author: liAMY, Judge.

text:
    TOWN OF NEW LLANO, LA v. Connie HUNT, et al.
    No. 02-1385.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Daniel Elmo Broussard, Jr., Broussard, Bolton, Halcomb & Vizzier, Alexandria, LA, for Defendani/Appellant, Connie Hunt.
    Jack L. Simms, Jr., Leesville, LA, for Plaintiff/Appellee, Town of New Llano, LA.
    Cynthia Thomas Batiste, Louisiana Department of Labor, Office of Regulatory Services, Baton Rouge, LA, for Defendant, State of Louisiana, Department of Labor.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   liAMY, Judge.

The plaintiff filed a petition in the district court seeking review of a decision of the Louisiana Board of Review. The defendant filed an exception, alleging that the matter was untimely, as the petition was filed after the expiration of the per-emptive delay period. An exception of vagueness or ambiguity was also filed due to allegations of fraud in obtaining the initial decision of the Administrative Law Judge. The trial court found the matter to be untimely, but dismissed the exception relating to untimeliness and remanded the matter to the Board of Review for consideration of the fraud allegations. The exception of vagueness or ambiguity was also referred to the Board for its consideration. The defendant appeals. For the following reasons, we reverse.

Factual and Procedural Background

The defendant, Connie Hunt, ceased employment with the plaintiff, the Town of New Llano on March 26, 2001. Her application for unemployment benefits was denied. She subsequently appealed that decision to the Appeals Tribunal for the Office of Regulatory Services. An Administrative Law Judge found Ms. Hunt entitled to employment benefits, rendering a decision on May 2, 2001. The Town of New Llano appealed the decision of the Administrative Law Judge with the Board of Review. The Board of Review affirmed the decision finding Ms. Hunt entitled to employment benefits. One member of the Board of Review panel dissented. The decision of the Board of Review was mailed on June 28, 2001.

The Town of Llano alleges that, when the Board of Review’s decision was received, the Department of Labor was contacted for clarification. It contends that an employee of the Board informed it that “the claim had been denied and that the claimant would not receive benefits, but in August, 2001, the Town received a bill for | ¡.benefits charges for benefits paid to claimant.” The Town contends that it was then informed that the decision had been in favor of Ms. Hunt.

The Town filed a petition instituting the present matter on September 7, 2001. It sought review of the Board of Review’s decision of June 28, 2001. The petition alleged that the decision before the Administrative Law Judge, which was affirmed by the Board of Review, was erroneous and “obtained through fraudulent conduct, deceit, misrepresentation and ill practices.... ” Ms. Hunt and the Administrator for the Louisiana Department of Labor, Board of Review, were named as defendants. The Town asked that the decision of the Board of Review be reversed and set aside.

Ms. Hunt filed a peremptory exception, alleging that the petition was untimely. She asserted that the delay for filing for review of the Board of Review’s decision is controlled by La.R.S. 23:1629 and La.R.S. 23:1634 and that the delay is fifteen days from date of mailing of the Board of Review’s decision. In this case, the petition was not filed until September 7, 2001, well after the expiration of the delay. Ms. Hunt also filed an exception of vagueness and ambiguity, asserting that the allegations of fraud were not supported by an adequate factual basis in the petition, as is required by La.Code Civ.P. art. 856. The Department of Labor joined in Ms. Hunt’s exceptions.

At the hearing on the exceptions, the Town of New Llano asserted that although the fifteen-day review delay associated with the Board of Review’s decision had expired, an employee of the Department of Labor had mischaracterized the nature of the Board of Review’s decision upon initial inquiry. Furthermore, the Town 13contends that due to the allegation of fraud, the question is whether the decision of the Board of Review is an absolute nullity which can be rectified at any time.

The trial court rendered written reasons for ruling, observing that the petition was not timely filed under La.R.S. 23:1349. However, the trial court dismissed the exception asserting untimeliness, due to the allegation of fraudulent conduct. The trial court remanded the matter to the Board of Review for consideration of the allegations of fraud. It also referred the exceptions of vagueness or ambiguity to the Board for consideration.

Ms. Hunt appeals, assigning the following as error:

1. The trial court erred in dismissing the Peremptory Exception of defendant Connie Hunt.
2. The trial court erred in failing to dismiss the petition of plaintiff on the grounds that plaintiffs Petition for Review was not filed timely.
3. The trial court erred in denying the Dilatory Exception of Vagueness or Ambiguity of defendant Connie Hunt.
|44. The trial court erred in ordering this matter remanded to the Board of Review pursuant to the provisions of LSA-R.S. 49:959.
5. The trial court erred in applying the provisions of the Louisiana Administrative Procedure Act, LSA-R.S. 49:959 to this case.

Discussion

Timeliness

Ms. Hunt first questions the dismissal of the exception she filed asserting that the petition filed in the district court was untimely. She contends that the delay periods associated with judicial review of a decision of the Board of Review are per-emptive rather than prescriptive. She asserts that, due to the absolute nature of a peremptive period, the trial court was without jurisdiction to order a remand for consideration of the fraud allegations. We agree.

La.R.S. 23:1634 provides for judicial review of a board of review determination as follows:

A. Within the time specified in R.S. 23:1630, the administrator, or any party to the proceedings before the board of review, may obtain judicial review thereof by filing in the district court of the domicile of the claimant a petition for review of the decision, and in such proceeding any other party to the proceeding before the board of review shall be made a party defendant. The petition for review need not be verified but shall state the grounds upon which such review is sought. The administrator shall be deemed to be a party to any such proceeding. If the administrator is a party defendant, a certified copy of the petition shall be served upon him by leaving with him, or such representative as he may have designated for that purpose, as many copies of the petition as there are defendants. With his answer or petition, the administrator shall certify and file with the court, within sixty days of service of process, a certified copy of the record of the case, including all documents and papers and a transcript of all testimony taken in the matter, together with the board of review’s findings, conclusions, and decision. If the administrator fails to file the record with the court within the time provided herein, the court, upon hearing sufficient evidence, may issue a judgment directing payment of benefits to the claimant.
|SB. Upon the filing of a petition for review by the administrator or upon the service of the petition on him, the administrator shall forthwith send by registered mail to each other party to the proceeding a copy of the petition, and such mailing shall be deemed to be completed service upon all parties. In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law. No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board of review, and the board of review may, after hearing such additional evidence, modify its findings of fact or conclusions, and file with the court such additional or modified findings and conclusions, together with a transcript of the additional record. Such proceedings shall be heard in a summary manner and shall be given preference and priority over all other civil cases except cases arising under the workers’ compensation law of this state. An appeal may be taken from the decision of the district court to the circuit court of appeal in the same manner, but not inconsistent with the provisions of this Chapter, as is provided in civil cases. It shall not be necessary as a condition precedent to judicial review of any decision of the board of review to enter exceptions to the rulings of the board of review, and no bond shall be required as a condition of initiating a proceeding for a judicial review, or entering an appeal from the decision of the court upon such review. Upon the final termination of a judicial proceeding, the board of review shall enter an order in accordance with the mandate of the court.

Examination of La.R.S. 23:1630, referenced in La.R.S. 23:1634(A), reveals the fifteen-day delay period now at issue. The statute provides, in part:

§ 1630. Review of decision by board of review; notice of board’s decision
A. The board of review may on its own motion, within fifteen days after the date of notification or of mailing of a decision of an appeal referee, initiate a review of such decision. The board of review may otherwise allow an appeal from such decision to be filed, within fifteen days after the date of notification or of mailing of a decision of an appeal referee, by any party entitled to notice of such decision, if such appeal is either mailed, as evidenced by the postmarked date, or is delivered by any such party. An appeal filed by any such party shall be alloived as of right if such decision was not unanimous, or if the determination was not affirmed by the appeal referee. Upon review on its own motion or upon appeal, the board of review may, on the basis of the evidence previously submitted in such case, or upon the basis of such additional evidence as it may direct be taken, affirm, modify, or reverse the findings and conclusions of the appeal referee. The board of [ ¿review may remove to itself or transfer to another appeal referee the proceedings on any claims pending before or an appeal referee. Any proceedings so removed to the board of review prior to the completion of a fair hearing shall be heard by the board of review in accordance with the requirements of this Chapter with respect to proceedings before an appeal referee.
B. The board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date an appeal is received or initiated by the board. Should the board of review, within sixty days from the date an appeal is received or initiated, direct that additional evidence be taken, the board of review shall make a determination and notify all parties of its decision, including its findings and conclusions in support thereof, within sixty days from the date it receives the additional evidence. Such decision shall be final unless, ivithin fifteen days after the mailing of notice thereof to the party’s last known address, or, in the absence of such mailing, within fifteen days after the delivery of such notice, a proceeding for judicial review is initiated pursuant to R.S. 23:163b. Upon denial by the board of review of an application for appeal from the decision of an appeal referee, the decision of the appeal referee shall be deemed to be a decision of the board of review within the meaning of this Section for purposes of judicial review and shall be subject to judicial review within the time and in the manner provided for with respect to decision of the board of review, except that the time for initiating such review shall run from the date of notice of the order of the board of review denying the application for appeal.

(Emphasis added.)

La.Civ.Code art. 3458 indicates that “[pjeremption is a period of time fixed by law for the existence of a right.” Further, “[u]nless timely exercised, the right is extinguished upon the expiration of the per-emptive period.” Id. Peremption may be pleaded or supplied by the court’s own motion. La.Civ.Code art. 3460.

The courts of this state have recognized the fifteen-day period provided by La.R.S. 23:1630 as a peremptive period. Hughes v. Louisiana Power & Light, Co., 98-1007 (La.App. 5 Cir. 3/10/99); 735 So.2d 44; Wallace v. State Dept. of Labor, 95-414 (La.App. 5 Cir. 11/15/95); 665 So.2d 474; Bullock v. Administrator, Dept. of Employment Sec., 628 So.2d 190 (La.App. 2 Cir.1993); Martin v. State Office of Employment Sec., 554 So.2d 85 (La.App. 3 Cir.1989), writ denied, 556 So.2d 43 (La.1990); Jones v. Blache, 480 So.2d 894 (La.App. 2 Cir.1985). The expiration of the period “destroys the claim so completely that any right of action ceases to exist and is lost.” Bullock, 628 So.2d at 191.

The above cases focus on the fifteen-day period of La.R.S. 23:1630(A), the delay for a review by the Board of Review. The instant matter involves the fifteen-day period of La.R.S. 23:1630(B), that related to judicial review of the decision of the Board of Review. However, we find no differentiation between the two periods. Furthermore, the Town’s contention that it was misinformed of the Board of Review’s decision which it argues prevents the running of the fifteen-day period is an allegation of contra non valentem. This doctrine is inapplicable to a peremptive period. See Hughes, 98-1007; 735 So.2d 44.

Due to the expiration of the fifteen-day period prior to the Town’s filing of the petition with the district court, the action was untimely. As stated above, the expiration of the period extinguished the claim in full. The Town contends that because it has alleged fraud in the obtaining of the underlying decision, the matter should be considered a nullity. We disagree that this coupling of concepts permitted the trial court to consider whether the matter should be remanded to the Board of Review for consideration of the Town’s claims. Rather, after the peremptive period was found to have expired, the trial court’s consideration of the matter should have necessarily ceased. While we do not consider whether the Town may have a separate cause of action related to its general allegation of fraud, any such allegation is inappropriate on this petition. The bare allegation of fraud sounds in an assertion of contra non valentem. Accordingly, we conclude that the trial court erred in failing | sto grant the exception as it related to untimeliness and in remanding the exceptions of vagueness and ambiguity to the Board of Review. Due to our finding that the peremptory exception of untimeliness disposed of the matter, we do not consider the remainder of Ms. Hunt’s assignments.

DECREE

For the foregoing reasons, the decision of the trial court dismissing the peremptory exception of untimeliness and remanding this matter to the Board of Review is reversed. The exception is maintained and the petition dismissed. All costs of this proceeding are assigned to the Town of New Llano in the amount of $777.24.

REVERSED; PEREMPTORY EXCEPTION MAINTAINED AND RENDERED.

      . Article 856 provides:
      In pleading fraud or mistake, the circumstances constituting fraud or mistake shall be alleged with particularity. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally.

      . The trial court’s reasons for ruling provide, in part:
      It is apparent that the petition for review was not timely filed. Were this simply a request for review of the Board’s decision under R.S. 23:1629 et seq. this would resolve this matter.
      However, in its petition, the Town has alleged that the claimant, Connie Hunt, obtained benefits through "fraudulent conduct, deceit, misrepresentations, and ill practices.” In R.S. 23:1634(B) the statute provides the findings of the Board are conclusive, "in the absence of fraud.” That establishes an exception to the weight to be given the Board's decision.
      Furthermore, R.S. 49:959, commonly referred to as the Administrative Procedures Act, provides in Subsection B that an agency, at any time, may rehear, reopen or reconsider a matter on the ground of fraud practiced by the prevailing party.
      Since the Town has alleged that the claimant, Connie Hunt, has obtained benefits in a fraudulent manner, R.S. 49:959 appears to allow the agency, and, specifically the Board, to reconsider at any time its decision if fraud is committed.
      The court hereby orders that this matter be remanded to the Board of Review for further proceedings to consider the allegations of fraud raised by the Town of New Llano consistent with the provision of R.S. 49:959 and other statutory provisions.
      Since the court is ordering a remand, the other exception of vagueness will be referred to the Board for further consideration and action.


source: Caselaw Access Project

author: B SULLIVAN, Judge.

license: Public Domain

text:
    Golda ARDOIN v. KIPLING KORNER GROCERY.
    No. 02-1372.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.
    Scott J. Pias, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant: Golda Ardoin.
    Frank E. Brown, III, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defen-danVAppellee: Kipling Korner Grocery.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   B SULLIVAN, Judge.

Golda Ardoin appeals the amount of attorney fees awarded for trial of her workers’ compensation claim. For the following reasons, we affirm.

Procedural History

This matter has previously been before us. In Ardoin v. Kipling Korner Grocery, 01-1596 (La.App. 3 Cir. 4/17/02); 824 So.2d 371, we found that the workers’ compensation judge (WCJ) erred in denying Mrs. Ardoin’s claim for penalties and attorney fees for her employer’s refusal to pay benefits. In that opinion, we awarded Mrs. Ardoin $2,000.00 in penalties and $3,500.00 in attorney fees for work performed on appeal, but we remanded the matter for additional evidence as to an appropriate amount of attorney fees for trial work. After a hearing on remand, the WCJ awarded Mrs. Ardoin $2,800.00 in attorney fees for trial of the matter. On appeal, she contends that this award is inadequate.

Discussion

In her appellate brief, Mrs. Ar-doin suggests that our review of the amount of attorney fees awarded is a legal issue that is not governed by the manifest error standard. We disagree. As the supreme court explained in McCarroll v. Airport Shuttle, Inc., 00-1123, p. 9 (La.11/28/00); 773 So.2d 694, 700: “The amount [of statutory attorney fees] awarded rests within the discretion of the workers’ compensation judge, as long as that amount is supported by the record.” Well before McCarroll, however, this court held that the trier of fact has great discretion in awarding attorney fees and that such an award “will not be disturbed absent manifest error.” Poirrier v. Otis Eng’g Corp., 602 So.2d 207, 212 (La.App. 3 Cir.1992). In Smith v. Quarles Drilling Co., 01-251 (La.App. 3 Cir. 10/3/01); 801 So.2d 1128, writs denied, 02-80 (La.3/28/02); 811 So.2d 943, and 02-123 (La.3/28/02); 811 So.2d 945, we recognized that an award of attorney fees may be increased or decreased on appeal only to the lowest or highest amount supported by the record. See also Burns v. St. Frances Cabrini Hosp., 02-518 (La.App. 3 Cir. 10/30/02); 830 So.2d 572; Frank v. Kent Guidry Farms, 01-727 (La.App. 3 Cir. 5/8/02); 816 So.2d 969; Monceaux v. Tosco Mktg. Co., 01-1019 (La.App. 3 Cir. 12/12/01); 801 So.2d 614, writ denied, 02-104 (La.3/28/02); 811 So.2d 944 (all finding no abuse of discretion in the amount of attorney fees awarded).

In McCarroll, 773 So.2d at 697-98 (footnotes omitted), the supreme court explained the difference between an attorney’s contingency fee in a workers’ compensation case and attorney fees imposed under La.R.S. 23:1201(F) as follows:

The first type is the contractual contingency fee. This fee is not a statutory fee — it is not authorized by statute (it is authorized by contract between the employee and the attorney), but it is limited by statute (La.Rev.Stat. 23:1141 ...). Moreover, the contractual fee is not assessed against the employer or the employer’s insurer, but is contractually payable by the employee to the attorney out of the employee’s recovery of benefits that is attributable to the litigation handled by the attorney. Finally, the contractual fee, as a contingency fee, is payable in every case of successful litigation over unpaid benefits, irrespective of the employer’s or insurer’s failure to reasonably controvert the claim that benefits are due to the employee.
On the other hand, attorney fees (as well as penalties) awarded for failing to reasonably controvert the claim are statutory fees assessed against the employer or the insurer (or both). Finally, statutory fees are not payable in every case of successful litigation, but rather are payable only where the employer or insurer fails to pay benefits timely and fails, at trial, to show a reasonable controversy over the claim (or to show that nonpayment is the result of conditions over which the employer or insurer had no control).

In discussing the calculation of the statutory fee, the supreme court further explained:

The only limitation on the amount is the reasonableness of the fee awarded by the judge.... Some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability ^exercised by the attorney, the amount of the claim, the amount recovered for the employee, and the amount of time the attorney devoted to the case. The amount awarded is intended to provide full recovery, without statutory limitation, for attorney’s services and expenses in connection with the litigation.

Id. at 700 (citations omitted) (footnote omitted) (emphasis added).

Although McCarroll concerned the distribution of a statutory attorney fee between the employee and his attorney, it has been cited where the amount of the attorney fee is at issue. See Desselle v. Oaks Care Ctr., 01-44 (La.App. 3 Cir. 4/24/02); 824 So.2d 394. In addition to the factors listed in McCarroll, appellate courts have considered Rule 1.5 of the Rules of Professional Conduct in reviewing the reasonableness of attorney fees in workers’ compensation cases. Some of those factors include the novelty and difficulty of the questions involved; the fee customarily charged in the locality for similar legal services; the length of the professional relationship with the client; and the experience, reputation, and ability of the attorney.

Citing the italicized language from McCarroll, as well as her attorney’s uncontested affidavit that he spent twenty-six hours of trial work at an hourly rate of $175.00, Mrs. Ardoin argues that the WCJ erred as a matter of law in awarding “an amount less than $4,550.00 which is the only amount that could be supported based upon the evidence in the record.” In urging an affirmation, her employer responds that the award of $2,800.00 in attorney fees is actually $200.00 too high, in light of our award in Smith, 801 So.2d 1128, of fees at $100.00 per hour, even though that attorney had requested $125.00 per hour for trial work and $185.00 per hour for appellate work.

|4Both Plaintiff and Defendant would have us mechanically apply only two of the factors listed above: the customary rate for similar legal matters and the amount of time expended on the claim. In addition to ignoring the other factors of McCarroll and the Professional Rules, their approach disregards the discretion afforded the WCJ in awarding attorney fees. Further, it is not our function to declare what is an appropriate hourly rate in workers’ compensation cases. Rather, our role is to determine whether the WCJ abused her discretion in setting a reasonable fee.

Mrs. Ardoin’s attorney’s skill and diligence is evident from the record, in that he obtained awards for past and future indemnity benefits, medical expenses, penalties, and attorney fees. However, the trial essentially dealt with only one issue: whether or not Mrs. Ardoin was in the course and scope of her employment when she was injured. Her continued disability was not seriously contested, and her employer admitted at the close of evidence that Mrs. Ardoin had not been released to return to work. The exhibits Mrs. Ardoin introduced consisted mainly of one letter demanding treatment, medical records and bills, and two fact witnesses’ statements that were taken by her employer’s insurance company; no depositions were introduced. Although we consider an award of $2,800.00 in attorney fees to be low in any case that is fully tried, we do not find an abuse of discretion on the record before us.

In reaching this conclusion, we have also considered that Mrs. Ardoin received a generous award of $3,500.00 for work performed on her first appeal. We have |Bpreviously found that an award for trial work may also adequately compensate for work spent successfully defending an appeal. See Harbor v. St. Frances Cabrini Hosp., 01-1551 (La.App. 3 Cir. 5/15/02); 817 So.2d 1269, writ denied, 02-1684 (La.10/4/02); 826 So.2d 1125. Finding that the reverse is, in part, present here, we decline to disturb a total attorney fee award of $6,300.00 in this case.

Decree

For the above reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Plaintiff Appellant, Golda Ardoin.

AFFIRMED.

      . Concerning these factors, the second circuit has stated: "There is no requirement that the trial court hear evidence concerning the time spent or the hourly rates charged to make an award of attorney fees since the record will reflect much of the services rendered." Tatum v. St. Patrick's Psychiatric Hosp., 34,957, p. 4 (La.App. 2 Cir. 8/22/01); 794 So.2d 958, 961 (emphasis added).

      . Although we awarded attorney fees based upon a rate of $100.00 an hour in Smith, 801 So.2d 1128, we were constrained by the standard of raising the award only to the lowest reasonable fee supported by the record.


author: J^PETERS, J.

text:
    UNION OIL COMPANY OF CALIFORNIA v. CHEYENNE OIL PROPERTIES, INC.
    No. 02-1330.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Susie Morgan, M. Allyn Stroud, Wiener, Weiss & Madison, Shreveport, LA, for De-fendani/Appellant, IP Petroleum Co., Inc.
    R. Thomas Jorden, Jr., Ted M. Anthony, Perret, Doise, A P.L.C., Lafayette, LA, for PlaintifPAppellee, Union Oil Company of California.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   J^PETERS, J.

This litigation began as a suit by Union Oil Company of California (Unocal) against Cheyenne Oil Properties, Inc. (Cheyenne Oil) to recover from Cheyenne Oil its share of expenses for work performed on the lease arising from its working interest ownership in an offshore oil and gas lease. Unocal later named IP Petroleum Company (IP) as a party defendant, seeking to recover the same expenses from it. The matter is before us on IP’s appeal of a summary judgment rendered by the trial court in Unocal’s favor and against IP, awarding Unocal the sum of $228,400.32 together with interest and attorney fees as damages. For the following reasons, we reverse the trial court’s grant of the summary judgment and remand this matter for further proceedings.

DISCUSSION OF THE RECORD

At the center of this litigation is a March 1979 offshore oil and gas lease covering Block 44 of the Eugene Island area in the Gulf of Mexico (the lease) which was operated under the terms of a 1988 Joint Operating Agreement. At the time of the execution of the Joint Operating Agreement, General Atlantic Resources, Inc. (General Atlantic) was the operator of the lease, and IP was one of the working interest owners and a party to the Joint Operating Agreement.

By early 1996, production on the lease had decreased to the point that UMC Petroleum Company (UMC), which had replaced General Atlantic as the lease operator, was recommending that plugging and abandonment activities begin. UMC circulated a letter dated February 13, 1996, advising the working interest owners of the cost of the plugging and abandonment work and seeking permission to proceed. Unocal, as a working interest owner, disagreed with this recommendation and | ¡formulated a plan to conduct downhole operations on an existing shut-in well on the lease in an effort to restore production and maintain the lease. Unocal proposed this alternative to the working interest owners of record by correspondence circulated on the same day as UMC’s letter. Both UMC’s letter and Unocal’s letter were sent to IP as a working interest owner of record.

By the time the February 13 letters were circulated, IP had already participated in an auction wherein it purportedly transferred in December 1995 its 4.86473% working interest to Cheyenne Oil. The auction was facilitated by the Oil & Gas Asset Clearinghouse (Clearinghouse). Among the executed documents that the Clearinghouse required was a Qualified Bidder Registration form which was signed on December 13, 1995 by J.R. Sorrels, owner and president of Cheyenne Oil. In doing so, Mr. Sorrels asserted that Cheyenne Oil was qualified to participate in the transaction. Another document, titled “Buyer’s Terms and Conditions of Purchase,” also signed by Mr. Sorrels, contains the following language:

5. COMPLIANCE WITH AGREEMENTS AND REGULATIONS: Buyer must comply with and shall be bound by any and all leases, operating agreements, farmout agreements and other contracts, as well as all governmental laws and regulations to which the properties may be subject. In addition, pri- or to bidding on any property which may include the right to operate or involves governmental leases, Bidder must be qualified to assume such rights or hold such leases in accordance with applicable agreements and regulations. Buyer’s failure to comply with all applicable agreements, jurisdictional agency requirements, government regulations and, if applicable, qualify thereunder to the satisfaction of Seller and The Clearinghouse shall result in Seller and The Clearinghouse having the right to nullify the sale. Should Buyer fail or refuse to ■ meet these terms, or the terms of any agreements or regulations, Buyer agrees to forfeit the purchase price as liquidated damages and to re-assign and return the property to Seller free and clear of any encumbrances which were not in existence prior to Seller’s conveyance of the property to Buyer.

Based on this purported sale of its interest, IP forwarded Unocal’s February 13 [¡¡correspondence to Cheyenne Oil on February 14, 1995.

Unocal became aware of IP’s purported transfer of interest almost immediately after its February 13 letter. On February 20, 1996, Unocal circulated another letter to the working interest owners. This time, instead of sending it to IP, Unocal sent the letter to Cheyenne Oil. Unocal’s February 20 letter reiterated the contents of its February 13 letter and sought the working interest owners’ support for replacing UMC as operator. The letter provided a format for each working interest owner to vote in writing on the proposals. On February 22, 1996, Cheyenne Oil used the provided format to submit its vote in favor of Unocal’s proposals. Additionally, Cheyenne Oil sent a facsimile message to UMC, informing UMC that it “elects not to aban-done [sic] the Eugene Island Block 44 OCS-G3990 #4/4D well and proposes further operations to restore this lease back to production.” By correspondence dated February 23, 1996, UMC informed the working interest owners of its resignation as operator of the lease and its support of Unocal as the successor operator.

Unocal began functioning as operator of the lease and, by correspondence dated March 4, 1996, requested that the working interest owners approve its proposed plan for the repair and restoration of production of the lease. A number of the working interest owners choose not to consent to bear their share of the cost of the proposed operations, and, pursuant to the terms of the Joint Operating Agreement, the remaining working interest owners were given the opportunity to increase their working interest ownership proportionally. By a letter dated March 6, 1996, Unocal informed Cheyenne Oil and three other working interest owners of that opportunity. Specifically, Cheyenne Oil was given the opportunity to increase its share of the working interest under the lease to 44.52214%. The letter requested that each ^working interest owner “respond by fax within twenty-four (24) hours from receipt of this letter as to whether or not you will elect to assume your proportionate share of the non-consent interest,” and provided a form for each working interest owner to indicate the decision. The form, which was located at the end of the letter, stated:

[Name of the working interest owner]
Elects to acquire their proportionate interest as set forth above:_Yes_No
By:_Date:_

Cheyenne Oil returned the form on March 8, 1996, indicating that it did elect to increase its working interest ownership to 44.52214%.

Thereafter, because one of the remaining working interest owners chose not to acquire its proportionate share of the nonparticipating working interest, Cheyenne Oil was given an opportunity, by correspondence from Unocal dated March 19, 1996, to increase its share of the working interest ownership to 52.25544%. The letter contained the same type of decision form as was used in the March 4 correspondence. By use of the form, Cheyenne Oil informed Unocal on March 22, 1996, that it did not chose to further increase its working interest ownership.

Next in the chronology of events affecting the lease was the apparent unraveling of the transfer of interest from IP to Cheyenne Oil. Mr. Sorrels testified by deposition that, approximately three to four months after purchasing IP’s interest through the Clearinghouse, his company was notified by the Clearinghouse that there were problems with the purchase. According to Mr. Sorrels, he was informed that, because Cheyenne Oil had not been pre-approved to participate as a working interest owner in a lease on the Outer Continental Shelf, the transfer from IP had been rejected and that he should return all paperwork to IP. Apparently, anyone seeking | Kto acquire ownership in leases on the Outer Continental Shelf must be approved by the United States Mineral Management Service, and Cheyenne Oil had not been approved. By this time, according to Mr. Sorrels, Cheyenne Oil had already elected to participate in the workover activities and to increase its ownership interest in the lease. When Mr. Sorrels informed the Clearinghouse representative of the elections alreády made in pursuit of maintaining the lease, the representative stated that he “would get back with [Mr. Sorrels].” According to Mr. Sorrels, the representative never called again.

Unocal’s attempt to regain production on the lease proved unsuccessful, and, during October and November of 1997, Unocal plugged and abandoned the remaining wells on the lease. When Cheyenne Oil failed to pay its pro rata share of the expenses associated with the workover and plugging and abandonment activities, Unocal instituted suit, naming only Cheyenne Oil as a defendant. Unocal’s November 21, 2000 petition alleged that Cheyenne Oil had breached its contractual obligations under the Joint Operating Agreement and, as an alternative theory of recovery, that Cheyenne Oil had been unjustly enriched by Unocal’s actions in functioning as operator of the lease. Unocal further alleged that, as a result, Cheyenne Oil owed $228,400.32, plus interest, costs, and attorney fees for workover and plugging and abandonment expenses.

In its answer to the petition, Cheyenne Oil admitted that it had agreed to participate in the workover operations and that it had not paid Unocal anything for that activity. However, citing the problems with its bid as related to it by the Clearinghouse, Cheyenne Oil asserted that it did not own a working interest in the lease and, therefore, was not subject to the terms and conditions of the Joint | ^Operating Agreement. Additionally, Cheyenne Oil asserted that IP’s working interest was never transferred to it.

Cheyenne Oil filed its answer on February 23, 2001, and, on March 13, 2001, Unocal amended its petition to name IP as a defendant. In doing so, Unocal asserted that, because Cheyenne Oil was denying ownership of the working interest, IP still owned the interest and was, therefore, liable to it for $228,400.32. Thus, Unocal’s theory of recovery was based on Cheyenne Oil’s denial of any working interest ownership. In its answer filed on May 7, 2001, IP asserted that Cheyenne Oil did own a working interest in the lease, that it had transferred its interest in the lease to Cheyenne Oil “for good and valid consideration,” that it had no notice that the transfer was invalid, that it was never afforded the opportunity to consent to operations forming the basis of the litigation, and that Cheyenne Oil should be estopped from claiming that IP’s transfer was invalid.

On August 21, 2001, Unocal filed the motion for summary judgment that is now before us. In its motion, Unocal did not mention its claim against Cheyenne Oil, but sought a judgment against IP only. Before a hearing could be held on the motion for summary judgment, IP filed a cross-claim against Cheyenne Oil, asserting that, in the event that it was held liable to Unocal for any amount, it was entitled to judgment against Cheyenne Oil for that amount. In the cross-claim, IP asserted a number of different theories of recovery, including the terms of the purported transfer of interest itself, contractual indemnity, intentional misrepresentation, negligent misrepresentation, and detrimental reliance or equitable estoppel.

After the April 8, 2002 hearing on Unocal’s motion for summary judgment, the trial court granted the motion. In doing so, it stated no reasons for its judgment other |7than its conclusion that IP and Cheyenne Oil were solidarily liable to Unocal. At a later hearing, the trial court set the interest and attorney fees requested in the motion for summary judgment. The July 3, 2002 judgment signed by the trial court awarded judgment in favor of Unocal and against IP in the principal amount of $228,400.32, legal interest in the amount of $107,517.99 through the date of the judgment, future legal interest, and $50,000.00 in attorney fees. In its appeal, IP asserts three assignments of error.

OPINION

Motions for summary judgment are authorized by the Code of Civil Procedure, and “a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.” La.Code Civ.P. art. 966(C). Additionally,

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. The party who defended against the motion for summai'y judgment must have his properly filed allegations taken as true and must receive the benefit of the doubt when his assertions conflict with those of the movant.

Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991) (citations omitted) (second emphasis added).

The Louisiana Mineral Code addresses the relationship between the lessor and lessee relative to assignments by the lessee. See La.R.S. 31:126, et seq. However, [sit is silent concerning the effects flowing from the transfer of working interests by one working interest owner to other working interest owners. Because the Louisiana Mineral Code does not provide guidance on this issue, we must look to the Louisiana Civil Code for guidance. La.R.S. 31:2.

Louisiana Civil Code Article 1984 provides that “[r]ights and obligations arising from a contract are heritable and assignable unless the law, the terms of the contract or its nature preclude such effects.” In the matter before us, the Joint Operating Agreement specifically recognizes that a party may assign its interest in the lease. Section 25.1 of the Joint Operating Agreement provides:

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors, representatives and assigns and shall constitute a covenant running with the Lease(s). Each Party shall incorporate in any assignment of an interest in the Lease(s) a provision that such assignment is subject to this Agreement.

Unocal asserts before this court, as it did before the trial court, that La.Civ.Code art. 1821 provides the basis of liability on the part of IP. That Article provides as follows:

An obilgor and a third person may agree to an assumption by the latter of an obligation of the former. To be enforceable by the obligee against the third person, the agreement must be made in writing.
The obligee’s consent to the agreement does not effect a release of the obligor.
The unreleased obligor remains soli-darily bound with the third person.

In its first assignment of error, IP raises four arguments, the first being that La.Civ.Code art. 1821 does not support a finding of liability on its part because it is ^inapplicable to the fact situation presented. Basically, IP argues that, assuming for purposes of argument that the transfer of a working interest in an oil and gas lease creates an “obligation” under La.Civ.Code art. 1821, the Article would only apply to the obligations existing at the time of the transfer and not to those arising by virtue of the assignee’s actions after the transfer. In the remaining three arguments under the first assignment of error, IP asserts that the terms of the Joint Operating Agreement do not support imposition of liability, that Unocal was in the best position to protect itself from the situation that arose, and that genuine issues of material fact exist concerning the percentage of working interest actually owned by Cheyenne Oil. In its second assignment of error, IP asserts that, assuming liability on its part, the trial court erred in awarding interest on the damage award given the fact that it did not receive copies of the invoices in question as required by the Joint Operating Agreement. Finally, in its third assignment of error, IP asserts that the trial court erred in awarding excessive attorney fees. We need not address these assignments of error directly because we conclude that the existence of genuine issues of material fact precludes the grant of a summary judgment in favor of Unocal and that the trial court erred in granting the motion.

Unocal’s pleading which brought IP into the litigation raised unresolved genuine issues of material fact. In its supplemental and amending petition, Unocal reiterated the basis for its claim against Cheyenne Oil and added, as an “ALTERNATE THEORY OF RECOVERY,” a claim against IP based on Cheyenne Oil’s argument that IP’s working interest was never transferred to Cheyenne Oil. In other words, the cause of action against IP was based on the assumption that IP still owned the working interest. Not only is this assumption not established by the record | ^before us, but Unocal’s argument to the court is that a transfer did not take place.

This contradiction presents a basic genuine issue of material fact. If Cheyenne Oil is IP’s assignee, then IP may have obligations to Unocal regardless of whether it received notice pursuant to the Joint Operating Agreement. However, if Cheyenne Oil is not IP’s assignee and IP still owns the working interest at issue, then there exists a genuine issue of material fact as to whether IP received the appropriate notices required by the Joint Operating Agreement. Thus, as the matter now stands, one cannot separate the issue of the working interest ownership from those issues now before us, as the resolution of that issue is fundamental to establishing the liability relationships between the litigants, specifically between Unocal and IP. Because we find that resolution of this factual issue is central to determining the remaining issues in this litigation, we conclude that the trial court erred in granting Unocal’s motion for summary judgment.

DISPOSITION

We reverse the trial court’s grant of summary judgment in favor of Union Oil Company of California and against IP Petroleum Company and remand this matter to the trial court for further proceedings. We tax all costs of this appeal to Union Oil Company of California.

REVERSED AND REMANDED.

      . Although executed by the parties at different times, the joint operating agreement had an effective date of September 1, 1988.

      . We are aware that Section 22.1 of the Joint Operating Agreement provides that its terms should be "interpreted according to the laws of the State of Texas.” However, the trial court applied Louisiana law and neither party to this appeal argues that anything other than Louisiana law should apply. Because we chose to reverse on the existence of disputed material facts, the language of Section 22.1 of the Joint Operating Agreement need not be addressed.


author: | JETERS, J.

text:
    Ronnie LANTIER v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 02-1318.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Richard D. Chappuis, Jr., Kristen B. Menard, Voorhies & Labbé, Lafayette, LA, for Defendant/Appellee, Lafayette City-Parish Consolidated Government.
    M. Candice Hattan, Lafayette, LA, for Defendant/Appellee, Lafayette Municipal Fire & Police Civil Service Board.
    Louis L. Robein, Jr., Andrea J. Wilkes, Robein, Urann & Lurye, Metairie, LA, for Plaintiff/Appellant, Ronnie Lantier.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | JETERS, J.

Ronnie Lantier appeals the district court’s affirmation of the decision of the Lafayette Municipal Fire and Police Civil Service Board (Board) terminating his employment with the Lafayette City-Parish Consolidated Government. For the following reasons, we reverse the district court’s judgment and remand this matter to the Board with instructions.

DISCUSSION OF THE RECORD

Ronnie Lantier served as a fire engineer with the Lafayette City-Parish Consolidated Government Fire Department (Fire Department) for approximately twenty years before his employment termination on June 25, 2001. Lantier’s employment termination arose because of events occurring within the Fire Department between Friday, March 31, 2000, and Monday, April 3, 2000. During that period, 141 of the 194 Fire Department suppression personnel walked off the job or called in sick, allegedly in connection with a “sickout” or “blue flu.” On Saturday, April 1, 2000, officials of the Fire Department held a televised press conference to inform the public of the situation.

Lantier had worked a twelve-hour shift on Thursday, March 30, 2000, and the next day was his regular day off. He contends that on that Friday he twisted his ankle while coaching his son’s baseball team and, because of the injury, called the Fire Department on that evening to inform the appropriate personnel that he would not be able to work the next day, which was his next regularly scheduled duty day.

Lantier was not scheduled to work on Sunday, April 2, 2000. However, on that morning, the Fire Department “alarm room” called Lantier’s home. Lantier testified that he recognized the caller as being the alarm room from his telephone “caller ID” and that he did not answer the call because his ankle was still giving him problems Land because of his desire to avoid getting “a strike” for refusing to take a call for overtime. Apparently, the Fire Department had a three-strike policy for overtime calls — if an employee rejected three calls to work overtime within a fiscal year, he was taken off of the overtime list and was not allowed to work overtime for the remainder of that fiscal year. Lantier had already received one strike for an unrelated matter.

Nevertheless, later on Sunday, Lantier received a call from a different fire station. He testified that he answered this call because he was in the habit of exchanging time with other Fire Department personnel and thought it was a coworker calling to repay the time. However, when Lantier answered the call, he was told that this fire station needed drivers, and he decided to go in to help with the situation.

Thereafter, the alleged sickout spawned an administrative investigation, the results of which revealed that 72.68% of the fire personnel called in sick, whereas normal absences averaged 1.9% to 3.4% for the six months prior to and the six months after that weekend. Additionally, the investigation revealed that fire personnel called in sick on their regular shifts during the alleged sickout, yet worked overtime on shifts opposite to their own during this time.

After completion of the investigation, Fire Chief Robert P. Benoit terminated Lantier’s employment with the Fire Department effective June 25, 2001. The basis of that termination action was that Lantier had violated Lafayette Fire Department Rules and Regulations, Article XI: Dereliction of Duty, Item 17, which provides:

When an emergency has been declared by the Fire Chief, off duty members may be called to work on an overtime basis. It shall be considered the duty of each member, when notified, to respond to emergency help calls and to work until relieved. Off duty members who have been notified to report to an emergency and fail to do so shall state their reasons in writing to their commanding officer. Commanding 13officers shall forward the written statement through channels to the Fire Chief.

On the same day, Lantier appealed the disciplinary action against him.

On August 14, 2001, the Board held a hearing on the appeal of Lantier’s termination from his employment. A divided Board affirmed the disciplinary action taken against Lantier and later rejected his motion for a limited rehearing. On September 14, 2001, Lantier filed a petition for judicial review of the Board’s action to the Fifteenth Judicial District Court. The district court affirmed the Board’s decision and dismissed Lantier’s appeal. Lantier now appeals that judgment.

OPINION

Louisiana Revised Statute 33:2500 provides in part:

A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:
(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.

Additionally, “[a]ny regular employee in the classified service who feels that he has been discharged or subjected to any corrective or disciplinary action without just cause, may ... demand ... a hearing and investigation by the board to determine the reasonableness of the action.” La.R.S. 33:2501(A). Further, La.R.S. 33:2501(C)(1) provides in part:

After the investigation ... the board may, if the evidence is conclusive, affirm the action of the appointing authority. If they find that the action was not taken in good faith for cause under the provisions of this Part, the board shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which he was removed, suspended, demoted, or discharged, which reinstatement shall, if the board so provides, be | ¿retroactive and entitle him to his regular pay from the time of removal, suspension, demotion, discharge, or other disciplinary action. The board may modify the order of removal, suspension, demotion, discharge, or other disciplinary action by directing a suspension without pay, for a given period.

Thereafter, the employee and the appointing authority may appeal from the Board’s decision to the court of original and unlimited jurisdiction in civil suits of the parish wherein the board is domiciled. La.R.S. 33:2501(E)(1). However, “[t]his hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Part.” La.R.S. 33:2501(E)(3). In Tweedel v. Fire Protection District # 1 Civil Service Board, 546 So.2d 654, 655 (La.App. 3 Cir.1989), we stated:

“In good faith” has been interpreted to mean the opposite of arbitrary or capricious action or action that stems from prejudice or political expediency on the part of the appointing authority. “Cause” means legal cause and the evidence must show that the dismissal was necessary for the discipline and efficiency of the service or that it was needed to avoid some detriment to that department or to the city.

“Disciplinary action against a civil service employee will be deemed arbitrary and capricious unless there is a real and substantial relationship between the improper conduct and the efficient operation of public service.” Smith v. Mun. Fire & Police Civil Serv. Bd. of Eunice, 94-625, p. 3 (La.App. 3 Cir. 11/2/94), 649 So.2d 566, 568.

In the instant case, the record, reviewed in its entirety, reveals that the district court was clearly wrong in affirming the decision of the Board. Even rejecting as implausible Lantier’s injury explanation and activities thereafter, the evidence is equivocal at best concerning whether Chief Benoit actually declared an emergency so as to invoke the disciplinary rule. Chief Benoit testified that he declared an emergency through the April 1 press conference and through the calls by the Fire Department communications division seeking to have the | ^employees report for overtime work. A video tape of the April 1 press conference reveals that, while both the mayor and the fire chief commented on the sickout, they made it clear to the public that the situation was under control with off-duty and volunteer fire fighters covering for the absent employees. In fact, the only person in the video tape using the word “emergency” was the reporter, who stated that he was covering an “emergency meeting.” In his testimony, Chief Be-noit admitted that he did not actually say that the Fire Department was in a state of emergency but informed the public through the press conference that it was having “some problems.”

Additionally, while L antier admitted that he saw the press conference and thereby discovered that there was a sickout or “blue flu,” he testified that he was not aware that anyone had declared an emergency. Further, Patrick Wayne Chauvin, a communications officer with the Fire Department, testified that he was not aware that a state of emergency had been declared during the applicable time period. He also testified that he was never asked to inform firefighters or operators at that time that there was a state of emergency. He recalled that he was asked “to start calling a lot of overtime when the guys were calling in sick,” but he testified that the Fire Department was never understaffed and that every truck was manned. Importantly, it is the appointing authority that has the burden of proof. See id.

Even assuming that Chief Benoit had in fact declared an emergency, he admitted that there was “a systematic situation” in which other firefighters were being called to come in but were not answering their phones, which situation he described as being “pretty widespread.” Apparently, these firemen were not disciplined because Chief Benoit could not prove they were at home at the time. Further, Chief Benoit admitted that on the same day that Lantier called in sick, six individuals went home, | ¿yet they were not disciplined.

Rather, it appears in this situation that the discipline of Lantier was politically expedient and disparate rather than necessary. In this respect, the most damaging evidence came from Chief Benoit, who testified as follows: “I told Ronnie to save himself.... I told him to name names. I told him, ... ‘You know for a fact that this was an orchestrated event. All I’m going to tell you is that you’re in trouble. Okay? Save yourself. Now, you know what happened. You know what the rumor mill is out there. I can’t make you say anything. I’m just telling you as a last effort before I make a decision. You’re in trouble. Here’s what could happen to you. Save yourself.’ ” Chief Benoit further testified: “I knew the conspirators of this sickout were not going to get caught. It was going to be the innocent individuals who didn’t want to go along with this program that were going to get caught. That’s where we are today. Ronnie was an innocent victim of circumstance. I was trying to help him to get him to understand, ‘Save yourself. Don’t let those guys take you down the river, because you have too much to lose.’ ” (Emphasis added.) Rather than “naming names,” Lantier denied any wrongdoing. Regardless of the truthfulness of Lantier’s version of the events, the evidence reveals that the appointing authority’s action was not in good faith or for cause. It is clear that Lantier was dismissed, not because he violated a disciplinary rule, but because he did not provide the information required by Chief Benoit. Accordingly, the Board and the district court were clearly wrong in affirming Lantier’s dismissal. Thus, we reverse and remand to the district court with instructions to remand to the Board for proceedings consistent with this opinion.

DISPOSITION

For the foregoing reasons, we reverse the district court and remand with 17instructions to remand to the Board for proceedings consistent with this opinion. We assess costs to the Fire Department and Board to the extent allowed by law.

REVERSED AND REMANDED WITH INSTRUCTIONS.


text:
    Barbara A. DOPSON v. Berta THIBODEAUX, et al.
    No. 02-1313.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      Peter C. Piccione, Jr., Lafayette, LA, For Defendants/Appellees, Berta Thibo-deaux and Marshall Thibodeaux.
    John Henri Pucheu, Pucheu, Pucheu & Robinson, LLP, Eunice, LA, For Plaintiff/Appellant, Barbara A. Dopson.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   liAMY, Judge.

In this malicious prosecution case, the plaintiff appeals the amount of damages awarded by the trial court. For the following reasons, we affirm the judgment as amended.

Factual and Procedural Background

This case arises out of a family dispute that occurred on February 29, 2000, in Crowley, Louisiana. Curtis Trahan is the deceased brother of Berta Thibodeaux, Barbara Dopson, Bobby Smith, Lee Roy Trahan, and Douglas Trahan. As the result of Curtis’ death, Barbara, Berta and Lee Roy were named co-executors of Curtis’ estate. Additionally, Berta and her husband, Marshall Thibodeaux, took physical possession of Curtis’ home while caring for Douglas who suffers from muscular dystrophy. Douglas had lived with Curtis before Curtis’ death,

On February 29, 2000, Barbara, Bobby and Lee Roy went to Curtis’ house to take an inventory because they were concerned that Berta and Marshall would remove items from the house. Berta, Marshall, Douglas, and Kristie Monceaux, a hired caretaker of Douglas, were present at the house when they arrived. After Berta objected to an inventory being taken at that particular time, an argument erupted between the siblings, and Berta called the police. Barbara’s son, E.J. Marceaux, testified that Marshall told the police who responded to Curtis’ home, that he saw Barbara with a gun. Officer Floyd Robinson testified that, if Marshall had not made this statement, he would not have arrested Barbara. Instead, Officer Robinson stated that he would have taken statements from everyone present and would have referred the matter to the district attorney to decide whether to file charges. But, since the | ^statement was made, Officer Robinson said that Barbara was arrested and booked at the Crowley Police Department for aggravated assault. Thereafter, due to Barbara’s poor physical health, she was issued a citation and released without being required to post bail.

Marshall, Berta, and Kristie also went to the Crowley Police Department to give voluntary statements. The voluntary statement signed by Marshall at the police station, but transcribed by Officer Robinson, provides that Barbara “pulled a gun in a brown holster out of her pocket and pointed it at me and my wife and said she would use it.” However, Marshall denied saying that he saw Barbara with a gun. In the statements given by Berta and Kristie, neither Berta nor Kristie state that they actually saw a gun. Rather, Berta and Kristie’s statements both provide that Barbara said that she had a gun and she would use it. The record indicates that the District Attorney of the Fifteenth Judicial District charged Barbara by bill of information with aggravated assault. The record also demonstrates that the matter was continued without a date on May 18, 2000.

On May 15, 2001, Barbara brought an action against Berta and Marshall, alleging malicious prosecution. After a bench trial held August 20, 2002, the trial court found Marshall liable and gave the following written reasons for ruling:

The Court is of the opinion that MARSHALL THIBODEAUX told Officer Floyd Robinson that he saw a gun. This caused the arrest. The Court is of the opinion that there was no probable cause for the arrest, except that Officer Floyd Robinson was told by MARSHALL THIBODEAUX that BARBARA DOPSON had a gun. There was no gun found by the police or anyone else. Later MR. THIBODEAUX denied that he ever said there was a gun.
The Court is of the opinion that Officer Robinson did not make a mistake in transcribing the statement.
| «This statement from THIBO-DEAUX, which was not accurate, appears to the Court to be malicious. Therefore, the court [sic] is of opinion that there should be judgment in favor of plaintiff and damages in the amount of $750.00 in fees paid to Mr. Kenneth Privat are awarded. All costs to be paid by defendant.

Barbara now appeals, alleging the following assignments of error:

A. The trial court erred by failing to apply the presumption of damages resulting from finding that Barbara Dop-son was the victim of malicious prosecution by the defendants.
B. The trial court erred in fading to award plaintiff any general damages for her mental anguish, public humiliation, and inconvenience in connection with her arrest and court appearances.
C. The trial court erred in failing to award plaintiff damages of at least $5,750.00.

Discussion

In her brief, Barbara asserts that the trial court should have presumed damages because she had proven all of the other elements to recover for malicious prosecution. As such, Barbara contends that she is entitled to recover general damages for her mental anguish, public humiliation, and inconvenience in addition to the special damages awarded for legal fees; and, she urges this court to increase her damage award by $5,000.

On the other hand, the brief submitted on behalf of Marshall generally asserts that the trial court erred in awarding any damages to Barbara and that the trial court’s judgment should be reversed. However, La.Code Civ.P. art. 2133(A) provides:

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. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the 14appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.

Applying La.Code Civ.P. art. 2133(A) to a similar factual scenario, a panel of this court ruled: “An appellate brief or argument in an appellate brief does not satisfy the requirements of Article 2133.” Perkins v. Rapides Parish Police Jury, 98-1899, p. 12 (La.App. 3 Cir. 5/5/99); 738 So.2d 607, 613, writs denied, 99-1798, 99-2117 (La.10/1/99); 748 So.2d 451, 748 So.2d 455. As Marshall has neither filed an appeal nor has he answered the appeal filed by Barbara, the finding of liability for malicious prosecution is now a final judgment. Therefore, our analysis is limited to the issue of damages.

Here, our concern is not that the trial court awarded special damages, but did not award general damages. See Wainwright v. Fontenot, 00-492 (La.10/17/00); 774 So.2d 70. Rather, we consider that liability is now a final judgment and that Barbara presented evidence supporting an award of general damages. She testified that, when she was arrested, she was escorted out Curtis’ home wearing handcuffs in front of a large crowd. Barbara additionally testified that information concerning her arrest was published in the Crowley Post Signal, and this newspaper article was admitted into evidence. Also, Barbara testified that she had to make several trips from Opelousas to Crowley to meet with her attorney and that she made one court appearance. In light of these facts and circumstances, we find that the trial court erred in failing to award general damages. We do so now, awarding an additional $2,500.00.

I .DECREE

For the foregoing reasons, the judgment of the trial court is amended to . award an additional $2,500.00 in general damages. All costs of this appeal are assigned to the defendant-appellee, Marshall Thibodeaux.

AFFIRMED AS AMENDED.

      . The testimony established that Barbara and Bobby are twin sisters.

      . Counsel for Berta and Marshall Thibodeaux emphasized that this date was the day after Curtis Trahan's burial.

        .See La.R.S. 14:37.


author: | JIMMIE C. PETERS, Judge.

text:
    STATE of Louisiana v. Lavelle MYERS a/k/a Lavelle Coleman.
    No. 02-1296.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2003.

      G. Paul Marx, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Lavelle Myers, a/k/a Lavelle Coleman.
    Joseph P. Beck, II, District Attorney, Colfax, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   | JIMMIE C. PETERS, Judge.

The defendant, Lavelle Myers, also known as Lavelle Coleman, was charged by grand jury indictment with second degree murder, a violation of La.R.S. 14:30.1. A jury convicted him of the charge, and the trial court sentenced him to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant has appealed his conviction, asserting six assignments of error. For the following reasons, we affirm the conviction in all respects.

DISCUSSION OF THE RECORD

After being charged with his brother’s murder, the defendant entered a plea of not guilty and not guilty by reason of insanity. At the request of the defendant, the trial court appointed a sanity commission, consisting of Drs. Marshall E. Belaga and Vijaya L. Boppana. The trial court held a hearing on the sanity issue on April 29, 2002, and, after the evidence was presented, concluded that the defendant was able to distinguish right from wrong, to understand the proceedings against him, and to assist in his defense. The three-day trial commenced on June 17, 2002, with the jury returning its verdict on June 19, 2002.

The defendant and the victim, John Coleman, are brothers, and, on May 20, 2001, they were living together in a house trailer located north of Pollock, Louisiana, in Grant Parish. At approximately 3:30 p.m. on that day, three parish law enforcement officers went to the trailer to investigate a report that a corpse had been found in the residence. Upon arrival, they found no evidence of forced entry into the residence and discovered the victim’s decapitated body lying in a bathtub. Not only had his head been severed from his torso, but his genitalia had been severed as well. The victim’s body appeared to have been washed, as there was very little blood in the Ubathtub. The investigating officers subsequently discovered the severed genitalia beneath the victim’s left leg, but they did not find the severed head at the scene.

Grant Parish Sheriffs Detective Jody Bullock collected blood samples in the bathroom where the victim’s body was located, in the hall leading from the bathroom to the victim’s bedroom, and in the bedroom itself. While examining the bedroom, Detective Bullock initially observed that the bed appeared to be made up. However, when he removed the top cover, he found that the bed contained no linens. Detective Bullock then lifted the mattress on the bed and observed blood stains on the underneath side as if it had been “flipped” over. Additionally, he observed blood splatters on the bedroom window blinds and collected a spent .22-caliber shell casing from the bedroom floor. During the course of his investigation, Detective Bullock walked to the defendant’s bedroom where he discovered a loaded Marlin .22-caliber rifle behind the bedroom door. According to Detective Bullock, the rifle appeared to have been wiped clean, but a closer inspection revealed what appeared to be blood splatters on the lens of the scope mounted on the rifle. Subsequent scientific testing established that the blood found on the scope of the rifle matched that of the victim and that the spent .22-caliber shell found in the victim’s bedroom had been fired from the Marlin .22-caliber rifle found in the defendant’s bedroom.

Two days later, on May 22, 2001, Detective Bullock recovered the victim’s severed head from a dumpster near Georgetown, Louisiana. The victim had been shot twice in the head at close range by a small-caliber weapon. Additionally, he recovered, from the dumpster, a pillow and sheets with substantial amounts of blood on them, as well as some underwear and socks.

The defendant was present at the trailer when the deputies arrived on May 20. On that day, he gave two separate statements to the members of the investigating 13team. At approximately 4:26 p.m., the defendant gave a statement to Grant Parish Sheriff Deputy John T. Montgomery, one of the first deputies to arrive on the scene. Deputy Montgomery testified concerning the fact that he took the statement, but did not elaborate on its content. At 11:00 p.m., Deputy Montgomery and Detective Bullock questioned the defendant a second time. According to Detective Bullock, in this statement, the defendant asserted that he and his brother had been involved in a physical altercation sometime during the day and that the defendant had struck the victim, rendering him unconscious. Detective Bullock testified that the defendant informed him that he then panicked and telephoned unidentified individuals to come and “fix his problem.” Initially, the defendant suggested that he agreed to pay the unnamed individuals $1,000.00, but later in his statement, it became unclear whether he agreed to pay anything. In any event, the defendant was unable to provide the officers with names or telephone numbers of the alleged individuals. Detective Bullock testified that after the statement, he urged the defendant to tell the truth. According to the detective, the defendant responded that he would if he could be guaranteed that he would be placed in a mental hospital.

When the deputies first arrived at the trailer on May 20, Johnny W. Moss, a step-cousin to the defendant and his brother, was also present. He testified that he had been called by the defendant to come to the trailer and that, when he arrived, the defendant informed him that the victim was in the bathtub. Mr. Moss was aware that the defendant and his brother had quarreled regularly before the May 20 homicide. According to Mr. Moss, the victim had recently told him that he wanted the defendant to move out. On another occasion, according to Mr. Moss, the defendant had stated that if the victim “didn’t let him alone, he was going to cut his head off.”

| ¿The state presented evidence of two other incriminating statements made by the defendant after his arrest for his brother’s murder. The first occurred on October 2, 2001, when Sergeant Chris Woodard of the Grant Parish Sheriffs Office allowed a trustee to take a juvenile for a tour of the jail in an effort to impress upon the juvenile the consequences of criminal behavior. Sergeant Woodard trailed behind the trustee and the juvenile, and, as they approached the defendant’s cell, the trustee asked the defendant to tell the juvenile why he was incarcerated. According to Sergeant Woodard, the defendant responded that he had cut off a man’s head and genitals.

The other statement was made to Johnny Ray Desselle, who shared a cell in the parish jail with the defendant for a period of time before trial. According to Mr. Desselle, the defendant told him that he and his brother had gotten into an altercation over some checks he had written for crack cocaine and that the victim had wanted him to move from the trailer. Mr. Desselle testified that the defendant told him that he had shot his brother as he lay in bed and that he had dragged the body to the bathtub where he “cut him like he did a deer.”

Susan Garcia, a New Orleans, Louisiana forensic pathologist, performed an autopsy on the victim. According to Ms. Garcia, the victim died from the gunshot wounds to the head and not the decapitation. She testified that the shots were fired at contact range and that the entry holes were consistent with small-caliber projectiles. She also noted that the body contained no defensive wounds, indicating to her that he was shot while incapacitated by intoxication or sleep.

On appeal, the defendant raises six assignments of error:

1. The trial court erred in that the question of capacity to proceed was not subject to a full hearing, where over defense objection, one of the commission members did not testify and only submitted a written report.
|K2. The trial court erred in allowing inadmissable opinion testimony from an investigating officer, which testimony was highly prejudicial and not based on anything other than conjecture.
3. The trial court erred in that it did not suppress the testimony of an ‘inmate counsel’ who secured information from the appellant on the pretense of ‘representing’ him before the courts of this state and there fore [sic] in violation of the appellant’s privilege to confidentiality of communications with his legal representatives.
4. The evidence is insufficient to support the verdict of guilty of second degree murder.
5. The trial court erred in that it refused to include the penalty for manslaughter when charging the jury as to that responsive verdict.
6. The indictment is a nullity because the trial court selected the grand jury foreperson in contravention of article 413 B of the Louisiana Code of Criminal Procedure.

Assignment of Error Number 4

The defendant’s fourth assignment of error challenges the sufficiency of the evidence presented by that state. We will consider if first because, as the supreme court has explained:

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accordance with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) in the light most favorable to the prosecution, could not reasonably conclude that all of the essential elements of the offense have been proved beyond a reasonable doubt. When the entirety of the evidence, including inadmissible evidence which was erroneously admitted, is insufficient to support the conviction, the accused must be discharged as to that crime, and any discussion by the court of the trial error issues as to that crime would be pure dicta since those issues are moot.

State v. Hearold, 603 So.2d 731, 734 (1992) (footnote omitted).

Louisiana Revised Statute 14:30.1 provides, in pertinent part:

A. Second degree murder is the killing of a human being:
|fi(l) When the offender has a specific intent to kill or to inflict great bodily harm....

Although the defendant plead not guilty and not guilty by reason of insanity, the jury had to determine whether the state established the elements of second degree murder before considering the question of the defendant’s mental capacity. State v. Marmillion, 339 So.2d 788 (La.1976).

There is no question that a specific-intent killing occurred in this case. The defendant simply argues that the evidence is not sufficient to establish beyond a reasonable doubt that he killed his brother. Applying the Jackson standard and reviewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have reasonably concluded that all the elements of the offense were established beyond a reasonable doubt. Therefore, we find no merit in this assignment of error.

Assignment of Error Number 1

The defendant questions the procedural correctness of the sanity hearing in this assignment of error. Specifically, the defendant asserts that the trial court did not hold a full sanity hearing because it accepted the report of one of the doctors without hearing his testimony.

At the April 29, 2002 hearing, the state filed the written report of Dr. Belaga dated April 24, 2002, and rested. Counsel for the defendant immediately objected to the introduction of the report in particular and the proceedings in general. His general objection was based on the fact that the other member of the sanity commission, Dr. Boppana, was not present. The trial court overruled these objections, and the defendant called Dr. Belaga to the stand for cross examination. In rendering its |7ruling on the sanity issue, the trial court had both Dr. Belaga’s report and his testimony to consider.

Louisiana Code of Criminal Procedure Article 647 provides:

The issue of the defendant’s mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney. Regardless of who calls them as witnesses, the members of the commission are subject to cross-examination by the defense, by the district attorney, and by the court. Other evidence pertaining to the defendant’s mental capacity to proceed may be introduced at the hearing by the defense and by the district attorney.

(Emphasis added.)

The transcript of the April 29, 2002 hearing establishes that the issue before the trial court was the defendant’s capacity to assist his attorneys. On this issue, a defendant is presumed to be sane. La.R.S. 15:432. The defendant bears the burden by a preponderance of the evidence. State v. Burmaster, 97-517 (La.App. 3 Cir. 2/25/98), 710 So.2d 274. However, the fact that Dr. Boppana did not participate by report or testimony does not in itself suggest an error. Having the burden of proof on the issue before the trial court, the defendant was free to subpoena Dr. Boppana or any other doctor that might be helpful to his case. Furthermore, “[t]he law presumes the defendant’s sanity.... While a court is permitted to receive the aid of expert medical testimony on the issue, the ultimate decision of competency is the Court’s alone.” State v. Bibb, 626 So.2d 913, 927-28 (La.App. 5 Cir.1993), writ denied, 93-3127 (La.9/16/94), 642 So.2d 188 (citations omitted).

In arguing that the trial court erred in considering the testimony of only one of the sanity commission doctors, the defendant cites this court to the holding in State v. Green, 94-0034 (La.App. 4 Cir. 2/16/94), 632 So.2d 1187, writ denied, 94-0672 (La.4/29/94), 637 So.2d 464, wherein the trial court appointed only one physician to examine the defendant and determined his competency without holding a contradictory hearing. The fourth circuit concluded that these actions did not comply with the sanity commission membership requirement of La.Code Crim.P. art. 644(A) or the contradictory hearing requirement of La.Code Crim.P. art. 647.

In the matter currently before this court, the trial court appointed two physicians and held a contradictory hearing. Each of the sanity commission doctors evaluated the defendant and submitted reports. We find no authority for the defendant’s assertion that the trial court is required either to hear testimony from both doctors or to consider both reports on the record. We find no merit in this assignment of error.

Assignment of Error Number 2

In this assignment of error, the defendant asserts that the trial court erred in allowing Detective Bullock to give his opinion on certain matters. The defendant’s argument focuses upon two statements by Detective Bullock given in response to questioning by the state. In the first statement, the state asked Detective Bullock his opinion or theory of what occurred in the victim’s bedroom. The officer responded, “The victim was laying in bed. He was shot in bed with a weapon.... ” Later in his testimony, the state asked Detective Bullock to comment on his understanding of the defendant’s statement that he had hired others to kill his brother. In response, Detective Bullock stated that he considered the story “bogus.” The defendant timely objected to both questions.

Detective Bullock was not called by the state as an expert witness. Louisiana Code of Evidence Article 701 provides:

laIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are:
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

While we have not been directed by the defendant or the state to any jurisprudence directly on point, there are several cases that are analogous.

In State v. Debrow, 34,161 (La.App. 2 Cir. 3/2/01), 781 So.2d 853, writ denied, 01-0955 (La.2/8/02), 807 So.2d 860, writ denied, 01-0989 (La.2/8/02), 807 So.2d 862, writ denied, 01-1055 (La.3/8/02), 810 So.2d 1152, writ denied, 01-0945 (La.3/22/02), 811 So.2d 922, the court held that the lay witness opinion testimony of the two officers was admissible because their testimonies were based on experience and in direct response to attacks by the defendants on the credibility of their testimonies. In State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, writ denied, 00-0544 (La.11/13/00), 773 So.2d 156, this court held that an officer could give his opinion of the reliability of the victim’s identification of the defendant. In State v. Thomas, 30,490 (La.App. 2 Cir. 4/8/98), 711 So.2d 808, writ denied, 99-0331 (La.7/2/99), 747 So.2d 8, a deputy’s opinion that a child’s earlier statements had been consistent was held admissible because the defendant had attacked the child’s credibility. In State v. Harvey, 26,613 (La.App. 2 Cir. 1/25/95), 649 So.2d 783, 793, writ denied, 95-0430 (La.6/30/95), 657 So.2d 1026, writ denied, 95-0625 (La.6/30/95), 657 So.2d 1028, an officer’s opinion that evidence had been removed from the defendant’s home was permissible because it was based on a “natural inference from observed facts.” In State v. Converse, 529 So.2d 459 (La.App. 1 Cir.), writ denied, 533 So.2d 355 (La.1988), the court held that it was permissible for a deputy to testify linthat pieces of wire, like those discovered beneath Converse’s jail-cell mattress, could be used as a dangerous instrument and cause injury because the opinion was based on the deputy’s observations and experience.

In the present case, unlike Débrow and Thomas, Detective Bullock’s credibility had not been put at issue. However, we conclude that the jurisprudence, including the holdings in Debrow and Thomas, establishes that La.Code Evid. art. 701 permits an investigating officer to give opinion testimony in certain instances, including the testimony challenged in the instant case. Detective Bullock did not impermis-sibly testify concerning the ultimate issue of guilt or innocence; his theory that the victim had been shot while lying in bed did not lead directly to the conclusion that the defendant killed the victim. Furthermore, although the officer’s assessment of the defendant’s statement constituted an attack on the defendant’s credibility, it did not necessarily lead to a conclusion that the defendant was guilty. Therefore, we find no merit in this assignment of error.

Assignment of Error Number 3

On June 11, 2002, the defendant filed a motion to suppress the testimony of Johnny Desselle, asserting that any statements made to Mr. Desselle by the defendant were privileged because Mr. Desselle had been retained by the defendant as an “inmate counsel” to file pleadings on his behalf. After a hearing, the trial court denied the motion. In this assignment of error, the defendant asserts that the trial court erred in not suppressing Mr. Des-selle’s testimony.

The party seeking to assert a privilege bears the burden of proof. Cacamo v. Liberty Mut. Fire Ins. Co., 99-1421, 99-1903 (La.App. 4 Cir. 10/10/01), 798 So.2d 1210, writ denied, 01-2985 (La.1/25/02), 807 So.2d 844. There exists a lawyerjclientn privilege in this state. La. Code Evid. art. 506. Under the specifics of that privilege, a lawyer may not disclose a “confidential communication ... made for the purpose of facilitating the rendition of professional legal services to the client.” La.Code Evid. art. 506(B). As used in applying the privilege, a lawyer is defined as “a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” La.Code Evid. art. 506(A)(3).

The defendant acknowledges that Mr. Desselle is not a lawyer, but argues that he should not be allowed to induce the defendant “to provide privileged information under the guise of legal representation and then be unrestrained by the privilege that would apply in every other situation.”

The defendant argues that applying the subjective test set forth in State v. Fleury, 545 So.2d 1208 (La.App. 4 Cir.1989), should preclude the use of Mr. Desselle’s testimony. However, we find the holding in Fleury to be inapplicable to the matter now before this court. The fourth circuit in Fleury based its decision on La.R.S. 15:475, which was repealed by 1992 La. Acts No. 376, § 6, effective January 1, 1993. Former La.R.S. 15:475 provided, in part, that “[no] legal advisor is permitted, ... unless with his client’s express consent, to disclose any communication made to him as such legal adviser by or on behalf of his client....” (Emphasis added.) The Fleury court declined to reach the question of which test, the objective or the subjective, was the proper test under which it should analyze the defendant’s attempt to invoke the attorney-client privilege because it concluded that the defendant was unable to assert the privilege under either test. However, the court did nonetheless acknowledge that the objective test is applied if the individual consulted was, in fact, a lawyer and that the subjective test is applied if the client reasonably | ^believed that the individual consulted is a lawyer but, in fact, was not a lawyer. The current definition of “lawyer” found in La.Code Evid. Art. 506(A)(3), which was added by 1992 La. Acts No. 376, § 1, effective January 1, 1993, resembles both the objective test and the subjective test discussed by the Fleury court.

It is undisputed that Mr. Desselle is not a lawyer. Additionally, at the June 13, 2002 hearing on the motion to suppress Mr. Desselle’s testimony, the defendant introduced no evidence to establish that he reasonably believed that Mr. Desselle was authorized to practice law. Thus, he failed to establish that Mr. Desselle fell within the statutory definition of “lawyer” pursuant to La.Code Evid. art. 506(A)(3), and we are not inclined to extend the privilege to persons falling outside that definition. Therefore, we find no merit in this assignment of error.

Assignment of Error Number 5

In this assignment of error, the defendant asserts that the trial court erred in refusing to instruct the jury concerning the penalty for a manslaughter conviction when charging the jury regarding verdicts responsive to second degree murder. We find no merit in this assignment of error.

In State v. Cooper, 96-119, p. 12 (La.App. 3 Cir. 7/17/96), 678 So.2d 59, 66, writ denied, 96-2121 (La.1/24/97), 686 So.2d 857, this court explained:

As stated by the Louisiana Supreme Court in State v. Blackwell, 298 So.2d 798, 804 (La.1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 656 (1975), “[o]ur law does not require that the judge charge the jury on penalty, nor, however, does it prohibit such a charge.” The court ruled that it was within the trial judge’s discretion whether to allow the jury to be informed of the penalty either during closing arguments or the jury instructions. The later case of State v. Jackson, 450 So.2d 621, 633 (La.1984), summarized the current status of the law:
When the penalty imposed by the statute is a mandatory one, the trial judge must inform the jury of the penalty on request of the defendant and must permit the l13defense to argue the penalty to the jury. State v. Hooks, 421 So.2d 880 (La.1982); State v. Washington, 367 So.2d 4 (La.1978). In instances other than when a mandatory legislative penalty with no judicial discretion as to its imposition is required following verdict, the decision to permit or deny an instruction or argument on an offense’s penalty is within the discretion of the trial judge. State v. Williams, 420 So.2d 1116 (La.1982); State v. Dawson, 392 So.2d 445 (La.1980); State v. Carthan, 377 So.2d 308 (La.1979); State v. Blackwell, 298 So.2d 798 (La.1974) (on rehearing), cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 656 (1975).
(Emphasis added).
Therefore, the decision to include the penalties for the charged offense and all lesser included offenses in the jury instructions rested within the exercise of the trial judge’s discretion.

We find no abuse of discretion in the trial court’s decision not to instruct the jury concerning the penalty for manslaughter. Thus, we reject this assignment of error.

Assignment of Error Number 6

In his final assignment of error, the defendant asserts that the trial court improperly selected the foreperson of the grand jury that indicted him. He argues that the selection was not a random selection as required by La.Code Crim.P. art. 413(B).

Louisiana Code of Criminal Procedure Article 413(A) provides that “[t]he grand jury shall consist of twelve persons plus a first and second alternate for a total of fourteen persons qualified to serve as jurors, selected or drawn from the grand jury venire.” Additionally, La.Code Crim.P. art. 413(B) provides:

The sheriff or in Orleans Parish the jury commissioner shall draw indiscriminately and by lot from the envelope containing the remaining names on the grand jury venire a sufficient number of names to complete the grand jury. The envelope containing the remaining names shall be replaced into the grand jury box for use in filling vacancies as provided in Article 415. The court shall cause a random selection to be made of one person from the impaneled grand jury to serve as foreman of the grand jury.

114(Emphasis added.)

The trial court held a hearing on the defendant’s motion to quash the grand jury indictment on June 13, 2002. At that hearing, the trial court acknowledged that when the grand jury was originally empaneled in March of 2001, the selection of the original foreperson, William Todd Durham, was not a random selection. However, subsequent to his selection, Mr. Durham became employed with the Grant Parish Sheriffs Office and resigned his position as a member of the grand jury. The trial court then selected Lawrence Jones, also a member of the grand jury, as the new foreperson. Mr. Jones, as foreman, signed the indictment charging the defendant with second degree murder.

The selection of Mr. Jones was not a random selection either. At the June 13 hearing, the trial court stated that the appointment was pursuant to the authority of La.Code Crim.P. art. 415(B) which provides, in part: “If the foreman of the grand jury is, for any reason, unable to act, the court shall designate some member of the grand jury to serve as acting foreman or to serve as a new foreman of that grand jury.” (Emphasis added.)

While the defendant has shown a procedural error in the original grand jury foreperson selection process, he has failed to establish any irreparable injury as a result of the flawed selection process.

A general venire, grand jury venire, or petit jury venire shall not be set aside for any reason unless fraud has been practiced, some great wrong committed that would work irreparable injury to the defendant, or unless persons were systematically excluded from the venires solely upon the basis of race.

La.Code Crim.P. art. 419(A).

We find no merit in this assignment of error.

h fErrors Patent

In accordance with La.Code Crim.P. art. 920, we have reviewed the record for errors patent on the face of the record and have found one that must be addressed. In imposing sentence, the trial court is required to inform the defendant that he has two years from the date his judgment of conviction is final to seek post-conviction relief. La.Code Crim.P. art. 930.8. The trial court failed to do so in this case. Because the prescriptive period does not commence until the judgment is final, prescription has not yet begun to run. This error patent may be cured by the trial court sending written notice to the defendant that informs him of the prescriptive period for post-conviction relief.

DISPOSITION

The defendant’s conviction and sentence are affirmed. The trial court is instructed to send written notice to the defendant within ten days of the rendition of this opinion to advise the defendant of the prescriptive period for post-conviction relief. The trial court shall file written proof in the record to verify that the defendant received such notice.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.