanctuary building was excessive and a clear abuse of discretion.

Assignment of Error No. 1: Prescription

Delictual actions are subject to a one-year period of liberative prescription which commences to run from the day injury or damage is | ¡¡sustained. La. C.C. art. 3492. The burden of proving that the suit has prescribed rests with the party pleading prescription. Boyd v. B.B.C. Brown Boveri, Inc., 26,889 (La.App.2d Cir.5/10/95), 656 So.2d 683, writ not considered, 95-2387 (La.12/8/95), 664 So.2d 417.

The City argues that the claims of the Church have prescribed because suit was filed on July 12, 2007, more than one year from June 2006, when the rerouting of the sewer line was completed by the City and when Rev. King first noticed the damage to the building. The City suggests that Rev. King testified that the work was done in June 2006. A complete reading of the record, however, reveals that, although Rev. King agreed to a statement made by counsel that the rerouting work was done in June 2006, he later expressly stated that the work was done in July 2006. Further, the petition alleges that the work was done on or about July 14, 2006, and Mr. Musta-pha testified that the work was done “sometime in July 2006.”

Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; of two possible constructions, that which favors maintaining, as opposing to barring, an action should be adopted. Boyd, supra, citing Lima v. Schmidt, 595 So.2d 624 (La.1992). Based on our review of the testimony, we find no error in the trial court’s conclusion that the City failed to carry its burden of proving that the claim was prescribed. We, therefore, find no error in the denial of the City’s motion for involuntary dismissal.

| (Assignments of Error Nos. 2 and 3: Existence of Leak and Causation

In a civil suit, the burden is on the plaintiff to prove the negligence of the defendant by a preponderance of the evidence. Stone v. Bullard, 43,996 (La.App.2d Cir.1/28/09), 2 So.3d 1241. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/ risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Id.

If the plaintiff fails to prove any one element by a preponderance of the evidence, the defendant is not liable. Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318.

In Assignment of Error No. 2, the City challenges the factual findings of the trial court that there was a leak in the original sewer main and that the alleged leak caused the damage to the sanctuary building. It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). Under this standard, the appellate court will review the entire record to determine whether the trial court’s findings were clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Dev’t., 617 So.2d 880 (La.1993). In order to reverse, the appellate court must find that a reasonable basis does not exist for the finding of the trial court and that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

Generally, the outset determination in the duty-risk analysis is the cause-in-fact element. Allums v. Parish of Lincoln, 44,304 (La.App.2d Cir.6/10/09), 15 So.3d 1117, writ denied, 09-1938 (La.11/20/09), 25 So.3d 803. As a threshold issue, however, we will first address the argument of the City that the Church failed to prove the most essential fact, that there was a leak in the original sewer main. After an exhaustive review of the testimony and engineers’ reports, we can find little, if any, evidence that proves the existence of a leak in the original sewer main that was located 84 ft. 9 in. north of the sanctuary basement.

Rev. King testified that he smelled and observed raw sewage in the basement of the sanctuary building, but he had no direct knowledge of the source of the alleged sewage. As previously mentioned, he testified that the only toilet in the basement of the building was non-functioning and speculated that the source of the alleged sewage was a leak in the original sewer main. Significantly, however, Rev. King was mistaken as to the location of the original main line. He testified that the line ran parallel to the east wall of the sanctuary, which is actually where the newly rerouted line ran — not the original main line which, as stated, was actually located 84 ft. 9 in. north of the basement of the sanctuary building. In order for raw sewage to enter the basement of the building, it would have to travel the 1884 ft. 9 in. to even reach the wall of the basement. The experts agreed that it would be highly unlikely for sewage to travel in the ground in excess of 84 ft. to fill the bottom of the basement of the sanctuary.

The existence of a leak and the mistaken assumption regarding the location of the original main line was apparently related by Rev. King to the Church’s expert, Mr. Fenner. Thus, Mr. Fenner relied on these representations in forming his opinion that a sewage leak could have caused the damage to the building. Notations in Mr. Fen-ner’s letter to Rev. King reference “coincidental” repairs to the sewer line (rerouting the line to run parallel to the damaged east wall) at the time the damage to the east wall became apparent to Rev. King. Mr. Fenner had no direct knowledge of any leak in the original main line prior to the rerouting work.

Further, Mr. Grogan testified and stated in his report that an investigation by the City revealed a clog in the original sewer main that was located underneath the two-story building (not the sanctuary) and that was causing the toilets to back up in the sanctuary building. Nowhere in Mr. Gro-gan’s report does he indicate that a leak in the original sewer main and the complaints of the Church precipitated the rerouting of the line.

Lonnie Faust, the assistant superintendent over water, sewer and maintenance for the City, also testified that the reason for the rerouting of the line was not due to a leak in the original main. He further testified that there were no visible signs of a leak above the ground, ie., a cave-in of the soil around the main line. When asked if it was even possible for sewage to migrate from the original line to the basement of the sanctuary building and |sdo damage, Mr. Faust answered “No sir. I don’t think that’s going to be possible.”

In addition, Loyd Hoover, a geotechnical engineer, provided expert testimony on behalf of the Church regarding soil borings completed by him to test the soil for organic matter at the base of the east wall of the sanctuary. Mr. Hoover testified that he drilled five soil borings, each ten feet in depth, in the area in which he was told by Rev. King that the sewer main was located — to the east of the sanctuary. Mr. Hoover collected the sterile specimens, tested them for organic matter and found none. Mr. Hoover opined, however, that, based on the history provided him by Rev. King, the lack of organic matter still did not preclude damage from leaking water (not sewage) which would cause expansion in the clay and, ultimately, damage to the foundation of the building. When questioned about the source of the water in the basement, Mr. Hoover responded, “I don’t have an opinion on where it came from. I was told it was — I don’t know where the water came from. I have no way of knowing where the water came from.”

In summary, there is scant evidence, consisting of the speculative testimony of Rev. King, that suggests that a leak existed in the original sewer main. We find, therefore, that the record lacks a reasonable basis on which to so conclude.

Assuming arguendo, however, that there was a leak in the original sewer main, we further find no reasonable basis in this record on which to conclude that any such leak was the cause-in-fact of the damage to the | insanctuary building. Cause-in-fact is a “but for” inquiry which tests whether the accident would or would not have happened but for the defendant’s substandard conduct. Id. The trial judge’s finding regarding cause-in-fact is a factual finding. Allums, supra.

In the case sub judice, there is no question that the sanctuary sustained damage. The Church claims that a leaking sewer main caused the damage; therefore, the question before us is “but for” the alleged leak in the original sewer main, whether the sanctuary would have sustained the damage at issue. Rosell, supra. While the City and the record present various possible causes of the damage to the sanctuary building, we are not faced with the question of what could have caused the damage. As a reviewing court, we must only decide whether the record contains a reasonable basis on which to find that a leaking sewer main caused the damage. In addition to the testimony and evidence discussed earlier in this opinion, the following testimony and our observations therefrom lead us to conclude that the trial court was manifestly erroneous in finding that a leaking sewer main caused the damage:

• Mr. Faust testified that he responded to the calls of the Church to pump standing water out of the basement of the Church on at least three occasions prior to July 2006. On each occasion, the water was clear and had no odor. He stated, “the times I went out there the liquid, the water was clear, fairly clear, and had no scent of sewer. It didn’t smell like — as much water was in that basement it would smell like sewer.” Mr. Faust further testified that he pumped the water out as a courtesy and was never of the opinion that it was a problem with a sewer line. He emphatically testified that he “could not justify or sit here and tell you that the sewer coming here went inside the basement ... I don’t see how it could happen.”
In*Following the rerouting of the sewerage main, a meeting was held at the Church with Mr. Faust, Rev. King and others present. Mr. Faust testified that there was still standing water present in the basement following the work, at which time he concluded that the water must be from another source. He stated, “well, it was basically the same scenario. It was just not a sewer smelling liquid. It was just what I considered fairly clear water .... still had water in the basement after we rerouted.”
• Ms. Ferrell, the architect hired by the Church, testified that she met Rev. King at the Church to evaluate the building from a restoration or replacement viewpoint. Her evaluation took place in late 2008, approximately a year and a half after the rerouting of the sewer main. Recall that Rev. King testified that there were no further problems following the rerouting work. Ms. Ferrell, however, testified that there was standing water in the basement during her visit. She stated, “We looked underneath the basement. It had liquid in it, water I’m assuming. So I did not wade in and it was dark.”
• Mr. Grogan testified that there were no sink holes or erosion in the area of the original main line. He further testified that there could not have been sewer water from the original main line, 84 ft. 9 in. to the north of the basement, breaching the east basement wall of the sanctuary. He opined that “the soil down at the sanctuary at the base of the sanctuary footing is probably always damp anyway. It probably never dries out down that deep.”
• Mr. Mustapha testified that he was also present at the post-rerouting meeting at the Church. Like Mr. Faust, Mr. Mustapha testified that there was “water sitting there in the basement” at the time of the 2008 meeting. He went further to state that “It’s almost the same thing I saw six, seven, eight years before it’s the same thing I saw ... That tells me there’s water in there. It’s a low area that’s either from rain water, ground water_” Mr. Mustapha also did not notice any erosion on the ground level.

Based on the totality of this evidence, we conclude that the trial court’s determination that any alleged leak in the original sewer main that was located north of the sanctuary building was a cause of the damage to the building was manifestly erroneous and is simply not supported by the | ^record. We recognize that the trial court indicated that it had made a credibility determination in favor of the Church’s experts; however, the opinions of Mr. Fenner and Mr. Hoover must be discounted because they were admittedly based on information provided by Rev. King that there was, in fact, a leak in the sewer main and the erroneous assumption of where the alleged leaking sewerage main was located. Furthermore, we stress that there is much discussion in the testimony and reports of the experts regarding the existence, age and prior repair of cracks in the exterior brick veneer, cracks in the concrete walls of the basement and failing trusses in the attic of the building and various opinions regarding possible causes therefor. Again, there is no dispute that there was damage to the building, by water or otherwise. Our holding herein is limited to the specific issue of the proof before us and our limited finding is that the Church failed to carry its burden of proving that a leak existed in the original sewer main, prior to its rerouting in July 2006, and that the alleged leak caused the complained of damage. A negative answer to any of the inquiries of the duty/risk analysis results in a determination of no liability. Mathieu, supra. We, therefore, reverse the judgment of the trial court finding the City hable for damages to the Church and dismiss with prejudice the claims of the Church.

In light of our conclusion herein, we pretermit any discussion of Assignment of Error No. 4 regarding damages and the answer to the appeal seeking an increase in damages.

1 ^CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of The Living Epistle Church is reversed and judgment is rendered in favor of the City of Shreveport. The claims of The Living Epistle Church are dismissed with prejudice. Costs of appeal are assessed against The Living Epistle Church.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Robin MORRISON, Plaintiff-Appellant v. FIRST BAPTIST CHURCH OF WEST MONROE, Defendant-Appellee.
    No. 45,277-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Street & Street, by C. Daniel Street, for Plaintiff-Appellant.
    Azelie Ziegler Shelby, for Defendant-Appellee.
    Before WILLIAMS, GASKINS and PEATROSS, JJ.
   GASKINS, J.

_JjThe plaintiff, Robin Morrison, appeals from a decision by the workers’ compensation judge (WCJ), granting a permanent credit against Ms. Morrison’s supplemental earnings benefits, for the offer of a job which, according to the plaintiff, no longer exists. For the following reasons, we affirm the decision of the WCJ.

FACTS

This matter was previously before this court in Morrison v. First Baptist Church of West Monroe, 44,189 (La.App.2d Cir.4/8/09), 7 So.3d 873. In that case, the plaintiff appealed from a judgment by the WCJ ending all workers’ compensation indemnity benefits on April 17, 2007, based upon a finding that the plaintiff had been offered a light-duty job which she refused. This court affirmed in part, reversed in part, and remanded for further proceedings.

The plaintiff was the kitchen manager for First Baptist Church of West Monroe (FBCWM). On March 11, 2007, she injured her left wrist while working in the church kitchen. She reported her accident to her supervisor, saw her general practitioner, and was referred to an orthopedic surgeon, Dr. Douglas Brown, who found that she had Kienbock’s disease. Dr. Brown concluded that the plaintiff’s work at FBCWM aggravated this preexisting condition. He recommended an MRI, use of a bone stimulator, and possibly surgery.

On April 12, 2007, FBCWM presented a light-duty job description to Ms. Morrison and Dr. Brown. The job was for 30 hours per week, in the church kitchen, at the plaintiffs current rate of pay. Dr. Brown approved |2the job on April 17, 2007, but the plaintiff refused to take it. Her workers’ compensation benefits were terminated and she filed a claim for compensation.

A hearing was held on April 21, 2008. The WCJ found that the plaintiff suffered an injury in the course and scope of her employment and was paid temporary total disability benefits (TTD) from March 11, 2007, to April 17, 2007. Because she rejected the light-duty job offer, the WCJ found that she was not entitled to supplemental earnings benefits (SEB). The WCJ found that the plaintiff was entitled to treatment and because the defendant failed to provide it, the plaintiff was awarded $2,000 in penalties and $5,000 in attorney fees. The plaintiff appealed, arguing that she was entitled to TTD or SEB beyond April 17, 2007.

In Morrison v. First Baptist Church of West Monroe, supra, this court found that the plaintiff was able to perform light-duty work and because she refused to do so, she was not entitled to TTD after April 17, 2007. Regarding the plaintiffs entitlement to SEB, the plaintiff showed that her pre-injury wage was $12.51 per hour and she worked 40 hours per week. The light-duty job offered pay at $12.51 per hour, but only for 30 hours per week. This was 75 percent of her pre-injury wage. Accordingly, this court found that the plaintiff was entitled to SEB. We reversed that part of the WCJ’s judgment denying the plaintiff SEB and remanded the ease to the WCJ for a determination of the appropriate amount.

On remand, a hearing was held before the WCJ on May 4, 2009, to determine the correct amount of SEB to be awarded to the plaintiff. At the [ shearing, the plaintiffs attorney inquired as to whether the light-duty job was still available. The plaintiff also testified that she had been earning some money by catering a meal once per month for the Senior Center in Monroe. The plaintiff stated that 1/3 of the money received went to purchase the food. The remaining 2/3 was her profit. In addition, the plaintiff did a limited amount of work assembling alligator shish kebabs for a local business. The hearing was continued to a later date in order to determine if the light-duty job at FBCWM still existed.

The hearing resumed on July 6, 2009. Billie Dupree, the food service director for FBCWM, testified that after the plaintiff was injured, the church offered to allow her to work as the kitchen manager with work restrictions to conform with the plaintiffs physical capabilities. The job called for 30 hours per week instead of the 40 hours per week the plaintiff worked before her injury. Ms. Dupree said that the job was still available. However, she stated that the other kitchen workers had resigned about the time the plaintiff was injured and new workers had not been hired. Ms. Dupree said that in the plaintiffs absence, the church had been having all the meals catered.

In a judgment filed July 29, 2009, the WCJ specified that SEB were awarded based upon the difference between the pre-injury wage and the light-duty job, with a credit for the money earned assembling shish kebabs and a credit for 2/3 of the amount earned on the monthly catering job. The |4court set forth the amount per month due to the plaintiff from April 2007 through April 2009.

The plaintiff appealed from the WCJ ruling. She argues that the WCJ erred in granting FBCWM a permanent credit against SEB for the offer of a job that no longer exists. According to the plaintiff, the light-duty job offered by the church was to supervise other cooks in the kitchen and to do paperwork. She claims that the other two kitchen workers left the job at the church around the time that the plaintiff was injured. The plaintiff argues that if she took the offered job, she would have to do all the cooking by herself, in a reduced 30-hour work week. She claims that this was not the job approved by the orthopedic surgeon. The plaintiff contends that the light-duty job ceased to exist in May 2007 and after that time, no credit should be given against her SEB award for a job that does not exist. This argument is without merit.

Legal Principles

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 1996-2840 (La.7/1/97), 696 So.2d 551; Seal v. Gaylord Container Corporation, 1997-0688 (La.12/02/97), 704 So.2d 1161. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; Seal v. Gaylord Container Corporation, supra. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; Seal v. Gaylord Container Corporation, supra. 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 if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; Seal v. Gaylord Container Corporation, supra.

The purpose of SEB is to compensate the injured employee for the wage-earning capacity he has lost as a result of his accident. An employee is entitled to receive SEB if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; La. R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. This analysis is necessarily a facts and circumstances one in which the court is mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; Seal v. Gaylord Container Corporation, supra.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEB or establish the | ^employee’s earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. La. R.S. 23:1221(3)(c). Actual job placement is not required. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra; Seal v. Gaylord Container Corporation, supra. The amount of SEB is based upon the difference between the claimant’s pre-injury average monthly wage and the claimant’s proven post-injury monthly earning capacity. La. R.S. 23:1221(3)(a).

According to the supreme court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra, an employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:

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

A “suitable job” is one that the claimant is not only physically capable of performing, but one that also falls within the limits of the claimant’s age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education. Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra.

|7If the employer carries its burden of proving that a suitable job was offered to the claimant or was available within the claimant’s or the employer’s community or reasonable geographic region, then the claimant must show by clear and convincing evidence, unaided by any presumption of disability, that she was unable to perform the offered or available employment, solely as the result of substantial pain. See La. R.S. 23:1221(3)(c)(ii); Brooks v. Madison Parish Service District Hospital, 41,957 (La.App.2d Cir.3/7/07), 954 So.2d 207, writ denied, 2007-0720 (La.5/18/07), 957 So.2d 155.

Discussion

On remand, the plaintiff sought to show that the light-duty job was no longer available and argued that FBCWM should not be given a credit against its SEB obligation for the salary for that position. The plaintiff argues that the WCJ has continuing jurisdiction over compensation awards and can modify awards based upon a change in circumstances. She cites La. R.S. 23:1310.8 in support of this argument.

|sThe wording of La. R.S. 23:1310.8(C) clearly states that the section does not apply to the calculation of the monthly amount for SEB. The power of modification exists for the purpose of modifying an award due to the change in “conditions” related to the capacity of the employee. See 13 Malone and Johnson, Louisiana Civil Law Treatise-Workers’ Compensation § 284 (4th ed.2002). There has been no showing of a change in the plaintiffs capacity in this case.

At the hearing on remand, Ms. Dupree testified that the job was still available. The plaintiff acknowledges that the job was available through May 2007. The plaintiffs argument overlooks the clear mandate of the supreme court in Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra, that the employer show that the job is available “at the time the claimant received notice of the job’s existence.” On the prior appeal, FBCWM made such a showing. There is no requirement under the law that the employer show continued availability of the job for an indefinite period of time. Had FBCWM shown that this particular job would have paid 90 percent or more of the plaintiffs pre-injury wage, her claim for SEB would have been defeated rather than her recovery merely reduced.

Under the facts presented here, FBCWM adequately established by a preponderance of the evidence that a suitable job at the church was available at the time it was offered to the plaintiff. The job was approved by the plaintiffs physician, and therefore was within her physical capabilities. |aThe church also showed that the plaintiff could have earned 75 percent of her pre-injury wage in the light-duty position. The WCJ did not err in allowing a permanent credit against the SEB amount due the plaintiff for the salary associated with the job offered by FBCWM.

FRIVOLOUS APPEAL

FBCWM claims entitlement to damages, attorney fees, and costs under La. C.C.P. art. 2164 because the plaintiff has filed a frivolous appeal. That statute provides in pertinent part:

The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

However, FBCWM did not raise the issue by filing an appeal or an answer to the appeal. Therefore, this court may not assess any frivolous appeal damages, costs or attorney fees. Brooks v. Madison Parish Service District Hospital, supra.

CONCLUSION

For the reasons stated above, we affirm the decision of the WCJ reducing the amount of SEB awarded to the plaintiff, Robin Morrison, by the amount she could have earned at the job offered by the defendant, First Baptist Church of West Monroe, and by the amounts earned at other jobs. Costs in this court are assessed to the plaintiff.

AFFIRMED.

      . Pursuant to a joint motion, the judgment was amended to correct two typographical errors in the monthly amounts due to the plaintiff for August and September 2007.

      . La. R.S. 23:1310.8 provides in pertinent part:
      A.(1) The power and jurisdiction of the workers’ compensation judge over each case shall be continuing and he may, upon application by a party and after a contradictory hearing, make such modifications or changes with respect to former findings or orders relating thereto if, in his opinion, it may be justified, including the right to require physical examinations as provided for in R.S. 23:1123; however, upon petition filed by the employer or insurance carrier and the injured employee or other person entitled to compensation under the Worker’s Compensation Act, a workers' compensation judge shall have jurisdiction to consider the proposition of whether or not a final settlement may be had between the parties presenting such petition, subject to the provisions of law relating to settlements in workers’ compensation cases.
      B. Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.
      C. This Section shall not apply to the calculation of the monthly benefit amount pursuant to R.S. 23:1221(3).


author: MOORE, J.

text:
    CITY OF BOSSIER CITY, Plaintiff-Appellant v. Roy Lee COLVIN Defendant-Appellee.
    No. 45,278-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Pettiette, Armand, Dunkleman, Wood-ley, Byrd & Cromwell by Robert A. Dunk-elman, for Appellant.
    Street & Street by C. Daniel Street, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

_JjThe City of Bossier City appeals a judgment of the Office of Workers’ Compensation awarding a former Bossier City firefighter, Roy Lee Colvin, medical expenses under the Firefighters’ Heart and Lung Act, La. R.S. 33:2581 (“the Act”). Colvin answers the appeal, seeking indemnity benefits, a penalty and attorney fee. For the reasons expressed, we affirm.

Factual Background

Colvin began his career with the Bossier City Fire Department in 1972. He worked several years as a firefighter before moving to the Fire Prevention Division. Both in operations and fire prevention he was exposed to much smoke. He ultimately became Chief of Fire Prevention and retired in June 1993 at a salary of $3,328 per month. At the time, he was very stressed, with chest pains and high blood pressure, but he retired mainly because it was advantageous under the former retirement system.

Colvin then went to work for the Bossier Sheriffs Office, Corrections Division, driving inmates to work assignments. He continued to suffer with breathing problems, swollen legs, high blood pressure, hyperli-pidemia (excessive lipids in the blood), Type 2 diabetes and mild obesity. It never occurred to him that exposure to smoke while working as a firefighter years earlier might have contributed to his health condition.

In early November 2003 Colvin had such a serious onset of chest pain and short breath that he went to the Willis Knighton emergency room. The cardiologist on duty, Dr. Michael Walton, diagnosed unstable angina; a heart catheter and echo-cardiogram showed severe blockage of all of Colvin’s major arteries. A cardiac surgeon, Dr. Laurence Hiller, performed |2a quadruple bypass. In spite of complications including COPD (chronic obstructive pulmonary disease), Dr. Walton felt the surgery initially yielded good results. Col-vin took three months to recuperate, using accumulated leave from the sheriff’s office, and then returned to work at the penal farm in a desk job coordinating inmate transportation.

Colvin testified that while he was in the hospital, someone told him he could apply for benefits under the Act; in early 2004, he called the city’s risk manager, who “set it all up” with the third party workers’ compensation administrator, F.A. Richard & Associates (“FARA”). FARA began paying his doctor and pharmacy bills, including a CPAP (continuous positive airway pressure) device to alleviate sleep apnea, cardio rehab at Willis Knighton, and mileage.

Even with the surgery and rehab, Col-vin’s health problems persisted. He had to check into Willis Knighton in 2004 and 2006 with shortness of breath; tests showed diminished heart muscle function. He finally retired from the Sheriffs Office in February 2008, but drew his regular pay until September 18, 2008, using accumulated annual leave and two periods of catastrophic illness leave. His average weekly wage at the time was $1,009.

Colvin testified that in early February 2008, he went to Wal-Mart to get one of his prescriptions refilled, but the cashier informed him that FARA would not pick up the tab. He called and found that FARA was no longer the city’s third party administrator. Since then, he has had to pay for his prescriptions out of pocket, and has received no reimbursement for mileage from his home in Benton to Willis Knighton South. He admitted |sthat he has never requested reimbursement from the city’s current third party administrator, identified in brief as Gallagher Bassett Services.

Procedural History and Trial Evidence

The city filed the instant disputed claim in February 2008, essentially requesting a declaratory judgment as to the cause of Colvin’s heart and lung disease and sleep apnea.

Colvin filed a reconventional demand in March 2008, demanding indemnity benefits based on his average weekly wage with the Sheriffs Office and the resumption of all medical benefits under the Act. He also demanded the statutory penalty and attorney fee.

The city filed an exception of prescription as to all claims.

At trial in February 2009, Colvin testified as outlined above. He admitted that he had been a moderate smoker many years ago but quit before going to work for the Fire Department at age 29 in 1972 (in Willis Knighton records he said he quit in 1976). He also testified that in his current state of health, he could not return to any kind of employment. In addition, he had just turned 65 and applied for Social Security old-age benefits.

Three of Colvin’s treating physicians testified by deposition. Cardiologist Dr. Walton, who began treating Colvin in November 2003, and cardiac surgeon Dr. Hil-ler, who performed the bypass operation, were unaware at the time that he had ever been a firefighter. In fact, they had never heard that firefighting was associated with heart disease until they were called to testify in this case. They ascribed Colvin’s condition to |4plaque buildup in the arteries, hypertension and diabetes. On cross-examination, Dr. Walton could not “rule out” 21 years of firefighting as a cause of coronary artery disease and COPD, and Dr. Hiller agreed that smoke can damage the lungs. The third expert, critical care physician Dr. Raghu Nathan, had treated Colvin for various problems since 1997. He testified that Colvin had “restrictive lung disease,” essentially a diminished lung volume, and that firefighting contributed to this and to COPD, but he had no opinion as to whether it caused his heart problems.

Action of the WCJ

In reasons for judgment rendered orally on March 31, 2009, the WCJ ruled that because Colvin worked for the Fire Department more than five years, the Act created a presumption that his heart or lung disease was caused by his employment. However, by the time of surgery in November 2003, Colvin knew that heart disease had manifested itself, and that it had disabled him, as he was moved to a sedentary job; and he had reasonable grounds to believe it was occupationally related, as he made a claim with FARA for medical benefits. Even with this knowledge, Colvin did not file a disputed claim until March 2008. The WCJ therefore found that the claim for indemnity benefits was prescribed, while the claim for medical expenses was still valid because the city had continued to pay them until February 2008. Finally, the WCJ found that the city brought a legal and factual issue to trial, precluding the award of a penalty and attorney fee.

|,.;The city has appealed, and Colvin has answered the appeal.

Discussion: Causation

By one assignment of error, the city urges the WCJ committed manifest error in finding Colvin’s heart condition causally related to his employment. It concedes that the Act creates a rebuttable presumption of causation in Colvin’s favor, but contends that it rebutted this with expert testimony, such as Dr. Hiller’s remark, “I’ve never seen any studies that correlated those two.” It argues that the utter absence of expert evidence to relate Colvin’s employment as a firefighter from 1972 to 1998 to his heart attack in 2003 distinguishes this from earlier cases finding causation, such as Coats v. City of Bossier City, 31,164 (La.App. 2 Cir. 10/30/98), 720 So.2d 1283, writ denied, 99-0019 (La.2/12/99), 738 So.2d 581, and Rothell v. City of Shreveport, 25,182 (La.App. 2 Cir. 10/27/93), 626 So.2d 763. It also submits that the rebuttal evidence is stronger than in Gilliland v. City of Monroe, 42,458 (La.App. 2 Cir. 10/10/07, 968 So.2d 270), writ denied, 2007-2476 (La.3/7/08), 977 So.2d 908, which found no causation. The city concludes the award should be reversed.

Colvin responds that the Act’s presumption of causation cannot be rebutted by evidence that is only equivocal. McCoy v. City of Shreveport, 26,181 (La.App. 2 Cir. 1/25/95), 649 So.2d 103; McClure v. City of Pineville, 2006-279 (La.App. 3 Cir. 12/6/06), 944 So.2d 795. Colvin urges the experts said only that they were unaware of any correlation between firefighting and heart disease, thus making their views equivocal and insufficient to rebut the presumption. He concludes that the finding of |ficausation was not plainly wrong.

The Act provides as follows:

§ 2581. Development of heart and lung disease during employment in classified fire service; occupational disease.
Any disease or infirmity of the heart or lungs which develops during a period of employment in the classified fire service in the state of Louisiana shall be classified as a disease or infirmity connected with employment. The employee affected, or his survivors, shall be entitled to all rights and benefits as granted by the laws of the state of Louisiana to which one suffering an occupational disease is entitled as service connected in the line of duty, regardless of whether the fireman is on duty at the time he is stricken with the disease or infirmity. Such disease or infirmity shall be presumed, prima facie, to have developed during employment and shall be presumed, prima facie, to have been caused by or to have resulted from the nature of the work performed whenever same is manifested at any time after the first five years of employment.

The Act creates a presumption that the nature of a firefighter’s work caused, contributed to, accelerated or aggravated his heart disease or infirmity which manifests itself after the first five years of employment. McCoy v. City of Shreveport, supra. Once the firefighter establishes that the presumption is applicable, the employer must then prove that the disease did not develop during his employment to relieve itself from the obligation of workers’ comp benefits. McClure v. City of Pineville, supra. To meet this burden, the employer must produce affirmative evidence that the firefighter’s heart or lung condition did not develop during his employment. McClure v. City of Pineville, supra, and citations therein; Rothell v. City of Shreveport, supra.

|7On close review, we agree that the expert medical testimony was essentially neutral as to causation. Drs. Walton and Hiller professed no awareness that firefighting was a factor in heart or artery disease, though Dr. Hiller admitted that smoke inhalation can damage the lungs. Dr. Nathan positively ascribed Colvin’s restrictive lung disease to firefighting, but would state no view as to the cause of his heart disease. Standing alone, this evidence would probably have fallen short of proving that Colvin’s 21-year career in firefighting caused his heart and lung condition. However, the Act supplied a presumption of causation which the city was required to rebut. We do not view this record as rebutting that presumption. The WCJ was not plainly wrong to find causation; this assignment lacks merit.

Prescription

By answer to appeal, Colvin urges the WCJ erred in sustaining the exception of prescription as to indemnity benefits. He contends that the Act places no time limit on the development of the disease, and that a six-year-old claim was affirmed in. Coats v. City of Bossier City, supra. He also asserts that after his bypass, he sustained no loss of income until September 2008, and that his Sheriff’s Office salary can be treated as wages in lieu of compensation, as in Ray v. City of New Orleans, 284 So.2d 83 (La.App. 4 Cir.), writ ref'd, 286 So.2d 661 (1973). Still further, he urges that under R.S. 23:1314 A(l), his action for indemnity benefits was premature until he could allege “that he is not being paid or has not been paid[.]” Finally, he suggests that given the remedial nature of workers’ compensation, the court should resolve any conflict between the prescription statute, R.S. 23:1031.1 |8E, and the administrative statute, R.S. 23:1314, in favor of the claim, as the court apparently did in Butler v. Parish of Jefferson, 06-669 (La.App. 5 Cir. 1/30/07), 951 So.2d 1218. By a second assignment of error, Colvin urges that his compensation rate should be based not on his average weekly wage when he retired from the Fire Department in 1993 ($768) but when he became disabled in 2008 ($1,009), for the maximum rate of $522.

The city responds that courts routinely apply the prescription statute to claims under the Act. McElwee v. City of Bossier City, 34,845 (La.App. 2 Cir. 12/6/00), 775 So.2d 588, writ denied, 2001-0049 (La.3/9/01), 786 So.2d 737; Broussard v. Citgo Petroleum Corp., 02-895 (La.App. 3 Cir. 12/30/02), 834 So.2d 1282, writ denied, 2003-0301 (La.4/4/03), 840 So.2d 1219. The city submits that the WCJ correctly applied the facts to R.S. 23:1031.1 E to reject the indemnity claim.

The prescription of occupational disease claims in workers’ compensation is regulated by La. R.S. 23:1031.1 E:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim as provided in this Chapter within one year of the date that:
(1) The disease manifested itself.
(2) The employee is disabled from working as a result of the disease.
(3) The employee knows or has reasonable grounds to believe that the disease is occupationally related.

All three elements must be satisfied before prescription begins to run on an occupational disease claim. Bynum v. Capital City Press, 95-1395 (La.7/2/96), 676 So.2d 582; Lee v. Schumpert, 36,733 (La.App. 2 Cir. 1/29/03), 836 So.2d 1214. Although the Act is not specifically incorporated into the workers’ compensation law, its provision of a service-related occupational injury is applicable to workers’ compensation cases. Coats v. City of Bossier City, supra; Johnson v. City of Lake Charles, 2004-0455 (La.App. 3 Cir. 9/29/04), 883 So.2d 521.

The city correctly shows that the time limitation of R.S. 23:1031.1 E applies to claims made under the Act. McElwee v. City of Bossier City, supra; Broussard v. Citgo Petroleum Corp., supra; Vincent v. City of New Orleans, 326 So.2d 401 (La.App. 4 Cir.1975), writ ref'd, 329 So.2d 760 (1976). The WCJ did not err in applying § 1031.1 E to this claim. The disease obviously manifested itself in November 2003 when Colvin’s chest pain grew unbearable and tests showed several blocked arteries; it disabled him for three months after surgery. Colvin’s candid admission that in the hospital someone told him he could make a claim under the Act, which he did in early 2004, created reasonable grounds for him to believe the disease was occupationally related.

The fact that Colvin drew his Sheriffs Office wages until 2008 is immaterial. The jurisprudential concept of “wages in lieu of comp” to suspend prescription applies only to unearned wages. Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972); Reeves v. Reeves Dirt Pit, 606 So.2d 881 (La.App. 2 Cir.1992); Feyerabend v. Boomtown Casino, 08-807 (La.App. 5 Cir. 2/25/09), 9 So.3d 228. Nothing in this record indicates that his salary as a sheriffs deputy was unearned. Moreover, after his surgery Colvin sustained a loss of three months’ wages; | Uleven though he was able to cover this with accumulated leave time, it was an allegation that would have satisfied the minimal pleading requirement of R.S. 23:1314 A(l).

The WCJ was not plainly wrong to find that Colvin’s claim for indemnity benefits was prescribed. Because of this conclusion, we express no opinion as to Colvin’s second assignment of error, concerning his compensation rate. These assignments of error lack merit.

Penalty and Attorney Fee

By a final assignment of error, Col-vin urges the WCJ erred in failing to assess the statutory penalty of $2,000 and a reasonable attorney fee. He contends that the city did not reasonably controvert his claim and, in fact, subjected him to legal fees by filing a disputed claim.

The city responds that it successfully showed that the indemnity claim was prescribed and that Colvin had never sought reimbursement of medical expenses from its current third party administrator; these facts were sufficient to defeat the claim for a penalty and attorney fee.

Failure to provide payment of benefits will result in a penalty and attorney fee “unless the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201 F(2); McCarroll v. Airport Shuttle Inc., 2000-1123 (La.11/28/00), 773 So.2d 694; J.P. Morgan Chase v. Louis, 44,309 (La.App. 2 Cir. 5/13/09), 12 So.3d 440. The phrase “reasonably controvert” means that the employer or insurer must have “some valid reason or evidence on which to base his denial of benefits.” Brown v. Tex-LA Cartage Inc., 98-1063 (La.12/1/98), 721 So.2d 885; J.P. Morgan Chase v. Louis, supra. Awards of penalties and attorney fees in compensation cases are essentially penal, and are intended to deter indifference and undesirable conduct by employers and their insurers toward injured workers. Trahan v. Coca Cola Bottling Co., 2004-0100 (La.3/2/05), 894 So.2d 1096; Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721. Penalties should not be imposed in doubtful cases, where a bona fide dispute exists as to the claimant’s entitlement to benefits. J.E. Merit Constructors Inc. v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435; J.P. Morgan Chase v. Louis, supra.

We are sensitive to the fact that the city filed this disputed claim, even though it had been paying medical benefits for four years. While it is unusual for the employer to initiate the claims process, this is preferable to terminating benefits unilaterally — a decision that probably would have been viewed as arbitrary, capricious, and indifferent to the employee’s interest. In addition, the city raised a serious issue as to causation and showed that the indemnity claim was prescribed. On this record, the WCJ did not abuse its discretion in denying the claim for a penalty and attorney fee. This assignment lacks merit.

Conclusion

For the reasons expressed, the judgment is affirmed. All appellate filing fees have been prepaid; no further costs are assessed.

AFFIRMED.


author: LOLLEY, J.

text:
    Grant Lee WILLIAMS, Plaintiff-Appellee v. Michael J. MOORE, Defendant-Appellant.
    No. 45,299-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.

      Frank V. Zacearía, Jr., Roland V. McKneely, III, for Appellant.
    Ronald J. Miciotto, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ,In this battery case, defendant, Michael Moore, appeals a judgment of the Twenty-Sixth Judicial District Court, Parish of Bossier, State of Louisiana, which found in favor of the plaintiff, Grant Lee Williams. For the following reasons, we affirm.

FACTS

On May 28, 2006, Williams and Moore were patronizing a bar, Saddle Ridge, formerly located on the Louisiana Boardwalk. Williams was there with a friend, Luis LeVargas, and his fiancée (now wife), Lisa Lobrano. At some point during the evening, Moore approached Lobrano at the bar and touched her inappropriately. Seeing this, Williams told Moore that Lobrano was his girlfriend and advised him to leave her alone. After a verbal exchange, Williams and Lobrano walked toward the exit. On the way out, Moore struck Williams in the face. The emergency medical team at the Louisiana Boardwalk were called to the scene and treated Williams. Lobrano eventually took Williams to the emergency room. As a result of the attack, Williams sustained multiple facial fractures including a broken nose and an orbital “blow-out.”

After a bench trial, the trial court ultimately found that both Moore and Williams were equally at fault. Accordingly, the trial court reduced the total damage amount by half and awarded damages to Williams totaling $35,450.66. Moore now appeals.

|2LAW and discussion

An appellate court generally reviews the factual findings of a trial court according to the manifest error standard of review. Powell v. Regional Transit Authority, 1996-0715 (La.06/18/97), 695 So.2d 1326. This standard applies equally in jury trials and judge trials. Id. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Id. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

Tort liability is based on La. C.C. art. 2315, which states, “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Further, La. C.C. art. 2323 provides:

A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of a fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person’s insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to degree or percentage of negligence attributable to the person suffering the injury, death, or loss.
|SB. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced.

The factors to be considered by the courts in determining the percentages of fault are the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages. Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967 (La.1985). In a suit for damages resulting from an intentional tort, the claimant must carry the burden of proving all prima facie elements of the tort, including lack of consent to the invasive conduct. In turn, the defendant may seek to prove that he is without fault because his actions were privileged or justified, such as self-defense. Landry v. Bellanger, 2002-1443 (La.05/20/03), 851 So.2d 943.

Self-defense, unlike the aggressor doctrine, is a true defense in that it operates as a privilege to committing the intentional tort. In such a case, a plaintiffs conduct must have gone beyond mere provocation under the aggressor doctrine. Under Louisiana jurisprudence, in order to succeed on a claim of self-defense (not involving deadly force), there must be an actual or reasonably apparent threat to the claimant’s safety and the force employed cannot be excessive in degree or kind. Id.

In this case, several people testified. According to Lisa Lobrano, while she was standing at the bar waiting for a drink, Moore walked by and 14skimmed the underside of her breasts with his hand. Lobrano testified that she told Moore to “leave her alone and that [she] had a boyfriend” and pointed to Williams who was walking up to her at that moment. Lobra-no told Williams that she wanted to leave. As they walked out of the bar, Lobrano described that what she saw next was Williams turning towards her and there was blood coming from his face. Lobrano testified that she did not see a bottle in Moore’s hand, and she did not see if Williams swung first. Lobrano further testified that Moore kicked Williams in the ribs after Williams went down.

Williams testified that he saw Moore approach Lobrano and noticed Lobrano looked uncomfortable, so he proceeded to walk toward her. He admitted “pushing” or “bumping” Moore as he walked out. As he was leaving, Williams recalled seeing Moore from the corner of his eye and then was blindsided by Moore’s punches. He also related that he was kicked in the ribs.

Moore, on the other hand, states that he did not touch Lobrano at all and merely apologized for “bum-rushing her” at the bar. Moore stated that Williams came up to him and at first shoved him, and then punched him in the eye. Moore explains that he started to swing, and “must have hit [Williams]” since he was “obviously hurt.”

Other bystanders testified, but did not see the actual altercation. Michael DeSil-va and Holhe Parrie, both friends of Michael Moore and at the bar with him that night, testified they heard two “pops” but did not see who hit whom. Both did notice that Moore’s eye was noticeably red and | ^swollen. Robbie Graham, Moore’s best friend, witnessed the incident and stated that “[Williams] asked [Moore] why was he talking to his girlfriend.... And immediately pushed him in the chest real hard.” Graham further testified that “[Williams] hit [Moore] in his eye. And it went from there.” Graham did not believe that Moore had anything in his hands when he started to “defend himself.” He also did not see Moore kick Williams after he went down.

Aaron Meyers, the EMT who treated Williams on the scene, testified that he recalled being called out that night to the scene a little after midnight. He also recalled seeing Williams with a swollen right eye and a large laceration beneath his eye. According to Meyer, he cleaned off blood and small glass-looking particles from the area around his eye and thought that Williams possibly had a fractured nose.

Here, the trial court did not determine who swung first; however, it did find that Moore and Williams were equally at fault. We agree. Whether only using his fists or with a glass object, it is undisputed that Moore hurt Williams. Williams did not deny initiating contact with a “bump.” Moore tries to argue that he was not the aggressor and therefore not liable for the damages resulting from the fistfight. We find this argument to be unpersuasive. Furthermore, Moore raises self-defense as an affirmative defense; however, this was not raised at the trial court. Despite the fact that Williams’ injuries were far greater than Moore’s injuries, suggesting that he used excessive force to repel the aggression, we need not inquire into the self-defense claim nor who was the initial aggressor. See Landry, supra. 16Clearly, as the trial court pointed out, if only different choices were made by both parties during the heat of the moment, the altercation could have been avoided. As such, we find that both parties were equally at fault.

The record provides that the past and future medicals totaled $30,901.31. The trial court did not err in its award for general damages which it ascertained was $40,000.00. The trial court accurately reduced the total amount to reflect the fault allocation. Considering the life changing physical and emotional injuries Williams suffered that occurred in the blink of an eye, we cannot find the trial court’s award to be manifestly erroneous.

CONCLUSION

After a review of the record, we affirm the trial court’s findings in its entirety. All costs are to be borne by the defendant, Michael J. Moore.

AFFIRMED.

      . The court assessed $30,901.31 for past and future medical expenses and $40,000.00 for general damages. This total was reduced by 50%.


author: CARAWAY, J.

text:
    Eric VON DRAKE, Plaintiff-Appellant v. Edgar Lynn ROGERS, Defendant-Appellee.
    No. 45,305-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 19, 2010.
    Rehearing Denied June 17, 2010.

      Cook, Yancey, King & Galloway, by W. Lake Hearne, for Appellant.
    Angela R. Rogers, for Appellee.
    Edgar Lynn Rogers, In Proper Person.
    Before BROWN, STEWART and CARAWAY, JJ.
   CARAWAY, J.

| ,This is an appeal from a judgment of the city court which dismissed the plaintiffs claim on the court’s sua sponte peremptory exception. The parties are co-owners of residential property and their multiple disputes have raised claims for an accounting over property-related obligations and for partition in both city court and the First Judicial District Court. The city court in this proceeding recognized that a prior final judgment in district court required dismissal of the action. Finding that such ruling is correct under our principles for res judicata, we affirm.

Facts and Procedural History

This is a longstanding dispute between two brothers over real estate in Shreveport. The property includes a family home which was previously owned by three brothers, Eric Von Drake (“Eric”), Edgar Rogers (“Edgar”) and Homer Rogers. Edgar acquired Homer’s interest and became a two-thirds interest co-owner in the property. Edgar, along with his wife and son, have resided in the home.

The instant controversy actually involves two related actions which were acknowledged by the city court judge in rendering the present judgment. This suit was filed by Eric on September 22, 2006, in Shreveport City Court, naming Edgar and his wife, Angela, as defendants. The petition alleged that Eric was refused occupancy of the co-owned property and was thus entitled to his share of the fair market rental value of the property. On November 15, 2007, after a trial on the merits, the city court rendered | judgment in favor of defendants, dismissing Eric’s claim. Eric took a devolutive appeal of the judgment to this court on December 21, 2007.

As these actions in the city court were occurring, however, on September 14, 2007, Edgar filed a second action in the First Judicial District Court in Shreveport, petitioning for a partition of the property (hereinafter the “District Court Action”). Much of the record of the District Court Action is now contained in this record.

A trial in the District Court Action was held on September 8, 2008, and the judgment, signed on September 17, 2008, first decreed full ownership of the property in Edgar. The judgment then states:

Inasmuch as defendant Eric Von Drake a/k/a David Wayne Rogers has failed to pay any portion of taxes in previous years, and to the extent the amount due plaintiff exceeds the original percentage of ownership of defendant Edgar Lynn Rogers but noting the “forgiveness” of any debt over and above the ownership value:
IT IS ORDERED, ADJUDGED AND DECREED that any further monetary amount requested by plaintiff Edgar Lynn Rogers against defendant Eric Von Drake a/k/a David Wayne Rogers is denied such that, from the date of this judgment, neither party owes the other any monetary amount (emphasis ours).

We additionally note the following oral reasons given by the trial judge at the partition hearing:

Based on the evidence presented that the Court will grant judgment in favor of Edgar Lynn Rogers plaintiff in this matter and against Eric Von Drake also known as David Wayne Rogers. I’m not going to consider the funeral expenses and medical bills and all that as an offset. However, I do — I will consider and factor into the damage that’s been described as well as all property taxes which I think more than sufficiently offsets the amount of $2,600, that value being one |sthird of $7,800. So Mr. Rogers’ testimony that he would forgive that debt, any remaining debt, I believe allows him to be deemed to be the 100 percent owner of the property at issue.

Although this unusual partition ruling in the District Court Action effectively vested full ownership in one co-owner without an actual public sale, the judgment itself was never effectively challenged by Eric. After delays for appeal had run, Eric’s motion for appeal from the District Court Action was dismissed with prejudice on May 18, 2009. The partition judgment of the District Court Action is now final. By October of 2008, Eric’s first appeal concerning the city court’s dismissal of his rental claims in this action was decided by this court. Von Drake v. Rogers, 43, 546 (La.App.2d Cir.10/8/08), 996 So.2d 608 (hereinafter “Von Drake I ”). This court’s opinion reflects no knowledge of the finality of the partition judgment of the District Court Action, which had been rendered in the preceding month. Our opinion in Von Drake I reversed the city court’s ruling and remanded the case back to city court for determination of Eric’s share of the fair rental value of the home from the date of judicial demand of this city court proceeding.

On remand, the city court took judicial notice of the district court’s final judgment of partition and thereby recognized that plaintiff, Eric, had no ownership interest in the property. The court thereafter supplied its own exception of no cause of action, stating that the law affords no action for a non-owner to claim fair rental value of the property. The court, “out of an |4abundance of caution,” held a hearing on September 10, 2009, which it limited to a determination of the fair rental value, as directed by this court in Von Drake I. After this hearing, the court signed a judgment on September 11, 2009, sustaining its own exception of no cause of action and further determining the fair rental value of the home during the pertinent time period to be $2,968.75.

Eric now appeals, asserting that the city court’s sua sponte exception of no cause of action was improper and further that the judgment was ambiguous in that it did not actually award the rental amount to Eric, nor specify that this amount was one-third of the total fair rental value.

Discussion

The city court’s consideration of the judgment in the District Court Action and its noticing on its own motion the peremptory effect of that prior judgment find support in La. C.C.P. art. 927(B) which provides, in pertinent part:

The nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.

Although the city court voiced the exception as a determination of no cause of action, we will review its ruling under the principles of res judicata since it concerns the legal effect of a prior judgment.

The law of res judicata in Louisiana is set forth in La. R.S. 13:4231 provides as follows:

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

Based on the language of the above statute, as enacted in 1990, the following five elements must be satisfied for a finding that a second action is precluded by res judicata: “(1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.” Chevron U.S.A. v. State, 07-2469 (La.9/8/08), 993 So.2d 187, citing, Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049; Jones v. Bethard, 39,575 (La.App.2d Cir.4/13/05), 900 So.2d 1081, writ denied, 05-1519 (La.12/16/05), 917 So.2d 1115.

For res judicata purposes, a “valid judgment” is one rendered by a court with jurisdiction over both the subject matter and the parties after proper notice was given. Wooley v. State Farm Fire and Cas. Ins. Co., 04-882 (La.1/19/05), 893 So.2d 746. Under La. C.C.P. art. 1841, a final judgment is one that determines the merits in whole or in part. A judgment |6that only determines preliminary matters in the course of an action is an interlocutory judgment.

The comments to La. R.S. 13:4231 describe the central inquiry under the statute as not whether the second action is based on the same cause or causes of action, but whether the second action asserts a cause of action which arises out of the transaction or occurrence which was the subject matter of the first action. See comment (a) to La. R.S. 13:4231; Bond v. Bond, 37,264 (La.App.2d Cir.6/25/03), 850 So.2d 1001, writ denied, 03-2602 (La.12/12/03), 860 So.2d 1156. The comments go on to explain:

For purposes of res judicata it would not matter whether the cause of action asserted in the second action was the same as that asserted in the first or different as long as it arose out of the transaction or occurrence that was the subject matter of the first action.

Partition suits are governed by Title VII, “Ownership in Indivisión,” of the Louisiana Civil Code and Title IX, “Partition Between Co-owners,” of the Louisiana Code of Civil Procedure. Like the titles of the codal provisions pertaining to partitions suggest, co-ownership is the basis of an action for partition. See also, Norah v. Crawford, 218 La. 433, 49 So.2d 751 (1950); Broussard v. Allen, 198 La. 475, 3 So.2d 742 (1941).

A settlement of accounts between co-owners is incidental to an action for partition. Succession of Porche, 187 La. 1069, 175 So. 670 (1937); cf La. C.C. arts. 798, 799 and 806. Such accounting between co-owners is also highlighted in La. C.C.P. art. 4626, which provides:

A judgment ordering the public sale of property to effect a partition under the provisions of this Chapter shall order, out of the proceeds of such sale:
|7(1) The reimbursement of a co-owner of the amount proven to be due him for the payment of taxes on the property, and the expenses of preservation thereof; and
(2) The payment to a co-owner of the amount proven to be due him by another co-owner who has received and retained the fruits and revenues of the property.

Although this procedural article concerns the context of absentee co-owners where a petition for licitation is mandated, the article recognizes and requires that an accounting for all taxes and “fruits and revenues” of the property shall be ordered in effectuating the partition.

Even before 1990, under Louisiana’s pri- or narrow interpretation of res judicata, the preclusion doctrine applied more broadly to actions for ownership of immovable property, predicated upon the necessity of protecting and insuring stability and security of title. Ryan v. Grandison Trust, 504 So.2d 844 (La.1987); Mitchell v. Bertolla, 340 So.2d 287 (La.1976); Brown Land & Royalty Co. v. Pickett, 226 La. 88, 75 So.2d 18 (1954). Thus, the Louisiana Supreme Court in Ward v. Pennington, 523 So.2d 1286 (La.1988), recognized that when a claim to ownership is rejected in a first action and that judgment acquires the authority of the thing adjudged, a second action cannot thereafter be brought for the ancillary right to an accounting for the revenues attributable to that adjudged ownership. Accordingly, it was held that “an accounting for the revenues attributable to that ownership is barred by res judicata.” Id.

Following the 1990 revision of our res judicata law, a broad interpretation has been afforded the phrase “transaction or occurrence” so as to encompass the parties’ disputes involving rights to property. In Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993, a first | Raction was brought by landowners, challenging the validity of a city ordinance, in an attempt to redeem their property after it was seized by the city for nonpayment of taxes. The landowners, who were unsuccessful in the first suit, filed a second action against the city for pecuniary damages for the alleged wrongful refusal of the city to allow the property’s redemption. Despite the fact that the landowners sought ownership in the first suit and demanded money damages in the second, the court found that “because the subject matter of both lawsuits fundamentally concerns the parties’ right to the property, the final judgment in the first action pre-eluded any future claims by the [landowners] to the property.” Id.

This proceeding and the District Court Action were pending between these parties simultaneously in two courts. To the extent that these suits involved the “same transaction or occurrence,” the first final judgment rendered would be conclusive. La. C.C.P. art. 531. In this case, the first judgment rendered from these two actions was the September 17, 2008 partition judgment from the District Court Action. At that time, Eric’s first appeal in the present action was pending and the status of the appeal concerned the initial city court judgment dismissing his rental claim. Even with our later ruling in Von Drake I, the case was remanded to city court with no final judgment having been rendered.

With the September 2008 partition judgment being the first valid and final judgment rendered between these parties, the question presented under our res judicata law is whether the causes of action asserted in both actions concerned the same transaction or occurrence.

|9The District Court Action concerned the co-ownership relationship between the parties. Edgar sought two remedies in the action. The first was to end the parties’ co-ownership by partition. The second involved certain accounting claims by Edgar against his co-owner, Eric, including the taxes previously paid by Edgar. Erie was not without recourse in the District Court Action regarding his own accounting claims which, under La. C.C.P. art. 1061, could be made as a reconventional demand and were required as a compulsory counterclaim to the extent that the rent claim arose out of the “same transaction or occurrence” that was the subject matter of Edgar’s action. The judgment in the District Court Action which ended the co-ownership relationship also expressly recognized that “from the date of this judgment, neither party owes the other any monetary amount.”

Co-ownership was also the basis of Eric’s claim for fair rental value. In his original city court petition, Eric purports to establish entitlement to rent through his status as a co-owner of the property:

Plaintiff is the owner of an undivided 1/3 interest in the property located at 927 Madison Avenue, Shreveport, Caddo Parish, Louisiana, and defendant is the owner of the remaining undivided 2/3 interest in said property.
⅝ ⅜ ⅝ ⅝ ⅜ ⅝
Defendant has refused to allow plaintiff to occupy or use the co-owned property ... (emphasis ours).

As determined in Von Drake I, Eric’s rental claim was allowable under La. C.C. art. 802, which prohibits a co-owner from preventing another co-owner from using the property held in indivisión.

In both actions, the “transaction or occurrence” upon which the parties’ claims rest is their co-ownership relationship. That relationship | mgave rise by operation of law to the monetary obligations each sought to enforce against the other. Then-causes of action arose from this legal regime, which falls within the broad meaning of “transaction or occurrence.” Accordingly, we find that the same transaction or occurrence was involved in both actions. Therefore, the first judgment obtained in the District Court Action adjudicated the matter, and res judicata under our law applies.

Conclusion

The city court’s dismissal of this action on peremptory grounds is affirmed for the reasons set forth above. Costs of appeal are assessed to appellant.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, CARAWAY and DREW, JJ.

Rehearing denied.

      . It was shown at the hearing that Eric damaged the front door screen and cut a hole in the outside wall to a rear room in the house. Demolition of the rear room was required at a cost of approximately $1,700. Additionally, Edgar paid Eric's portion, or $626.45, for taxes owing on the home.

      . The following is provided for in the trial court’s reasons for final judgment: “This subject property has a municipal address of 927 Madison Avenue, Shreveport Louisiana and has an appraised value of about $7,800. (See exhibit of November 15, 2007, signed by appraiser Richard Smith).’’