Michael Boudreaux v. Take 5, LLC

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT P.O. Box 16577

Lake Charles LA 70616

(337) 433-9403

Christopher Richard Philipp Attorney at Law P. O. Box 2369 Lafayette LA 70502 Judgment on rehearing rendered and mailed to all parties or counsel of record on December 14, 2022

REHEARING ACTION: December 14, 2022

Docket Number: 22 00042-WCA

MICHAEL BOUDREAUX VERSUS TAKE 5, LLC

Appealed from Office of Workers' Compensation - # 4 Case No. 20-04639

BEFORE JUDGES:

Hon. Elizabeth A. Pickett Hon. Van H. Kyzar Hon. Candyce G. Perret

As counsel of record in the captioned case, you are hereby notified that the application for rehearing filed by Michael Boudreaux has this day been GRANTED. (See majority opinion on rehearing also rendered this date.)

cc: Erica M. Ducoing, Counsel for the Appellant

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-42

MICHAEL BOUDREAUX VERSUS TAKE 5, LLC

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APPEAL FROM THE

OFFICE OF WORKERS’ COMPENSATION – # 4 PARISH OF LAFAYETTE, NO. 20-04639 PAULA MURPHY, WORKERS’ COMPENSATION JUDGE

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ELIZABETH A. PICKETT

JUDGE

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ON REHEARING

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Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.

REHEARING GRANTED.

Christopher R. Philipp Attorney at Law P. O. Box 2369 Lafayette, LA 70502 (337) 235-9478 COUNSEL FOR PLAINTIFF-APPELLEE Michael Boudreaux

Erica M. Ducoing Thomas, Soileau, Jackson & Cole, L.L.P. 330 Marshall Street, Suite 300 Shreveport, LA 71101 (318) 216-5058 COUNSEL FOR DEFENDANTS-APPELLANTS Take 5, LLC Liberty Mutual Insurance Company

PICKETT, J.

We granted rehearing in this case to reconsider our denial of Mr.

Boudreaux’s request for attorney fees. We denied his request because the record did not include an answer requesting attorney fees. Mr. Boudreaux asserted in his motion for rehearing that he had filed an answer with the Office of Workers’ Compensation, not with this court. The Office of Workers’ Compensation prepared a supplement to the record which includes Mr. Boudreaux’s answer wherein he requested an award of additional attorney fees for work performed on appeal. The defendants filed their motion for suspensive appeal on September 17, 2021, and the return date was November 15, 2021. Mr. Boudreaux filed his answer on November 14, 2021.

Louisiana Code Civil Procedure art. 2133(A) provides, in pertinent part:

An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.

In Succession of Poole, 15-1317 (La.App. 1 Cir. 10/28/16), 213 So.3d 18, the court noted that La.Code Civ.P. art. 2133 does not designate in which court the answer to an appeal must be filed and the only requirement stated in Article 2133(A) is that the answer be filed “not later than fifteen days after the return day or lodging of the record whichever is later.” Mr. Boudreaux filed his answer before the return date; therefore, it was timely filed. Accordingly, it is properly before this court. See also Med. Rev. Panel for Bush, 20-468 (La.App. 4 Cir. 6/2/21), __ So.3d __, aff’d in part; rev’d in part on other grounds, 21-954 (La. 5/13/22), 339 So.3d 1118.

The workers’ compensation judge awarded Mr. Boudreaux penalties and attorney fees which we affirmed. Having considered Mr. Boudreaux’s motion, we award him $5,000 for attorney fees incurred with this appeal.

DISPOSITION

The motion for rehearing filed by Michael Boudreaux is granted. Our original opinion is amended to award Michael Boudreaux $5,000 for attorney fees incurred with this appeal.

REHEARING GRANTED.