author: I j>SOL GOTHARD, Judge.

text:
    STATE of Louisiana v. Lionel REDDITT.
    No. 03-KA-0354.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Paul D. Connick, Jr., District Attorney, Margaret E. Hay, Terry M. Boudreaux, Frank Brindisi, Vincent Paciera, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and THOMAS F. DALEY.
   I j>SOL GOTHARD, Judge.

Defendant, Lionel Redditt, appeals his conviction and sentence in this criminal appeal. For reasons that follow, we affirm.

The record shows that, on May 16, 2001, the Jefferson Parish District Attorney’s Office filed a bill of information charging defendant, Lionel Redditt, along with Prescott Smith, with one count of second degree kidnapping in violation of La. R.S. 14:44.1, and one count of armed robbery in violation of La. R.S. 14:64 . On May 18, 2001, defendant was arraigned and entered a plea of not guilty to the charges. After preliminary rulings on various motions, defendant proceeded to a jury trial.

After a two-day trial in May 2002, a 12-person jury found the defendant guilty as charged on both counts. Thereafter, on June 13, 2002, defendant was sentenced to 40 years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence as to count one, second degree kidnapping, and 50 years of imprisonment at hard labor without benefit of parole, probation, or suspension as to count two, armed robbery. The trial court ordered the sentences to run concurrently.

|aOn November 21, 2002, the State filed a habitual offender bill of information alleging defendant to be a third felony offender. On January 16, 2003, after the denial of a defense motion to quash the habitual offender bill of information, the court held a habitual offender hearing and found defendant to be a second felony-offender Thereafter, the trial court vacated defendant’s original sentence as to count two, armed robbery, and re-sentenced defendant to 198 years at hard labor without the benefit of probation, parole, or suspension of sentence to run concurrently with his 40-year sentence on count one in the original bill of information. On January 22, 2002, the defendant filed a motion to reconsider sentence, which was denied on February 11, 2002. Defendant, thereafter, filed a timely motion for appeal.

FACTS

The victim, Raion Hill, testified that, on January 22, 2001, after leaving his girlfriend’s home, he proceeded to the Rhythm City Nightclub in New Orleans. After staying five or ten minutes, the victim and a female acquaintance, exited the club and walked back to the victim’s vehicle. Before driving away from the parking lot of the club, the victim observed defendant pointing at the vehicle. Thereafter, the victim and his friend drove to Denny’s Restaurant in Gretna near the Oakwood Mall. After getting his food order, the victim exited the restaurant by himself and made his way to his vehicle, at which time he was approached by two men, one of whom was the defendant herein. The other individual, Prescott Smith, put a gun to the victim’s side and forced him into the rear seat of his own vehicle. ^Defendant got into the driver’s seat of the vehicle, while Smith joined the victim in the back seat.

Defendant drove away from the restaurant and proceeded towards New Orleans. After driving through the toll plaza, Smith and defendant switched seats and Smith drove to New Orleans, exited at Claiborne Avenue, and drove to an Automated Teller Machine (ATM) on Elysian Fields. At the ATM defendant and Smith attempted to withdraw cash, but were unable to do so because the victim could not remember his personal identification number. Thereafter, defendant and Smith dropped the victim off near Brother Martin High School, taking the vehicle. The victim called the police from a nearby payphone and relayed the events that occurred.

Officer Scott DeJong testified that he was employed by the Jefferson Parish Sheriffs Office in January of 2001, and conducted an investigation into the robbery of Mr. Hill. As a result of his investigation, he interviewed the victim and obtained a description of the perpetrators. The victim was also able to give a description of defendant to a composite sketch artist and a sketch was rendered. Subsequently, Officer DeJong was able to develop defendant as a possible suspect in the case. A photographic lineup containing defendant’s photograph was compiled and shown to the victim. The victim made a positive identification and defendant was later arrested.

Officer DeJong, after advising defendant of his constitutional rights and obtaining a waiver of those rights, obtained two separate statements from defendant in which defendant indicated his involvement in the crimes. Defendant also indicated that the gun used in the robbery could be found at 1308 Tupelo Street in New Orleans. At the request of Officer DeJong, Detective Darrell Doucette of the New Orleans Police Department (N.O.P.D.) obtained a search warrant.

1 ¡¡Detective Kevin Decker of the Jefferson Parish Sheriffs Office testified he was present during defendant’s first two statements given to Officer DeJong, and subsequently obtained a third statement from the defendant in which defendant identified certain individuals connected to the robbery from photographic lineups. Detective Decker also assisted in the execution of the search warrant and testified that various items belonging to defendant were seized from the Tupelo Street address. Defendant was subsequently charged with the crimes in the bill of information.

LAW

In brief to this Court defendant assigns three errors for our review. In the first, defendant argues the trial court erred in denying a defense motion to suppress a statement made to investigating officers. Specifically, defendant argues, the motion to suppress should have been granted because the investigating officer conceded that he knowingly questioned the defendant while the defendant was already heavily intoxicated and further, made promises to this defendant in exchange for a statement that incriminated defendant and another individual. Defendant asserts that at the time of the statements, he was highly intoxicated. Defendant also argues that the investigating officers’ promises of a favorable outcome if he cooperated were coercive and rendered his statements involuntary.

The State responds that there was no evidence defendant was intoxicated at the time of his statements, or that the officers’ statements were sufficient inducements to render defendant’s statements inadmissible.

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his constitutional rights and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement or promises. La. R.S. 15:451; State v. Comeaux, 93-2729 (La.7/1/97), 699 So.2d 16, 29, cert. denied, 522 U.S. 1150, 118 S.Ct. 1169, 140 L.Ed.2d 179 (1998).

A determination of voluntariness is made on a case-by-case basis, depending on the facts and circumstances of each situation. State v. Quest, 00-205 (La.App. 5 Cir. 10/18/00), 772 So.2d 772, 780, writ denied, 00-3137 (La.11/2/01), 800 So.2d 866; State v. Watts, 98-1073 (La.App. 5 Cir. 5/19/99), 735 So.2d 866, 869. The admissibility of a confession or statement is a determination for the trial judge and his conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. Id. Intoxication renders a confession involuntary when the intoxication is of such a degree as to negate the defendant’s comprehension and to make him unconscious of the consequences of what he is saying. State v. Narcisse, 426 So.2d 118, 125 (La.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 176 (1983); State v. Quest supra, at 780. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact; a trial judge’s conclusions on this issue will not be disturbed unless unsupported by the evidence. State v. Quest, supra, at 780.

At the hearing on the motion to suppress, defendant testified that, on the day of his arrest, he had been “shooting” heroin and had been “shooting it” for the previous three days. He maintained that five to ten minutes after “shooting up” he was arrested and taken to the New Orleans Police Fifth District Station. Defendant recalled being driven to the station by a uniformed New Orleans police officer in an unmarked car; however, he claimed that he did not remember being questioned at the station.

Officer DeJong and Detective Decker testified that they obtained three statements from defendant. Prior to taking the statements, Officer DeJong advised defendant of his constitutional rights via a “RIGHTS OF ARRESTEE OF ^SUSPECTS” form and obtained a signed waiver of those rights from defendant. Thereafter, Officer DeJong questioned defendant as to whether he had taken any drugs to which defendant responded he had taken some drugs earlier in the day. Officer DeJong did not recall what type of drugs defendant stated he had taken. However, both Officer DeJong and Detective Decker testified that defendant did not appear to be under the influence of any drugs at the time of his statements. Officer DeJong testified that defendant’s eyes were not blurry, and his speech was not slurred. Detective Decker testified defendant appeared cognizant of his surroundings and the procedures taking place.

In denying the motion to suppress the trial court stated the following:

The Court finds it rather interesting, bordering on remarkable how this Defendant’s memory of details leading up until the moment he begins his Statement is rather detailed, plain and straightforward. And yet, as if he had an out-of-body experience, he remembers nothing of the Statements he gave.
The Court rejects any notion that we have to accept, in the form of Judicial Note, the mere fact that someone inculpates himself, he must be out of his mind. We don’t accept that on that basis....

Based on the evidence in the record, we do not find the defendant’s intoxication was ■ sufficient to vitiate the voluntariness of his statements. Both officers testified that defendant did not show any signs of intoxication. Furthermore, the trial court apparently discounted defendant’s testimony concerning his level of intoxication. Therefore, the trial court did not err in denying defendant’s motion to suppress defendant’s statements on the basis of intoxication.

Defendant also contends that his statements were involuntary because investigating officers made promises to him in exchange for the statements. In the instant case, both Officer DeJong and Detective Decker testified that they informed defendant that if he cooperated, his cooperation would be forwarded to the district attorney’s office. However, the mere fact that a police officer tells a person in | scustody that prosecutors will be advised of any cooperation is not sufficient inducement to vitiate the free and voluntary nature of any statement. See, State v. Jackson, 414 So.2d 310, 312-313 (La.1982); State v. Matthews, 26,550 (La.App. 2 Cir. 12/21/94), 649 So.2d 1022, writ denied, 95-0435 (La.6/12/95), 655 So.2d 341; State v. Lions, 624 So.2d 436, 438 (La.App. 5 Cir.1993).

Accordingly, we find that the trial court did not err in denying the defendant’s motions to suppress statements on this basis. This assignment of error is without merit.

In the second assignment of error, the defendant asserts the district court erred in failing to suppress items that were not listed on the search warrant. Defendant argues that the trial court erred in not suppressing the warrant because the executing officer did not have personal knowledge of the investigation and, as a result, the issuing magistrate could not have had a reasonable belief in the validity of the warrant.

The State responds that the fact that information contained in the affidavit supporting the warrant is not completely based on personal knowledge of the affiant does not render the warrant invalid.

In order to be valid, “a search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.” La.C.Cr.P. art. 162. “Probable cause consists of facts and circumstances sufficient to support a reasonable belief that an offense has been committed and that evidence of the crime or contraband may be found at the place to be searched. These facts and circumstances must be within the affiant’s knowledge and based upon reasonably trustworthy information.” State v. Fedrick, 614 So.2d 723, 724 (La.App. 5 Cir.1993); State v. Boyd, 94-641 (La.App. 5 Cir. 12/28/94), 649 So.2d 80; State v. Bourg, 470 So.2d 291 (La.App. 5 Cir.1985), writ denied 475 So.2d 354 (La.1986).

In the instant case, Officer DeJong learned through his interview with defendant that Smith had given the gun used in the crimes to an individual named Byron who resided at 1308 Tupelo Street in New Orleans. Thereafter, Officer DeJong and Detective Decker sought the assistance of N.O.P.D. Detective Darrell Doucette in obtaining a search warrant in order to retrieve the handgun. On the search warrant application, Detective Doucette, the affiant, set forth the following facts:

Jefferson Parish investigators arrested defendant, who gave a taped statement in which he implicated himself in the crimes; defendant also informed investigators that the handgun used in the crimes was given to an individual named Byron located at 1308 Tupelo Street; and a computer search revealed that an individual by the name of Byron Green resided at that address.

The fact that the information contained in the affidavit supporting the application for the search warrant was not completely based on the personal knowledge of the attesting officer, but on what he had been told by others, is no bar to finding the warrant valid. State v. Duncan, 420 So.2d 1105, 1109 (La.1982). While Detective Doucette did not have personal knowledge of the information in the warrant application, he had been informed by Jefferson Parish investigators who had obtained the information directly from defendant via a taped statement. Additionally, as shown in the warrant application affidavit, Detective Doucette verified the information by conducting a computer search which indicated that an individual by the name of Byron Green resided at the 1308 Tupelo Street address.

Based on the foregoing, we find that Detective Doucette’s warrant application was based on trustworthy information and therefore, the trial court did not err in finding probable cause to support the warrant.

| ^Defendant also contends that the trial court erred in not suppressing items seized in the execution of the search warrant because the items were not listed in the search warrant and the gun was not found. The State responds that, although the items were not listed in the search warrant, they were properly seized because they were in “plain view.”

A search warrant should describe with particularity the items to be seized. La. Const, of 1974, art. I, § 5; La.C.Cr.P. art. 162. The warrant should be tested in a common sense and realistic manner without technical requirements of elaborate specificity. State v. Huffman, 419 So.2d 458 (La.1982); State v. Jackson, 97-1246 (La.App. 5 Cir. 4/13/98), 712 So.2d 934, 936, writ denied, 98-1454 (La.10/16/98), 726 So.2d 37. While in the course of executing a search warrant, a police officer may seize things, whether or not they are described in the warrant, which may constitute evidence tending to prove the commission of any offense, and perform all other acts pursuant to his duties. La. C.Cr.P. art. 165, State v. Tanner, 534 So.2d 535 (La.App. 5 Cir.1988); State v. Jackson, supra, 712 So.2d at 936. It is axiomatic that such a seizure is described in search and seizure terms as being based on the “plain view” doctrine. Jackson, supra, at 936; State v. Davis, supra.

In the instant case, Detective Doucette, along with members of the N.O.P.D., Officer DeJong, and Detective Decker, entered the home pursuant to a valid search warrant. Detective Doucette testified that, in the course of executing the search warrant, Officer DeJong informed him that several items located in the home had been taken from Hill’s vehicle. Therefore, the incriminating character of the items became immediately apparent to Detective Doucette, and, therefore, the items were properly seized. Additionally, the fact that the hand gun listed in the warrant was not found does not invalidate the warrant. See, Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72, 81 (1987). (Those items of evidence that emerge after the warrant is issued have no bearing on whether or not a warrant was validly issued).

Based on the foregoing, we find no error in the ruling of the trial court denying defendant’s motion to suppress evidence. This assignment is without merit.

In his final assignment of error, defendant argues the 198-year sentence was excessive in light of the fact that it was grossly disproportionate to the offense and nothing more than the needless imposition of pain. Defendant argues that imposing the maximum 198-year sentence is excessive in light of other sentences given to like defendants in similar cases.

The State responds that defendant failed to show an abuse of the discretion afforded to the trial judge in sentencing him within the legislatively set sentencing limits.

Defendant was found guilty of armed robbery in violation of La. R.S. 14:64 and was adjudicated a second felony offender. At the time of the commission of the present offense, the sentencing range for a second felony offender, with an underlying conviction for a violation of La. R.S. 14:64, armed robbery, punishable by imprisonment for not more than 198 years and not less than 49/6 years, without benefit of parole, probation, or suspension of sentence. La. R.S. 15:529.1(A)(l)(a). Defendant was sentenced to 198 years of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Therefore, defendant received the maximum sentence under the Habitual Offender Law.

The United States and Louisiana Constitutions both prohibit the imposition of excessive or cruel punishment. U.S. Const, amend. VIII; La. Const, art. I, § 20. Even a sentence within the prescribed statutory limit may violate a defendant’s constitutional right against excessive punishment. State v. Sweeney, 443 So.2d 522 (La.1983); State v. Jones, 98-1055 (La. App. 5 Cir. 2/23/99), 729 So.2d 95. In | ^reviewing a sentence for excessiveness, the appellate court must consider the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Daigle, 96-782 (La.App. 5 Cir. 1/28/97), 688 So.2d 158, 159, writ denied, 97-0597 (La.11/5/97), 700 So.2d 506.

Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Quebedeaux, 424 So.2d 1009 (La.1982), aff'd on remand, 446 So.2d 1210 (La.1984). However, the trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Jones, 98-1055 (La.App. 5 Cir. 2/23/99), 729 So.2d 95. This Court should further consider three factors in reviewing a judge’s sentencing discretion; 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Slang, 94-332 (La.App. 5 Cir. 11/16/94), 646 So.2d 1037, 1041.

In State v. Freeman, 00-238 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, writ denied, 00-3101 (La.10/5/01), 798 So.2d 963, a defendant received a 198-year sentence as a second felony offender convicted of armed robbery. The Third Circuit in upholding the sentence noted that defendant threatened to kill the grocery store manager while pointing a laser-sighted pistol at her. The court also noted the disabling psychological effect on the victim, which caused her to be unable to work. Also, in State v. Doleman, 02-0957 (La.App. 4 Cir. 12/4/02), 835 So.2d 850, the defendant, a second felony offender convicted of armed robbery, was sentenced to a 198-year term of imprisonment. In upholding the sentence, the Fourth Circuit noted that, during the robbery, defendant threatened to kill employees while holding a sawed off shotgun to the face of the store manager.

11sAs noted by the trial judge in his reasons for sentence at defendant’s original sentencing and similar to the cases in Freeman and Doleman, defendant used a dangerous weapon in the commission of the crime and repeatedly threatened to kill the victim, creating the risk of death and bodily harm. The trial judge additionally noted defendant’s lack of remorse for his crimes. Therefore, based on the facts in the instant case and factually similar cases in the case law, we do not find that defendant’s 198-year sentence is unconstitutionally excessive.

For the reasons discussed herein, we find no merit in defendant’s appeal and we affirm the convictions and sentences.

AFFIRMED.

      . A severance was granted and defendants were tried separately. This appeal only addresses defendant, Lionel Redditt's conviction.

      . Prior to the habitual offender hearing, the State submitted that the defendant could only be billed as a second felony offender because one of his prior convictions occurred after his arrest for the instant offenses.

      . During the investigation, the victim positively identified defendant and Prescott Smith after being shown a photographic lineup. Furthermore, defendant admitted to his involvement in his statements to Officer DeJong and Detective Decker.


source: Caselaw Access Project

author: I,KUHN, J.

license: Public Domain

text:
    Judge Mark D. PLAISANCE v. Mayor Leroy DAVIS, Mayor, City of Baker; Aristead Clayton, Treasurer; Julie Pittman, Finance Director; Phyllis Trisler, Personnel Director
    No. 2003 CA 0767.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2003.
    Writ Denied Feb. 13, 2004.

      John Olin Brown, Baker, Counsel for Plaintiff/Appellee Judge Mark D. Plai-sance.
    Winston G. Decuir, Sr., Baton Rouge, Counsel for Defendant/Appellant Mayor Leroy Davis.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.
   I,KUHN, J.

When the City of Baker (“the City”) failed to issue a paycheck to newly-elected City Court Judge Mark D. Plaisance, he filed this suit seeking an alternative writ of mandamus directing Leroy Davis, Mayor of the City, and those acting under his orders, to issue his paycheck or to show cause why the writ of mandamus should not be made peremptory. Mayor Davis had directed city officials not to issue the paycheck because Judge Plaisance had failed to submit to a substance-screening urinalysis and had declined to execute a personnel action form. Judge Plaisance maintained that because he was an elected official, he was not subject to the City’s Substance Abuse policies. He further maintained that he did not sign the personnel action form because it reflected an erroneous rate of pay, which was lower than the rate of pay set by the Baker City Council (“the Council”) pursuant to Ordinance 2002-21, the council’s budget ordinance for the fiscal year July 2002-June 2003. Initially, the trial court issued the alternative writ of mandamus. After May- or Davis failed to issue the paycheck within the time period provided in the mandamus order, the trial court held a hearing. Thereafter, the trial court signed a judgment ordering that the writ of mandamus be made peremptory. This judgment also ordered Mayor Davis to pay court costs and $5,000 in attorney’s fees. Mayor Davis has appealed, contesting the trial court’s judgment. Judge Plaisance has answered the appeal, seeking damages for a frivolous appeal. We affirm the trial court’s judgment and deny Judge Plai-sance’s answer to the appeal.

|,I. FACTUAL AND PROCEDURAL HISTORY

Before Judge Plaisance was elected to the position of city court judge, certain events took place that led to the current dispute regarding the amount of his salary. In May 2002, the mayor submitted to the Council a proposed budget addressing the fiscal year of July 2002-June 2003. This proposed budget included a pay plan that provided the City would pay the city court judge an annual salary of $15,792, the amount paid to the then incumbent city court judge, John Engelsman. On June 22, 2002, the council passed an amended budget, Ordinance 2002-21. One of the amendments made by the council increased the City’s portion of the city court judge’s pay to an annual salary of $25,000. The mayor vetoed the entire ordinance by letter dated June 19, 2002, and the council responded by overriding the mayor’s veto on June 21, 2002. Despite the override vote, the mayor instructed the City Treasurer and Finance Director to implement the budget that he had proposed rather than the budget passed by the council pursuant to Ordinance 2002-21. After July 1, 2002, the City continued to pay Judge Engelsman based on the $15,792 annual salary until the end of his term in December 2002. He never contested the matter.

Judge Plaisance was elected as city court judge on October 5, 2002, and began serving his term on January 1, 2003. On January 8, 2003, Judge Plaisance met with the City’s Director of Finance and Chief Accountant, Julie Pittman. [4 Judge Plai-sance filled out a W-4 form and other related personnel forms. By letter dated January 10, 2003, Mayor Davis and Phyllis Trisler, the City’s Personnel Director, informed Judge Plaisance that he was required to submit to a substance-screening urinalysis under the City’s Substance Abuse Policy. The letter further advised, “[A]ny applicant refusing to submit to substance testing shall be rejected for employment.” A few days later, Judge Plaisance replied by letter that he declined to submit to the substance-screening analysis. He advised that as a judge, he was guided by the Louisiana Supreme Court and Louisiana Judiciary Commission and was not subject to the personnel mandates of the City of Baker.

On or before January 15, 2003, Judge Plaisance received a Personnel Action Form, a data input form used by the City’s payroll and accounting departments for processing payroll checks. This form reflected his monthly pay would be $1,316 per month (calculated based on the $15,792 annual salary). Upon receiving this form, he wrote a January 15, 2003 letter to Trisler, advising her that the salary listed on the form was incorrect and that his monthly salary should be $2,083.33 based on Ordinance 2002-21. Because Mayor Davis instructed Pittman to follow the budget that he had prepared, Pittman processed a paycheck based on the lower salary figure. But she did not release the check to Judge Plaisance. She explained that Mayor Davis wanted the check withheld due to Judge Plaisance’s refusal to submit to the substance-screening analysis. Additionally, according to Aristead Clayton, the City’s Treasurer and Budget Director, the City never released payroll checks until a personnel action form was executed.

IsOn January 27, 2003, Judge Plaisance filed suit against Mayor Davis, Pittman and Trisler. He sought an alternative writ of mandamus directing Mayor Davis, and those acting under his orders, to issue and deliver his paycheck based on the rate of compensation set by the Council pursuant to Ordinance 2002-21, along with court costs and attorney fees, or to show cause why the writ should not be made peremptory.

On February 3, 2003, the defendants filed an answer. Therein, they pled dilatory exceptions raising the objections of prematurity and improper use of summary proceedings. They claimed: 1) the personnel action form must be signed and completed prior to the release of any paycheck; and 2) there was no ministerial duty to comply with Judge Plaisance’s request for the higher rate of salary because the ordinance on which he relied was invalid. In a letter of the same date, Mayor Davis conceded that the City’s Substance Abuse Screening policy was not applicable to Judge Plaisance, but Mayor Davis also advised that the salary dispute remained viable:

Upon executing the required City personnel action form ..., your paycheck as City Judge at the rate of $15,792 annually will be released to you. You may indicate on the personnel action form that you disagree with the salary rate. The dispute as to the rate will be an issue to be determined by the Court.

The trial court held a hearing, and then signed a February 5, 2003 judgment ordering: 1) the writ of mandamus was made peremptory; 2) Mayor Davis shall be deemed in contempt of court if Judge Plai-sance was not paid by noon on Thursday, February 6, 2003; 3) Judge Plaisance was not subject to any drug | ^screening or testing program; and 4) Mayor Davis was to pay attorney’s fees in the amount of $5,000 and all court costs. Mayor Davis has de-volutively appealed this judgment, urging the trial court erred in dismissing the exceptions and in granting the alternative writ of mandamus. He also claims the trial court erred in assessing costs and attorney’s fees against him. Judge Plai-sance has answered the appeal, claiming the appeal is frivolous and seeking sanctions.

II. ANALYSIS

A.Prematurity

Louisiana Code of Civil Procedure article 926 A(l) provides for the dilatory exception raising the objection of prematurity. Such an objection is intended to retard the progress of the action rather than to defeat it. La. C.C.P. arts. 923 and 926. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La. C.C.P. art. 423. Prematurity is determined by the facts existing at the time suit is filed. Houghton v. Out Lady of the Lake Hosp. Inc., 2003-0135, p.5 (La.App. 1st Cir.7/16/03), 859 So.2d 103. The objection of prematurity raises the issue of whether the judicial cause of action has yet come into existence because some prerequisite condition has not been fulfilled. Bridges v. Smith, 2001-2166, p.4 (La.App. 1st Cir.9/27/02), 832 So.2d 307, 310, unit denied, 2002-2951 (La.2/14/03), 836 So.2d 121. The objection contemplates that the action has occurred prior to some procedure or assigned time, and it is usually used in cases wherein the applicable law or contract has provided a procedure for one aggrieved of a decision to seek relief before resorting to judicial action. EOP New Orleans, L.L.C. v. Louisiana Tax Com’n, 2001-1452, p.4 (La.App. 1st Cir. 9/28/01), 809 So.2d 387, 390, writ denied, 2001-3278 (La.3/15/02), 811 So.2d 907.

In the present case, Mayor Davis argues that the suit is premature because Judge Plaisance filed the suit without first completing the personnel action form. Mayor Davis contends that if the form had been filled out, the City would have released a check to him for the amount of his salary that is undisputedly owed to him. Judge Plaisance argues that his failure to sign the form is a useless act that would only have served as acquiescence to an incorrect salary.

The parties’ arguments regarding the personnel action form are directed to the merits of the dispute rather than whether this action was actually a prerequisite to filing suit. Although the amount in dispute may have been different if Judge Plaisance had signed the personnel action form, Judge Plaisance’s cause of action arose when his first paycheck was withheld. The trial court properly overruled the exception raising the objection of prematurity.

B.Unauthorized Use of Summary Proceedings and Mandamus as a Remedy

Louisiana Code of Civil Procedure article 3781 provides that mandamus proceedings may be tried summarily. Louisiana Code of Civil Procedure article 2592 also states that summary proceedings may be used for trial or disposition of a mandamus proceeding.

The primary issue presented for our resolution is whether or not the trial court properly granted the extraordinary remedy of mandamus. A writ of mandamus may be issued in all cases where the law provides no relief by ordinary | Smeans or where the delay involved in obtaining ordinary relief may cause injustice. La. C.C.P. art. 3862. A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La. C.C.P. art. 3863.

In McCain v. Grant Parish Police Jury, 440 So.2d 1369 (La.App. 3d Cir.1983), the court found that a writ of mandamus was the only available avenue of relief for a district court seeking to compel a police jury to budget adequate funds for its operations. In reaching that conclusion, the McCain court found that the district courts in the state of Louisiana possess the inherent power to compel a legislative body, another of the co-equal branches of government, to budget the reasonably necessary expenses incurred to provide the basic needs of an efficient, effective court. This conclusion was based on the constitutional vesting of power in three “coordinate, independent, coequal and potentially coextensive” branches of government. McCain, 440 So.2d at 1371, citing 16 Am. Jur.2d Constitutional Law § 210 (1964) and referencing La. Const. Art. II, §§ 1 and 2. In the present case, we deal with that same separation of powers between the branches of government involved herein, the city court, the mayor, and the council.

The City Court of Baker was established by the legislature pursuant to the authority granted by Art. VII, § 51 of the Louisiana Constitution of 1921. Acts 1970, No. 424, § 1, codified in La. R.S. 13:2488.21, provided that the City Court of Baker was “ratified and confirmed, and is hereby declared to be established and to exist as provided in said home rule charter, subject to the provisions of the charter .... ” The City Court was retained pursuant to Art. V, § 15 of the 1974 Constitution. According to La. R.S. 13:1874, compensation for city judges is | generally derived from three sources, the state, the municipality or parish, and from civil fees. Additionally, La. R.S. 13:2488.27 B, addressing the Baker city court judge, establishes that the portion of the judge’s salary payable by the city “shall be as fixed by the city council until changed by the council, by ordinance.” (Underlining added.)

The Baker City Charter provides for a mayor-council form of government. Baker Code of Ordinances Sec. 1-02. The elected council constitutes the legislative branch of the government and is the governing authority of the City for purposes of legislation and policy making. Secs. 1-02 and 2-01. An elected mayor is the chief executive and administrative officer, who serves as the head of the executive branch. He is the executive officer of the City and supervises and directs the operations of all units of the city government. He is charged with the enforcement of applicable state law, the provisions of the City Charter and the ordinances of the City. Secs. 3-01 and 3-07.

Each year, the mayor is required to prepare and submit a proposed budget, including a pay plan and the operating and capital budgets, to the council. Sec. 3-07. The mayor shall submit his recommendations of the operating budget to the council by May fifteenth of each year. Sec. 6-03. The council is required to adopt a budget no later than June 15th, and if it fails to adopt a budget by that date, it shall be presumed to have adopted the budget submitted by the mayor. Sec. 6-04. Ordinances passed by the council must be dated and delivered to the office of the mayor no later than 24 hours after conclusion of the council meeting. Sec. 3-08. |in The mayor then has 10 days either to sign the ordinance or veto it. Id. All ordinances vetoed by the mayor shall become law when again passed by the council by an affirmative vote of two-thirds of the membership of the council. Sec. 2-24.

The mayor also directs, controls and supervises the administrative branch of the government. Sec. 4-01. The mayor “shall execute the policy direction of the council and shall be responsible for the enforcement of the law.” Id. The department of finance is included within the administrative branch. Sec. 4-03. The finance director is the head of the finance department and must “administer the execution of the capital and operating budgets of the city [and] prepare and issue all checks .... ” Sec. 4-10. The treasurer of the city also serves within the department of finance. Sec. 4-11. The treasurer “shall maintain the treasury of the city” and “shall countersign all expenditures or disbursements of the city funds.”

Sec 6-02 of the Code of Ordinances further provides, “The operating budget form shall be a modified lump sum budget of expenditures and a detailed budget form of revenues. The operating budget shall be supplemented by a detailed schedule of personnel and a detail of such other budget classifications as the mayor deems advisable.” Based on the language of Section 6-02, Mayor Davis asserts that the Council is prohibited from increasing the salary of the city court judge pursuant to the general ordinance that sets forth the operating budget. He argues that the operating budget is submitted in lump sum form and that the council is not permitted to change one individual salary by revising the operating budget ordinance. He contends that the council could only achieve this result by 11T enacting an ordinance specifically addressing the salary of the city court judge. In effect, Mayor Davis challenges the validity of Ordinance 2002-21.

Responding to that argument, Judge Plaisance asserts that Mayor Davis cannot raise the validity of the budget ordinance as a defense to a mandamus proceeding. He urges that if Mayor Davis believes the council improperly or illegally adopted a budget, he must institute a separate legal action to test the validity of the budget ordinance. Until such time that the matter is judicially determined, Judge Plaisance submits that Davis must perform his duty as mayor, including the duty of implementing the budget ordinance passed by the council pursuant to Ordinance 2002-21. We find merit in this argument.

In mandamus proceedings against a public officer involving the performance of official duty, nothing can be inquired into but the question of duty on the face of the statute and the ministerial character of the duty he is charged to perform. State ex tel. New Orleans Canal & Banking Co. v. Heard, 47 La.Ann. 1679, 1696, 18 So. 746, 752 (1895). Public officers have no right to challenge a statute’s validity in a mandamus proceeding. See Dore v. A.P. Tugwell, 228 La. 807, 84 So.2d 199, 202 (1955) and State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La. Ann. at 1696, 18 So. at 752. This doctrine is founded in the basic tenet that, because legislative acts are entitled to great respect and are presumptively constitutional, it would be inimical to public policy to allow a party without interest in a statute, and who is not injuriously affected by its enforcement, to assail its validity. Smith v. Flournoy, 238 La. 432, 443, 115 So.2d 809, 812 (1959). The Heard analysis of this general doctrine demonstrates its merit:

Laws are presumed to be, and must be treated and acted upon by subordinate executive functionaries as, constitutional and legal, until 112their unconstitutionality or illegality has been judicially established; for in a well-regulated government obedience to its laws by executive officers is absolutely essential and of paramount importance. Were it not so, the most inextricable confusion would inevitably result, and ‘produce such collision in the administration of public affairs as to materially impede the proper and necessary operations of government.’ It was surely never intended that an executive functionary should nullify a law by neglecting or refusing to execute it.’

State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La. Ann. at 1696, 18 So. at 752.

As the chief executive officer of the City of Baker, Mayor Davis must execute the ordinances as passed by the City Council. By submitting a proposed budget ordinance, the mayor may initially influence the ordinance later passed by the council. But he does not have the authority to actually create the budget ordinance, and thus does not have authority to control the outcome of the council’s proceedings. The Council is vested with the power to create laws in the form of ordinances for the city. Once the council passes a budget ordinance, the mayor’s power is limited to enforcing the ordinance. Accordingly, he must enforce Ordinance 2002-21 by implementing the provisions of the council’s budget rather than the budget that he presented to the council. This separation of powers provided for in the city charter is designed to ensure an orderly process in the operations of the city government. Recognizing this, we conclude that Mayor Davis cannot raise the invalidity of Ordinance 2002-21 as a defense in this mandamus proceeding.

We conclude the Mayor was obligated to compensate Judge Plaisance in accordance with Ordinance 2002-21. Also see Louisiana Attorney General Opinion No. 03-0265 (July 30, 2003). Because Mayor Davis failed to comply l13with the terms of the City Charter and with the mandate of La. R.S. 13:2488.27 that the city court judge’s salary shall be fixed by the Council, we find that Judge Plaisance’s only available avenue of relief in this case was by mandamus proceeding.

Mayor Davis also argues that the City was not obligated to compensate Judge Plaisance because he had failed to fill out the Personnel Action Form required by the City for processing a paycheck. We do not find that the absence of this completed form merits the mayor’s dereliction of his ministerial duties. Although Judge Plaisance had refused to sign the form because it contained improper salary information, Pittman testified that the City had Judge Plaisance’s social security number and address and knew that his term of office had begun on January 1, 2002. She also testified that the City’s Accounting Department had issued an employee number to Judge Plaisance and that a payroll check had already been generated for Judge Plaisance. Accordingly, we find that the City had the requisite information needed to process Judge Plaisance’s paycheck and that he was not required to execute a document containing improper information in order to receive his paycheck.

Thus, we find no error in the trial court’s judgment ordering that the writ of mandamus be made peremptory. Having found that the writ of mandamus was properly issued, it necessarily follows that the defendant’s dilatory exception to the unauthorized use of summary proceedings is without merit. Jimmy Davis, Inc. v. Downey, 440 So.2d 916, 919 (La.App. 2d Cir.1983). The trial court properly overruled the exception challenging the use of a summary proceeding.

|14C. Attorney’s Fees

Mayor Davis challenges the trial court’s award of attorney’s fees to Judge Plai-sanee. We find the award was proper based on the holding of Perron v. Evangeline Parish Police Jury, 2001-0603 (La.10/16/01), 798 So.2d 67.

In Perron, a coroner filed a mandamus action to compel a parish police jury to provide proper funding for his office. The Supreme Court addressed whether the coroner was entitled to recover attorney’s fees incurred in the filing and prosecution of the action. The supreme court held that the coroner was entitled to collect reasonable attorney’s fees because those expenses were necessary expenses pursuant to La. R.S. 33:1556(B)(1), incident to the operation and functioning of the coroner’s office and payable by the police jury. In finding that the attorneys’ fees were recoverable under this statute addressing fees for coroner’s services, the Supreme Court stated:

[T]his is not a run-of-the-mill legal contest in which a successful plaintiff is seeking recovery from his opponent of legal costs and lawyers’ fees for resorting to litigation to enforce given legal rights. Rather, it is a substantive claim to compel this governing authority, having an obligation to fund a state officer, to appropriate or provide funding for a legal contest that bears upon the officer’s very right to perform his mission in a reasonably effective manner.

Perron v. Evangeline Parish Police Jury, 2001-0603 at p.10, 798 So.2d at 74.

The City of Baker is obligated to pay an annual salary to the city court judge (La. R.S. 13:1874) and must also bear the expenses of operation and maintenance of the court (La. R.S. 13:1889). Because Judge Plaisance’s claim is one to compel Mayor Davis, as the executive officer of the City, to properly fund his position, the City is also required to fund the legal contest that has resulted due to the May- or’s hsfailure to perform his ministerial duties. Accordingly, we find no error in the trial court’s award of attorney’s fees.

D. Frivolous Appeal

Judge Plaisance has answered the appeal seeking damages for frivolous appeal pursuant to La. C.C.P. art. 2164. In order to assess such damages, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Cortes v. Lynch, 2002-1498, p.14 (La.App. 1st Cir.5/9/03), 846 So.2d 945, 954. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Id. Although we have determined that this appeal does not have merit, we cannot say that Mayor Davis’s counsel did not seriously believe the position he advocated. Apparently, he believed this was the proper forum for challenging the validity of the budget ordinance. Therefore, damages for frivolous appeal are not warranted, and we deny the relief requested in Judge Plaisance’s answer to appeal.

III. CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Appeal costs in the amount of $1,724.78 are assessed against Leroy Davis in his capacity as Mayor of the City of Baker.

AFFIRMED; ANSWER TO APPEAL DENIED.

      . Ordinance 2002-21 was entitled "An Ordinance Adopting the Annual General Fund and Minor Fund Budgets of Revenues and Expenditures ... Together with Amendments Titled Plan A: General Fund Revenues & Expenditures ...."

      . This amount represents only the portion of the city court judge’s salary that is payable by the City of Baker and is not the total compensation received. Other compensation is derived from the state and from civil fees. La. R.S. 13:1874.

      . Clayton was also named as a defendant but was dismissed from the suit prior to the show cause hearing regarding the mandamus.

      . Although the trial court's judgment did not expressly deny the exceptions, the judgment's silence in this regard is equivalent to a denial of the exceptions. Five N Company, L.L.C. v. Stewart, 2002-0181, p.13 (La.App. 1st Cir.7/2/03), 850 So.2d 51, 59.

      . Although the Code of Ordinances was not introduced into evidence, we take judicial notice of its provisions pursuant to La. C.E. art. 202 B(l)(c).


author: J^MCCLENDON, J. 11 FITZSIMMONS, Judge, 11 KLINE, J.,

text:
    Todd A. INZINNA v. Cory T. WALCOTT and Allstate Insurance Company.
    No. 2002 CA 0582.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 2003.

      Ron S. Macaluso, Hammond, for Plaintiff/Appellee Todd A. Inzinna.
    Craig J. Fontenot, Baton Rouge, for Defendant/Appellant Allstate Insurance Company.
    E. Kelleher Simon, Covington, for Defendant/Appellee Cory T. Walcott.
    Before: FOIL, FITZSIMMONS, KUHN, MCCLENDON, and KLINE, J.J.

      . The Honorable William F. Kline Jr. is serving pro tempore by special appointment of the Louisiana Supreme Court.

   J^MCCLENDON, J.

This is an appeal of a judgment rendered in favor of a plaintiff, who suffered injuries in a fight in a bar, against an insurer, who asserts a lack of liability under a policy exclusion for the intentional acts of the insured/defendant. For the reasons that follow, we amend and affirm.

FACTS AND PROCEDURAL HISTORY

On August 19, 1994, the alleged tortfea-sor, Cory Walcott, and his date, Sarah Beaver, were sitting at a table with Lindsey Blalock and Brian Bucker at the Extra Innings Lounge in Hammond, Louisiana. The plaintiff, Todd Inzinna, was also at the lounge with friends. Thinking he knew Ms. Beaver and Ms. Blalock, Mr. Inzinna sent drinks to them. The bartender delivering the drinks identified Mr. Inzinna as the person who sent the drinks to the table.

Later Mr. Walcott left to go to the restroom and upon returning, he saw Mr. Inzinna standing at the table, talking to Ms. Beaver and Ms. Blalock. Mr. Bucker was no longer at the table. Mr. Inzinna was standing where Mr. Walcott had previously been sitting, leaning with his full weight on the table. Upon reaching the table, Mr. Walcott slid the chair, in which he had been sitting, away from Mr. Inzin-na, with the intention of sitting in the chair himself. Unaware that the chair had been moved, Mr. Inzinna attempted to sit down and fell to the floor. Mr. Inzinna allegedly got up from the floor, approaching Mr. Walcott in an aggressive manner, and shoved Mr. Walcott, who then punched Mr. Inzinna in the face. Lounge employees and other patrons broke up the scuffle. Mr. Walcott immediately left the building, followed by Mr. Inzinna, and a second altercation occurred in the parking lot.

On June 14, 1995, Mr. Inzinna filed suit against Mr. Walcott and his insurer, Allstate Insurance Company (Allstate), for his injuries, which included a dislocated shoulder, a broken nose, and a chipped tooth. After a January 2001 bench trial, the 13trial court rendered judgment awarding Mr. Inzinna $26,794.25 against Mr. Walcott and Allstate for damages associated with Mr. Inzinna’s shoulder, finding that Mr. Walcott negligently caused Mr. Inzinna’s shoulder injury. Also, the trial court awarded Mr. Inzinna $21,027.95, solely against Mr. Walcott, for damages associated with Mr. Inzinna’s broken nose and chipped tooth, finding Mr. Walcott intentionally caused these injuries by punching Mr. Inzinna in the face. The trial court initially concluded that Allstate was not liable for Mr. Inzinna’s facial injuries, based on the intentional acts exclusion in the Allstate policy.

Subsequently, Mr. Walcott filed a motion for new trial, arguing the trial court erred in finding him solely liable for Mr. Inzinna’s facial injuries. After a hearing, the trial court granted the motion and signed a second judgment casting both Mr. Walcott and Allstate liable for the entirety of Mr. Inzinna’s damages, combining the $26,794.25 and $21,027.95 awards into one $47,822.20 award.

Allstate appealed from the second judgment, and on appeal presents the following issues for review:

I. Whether or not the trial court erred in finding that Allstate’s Criminal and Intentional Acts Exclusion did not apply to the alleged criminal and intentional acts of Allstate’s insured, Cory Walcott, for the [barroom] brawl which took place on August 19,1994?
II. Whether or not the trial court manifestly erred in finding that Todd Inzinna injured his shoulder inside of the Extra Innings bar when all of the credible and verified evidence presented at trial, which was supported by the version of events presented by Todd Inzinna, indicated that Todd Inzinna injured his shoulder while throwing a punch at Cory Walcott in the parking lot of the Extra Innings bar?
III. Whether or not the trial court erred in awarding damages to Todd Inzinna for his shoulder injury when he injured his shoulder outside in the parking lot while attempting to throw a punch at Cory Walcott at a time when Todd Inzinna was the aggressor and had consented to the altercation?
|4IV. Whether or not the trial court manifestly erred in finding Cory Walcott negligent for moving a chair that he was sitting in when there was no evidence presented that Cory Walcott had any reasonable expectation that Todd Inzinna was about to attempt to sit down in Mr. Walcott’s chair?
V. When the trial court specifically found that Todd Inzinna made the first aggressive act in the form of a push, did the trial court manifestly err in not finding that the defense of consent was a complete defense to battery, or alternatively, assess some comparative fault on behalf of Todd Inzinna for instigating the altercation?

SHOULDER INJURY AWARD

(Assignments of Error II and III)

On appeal, Allstate claims the trial court committed manifest error in finding Mr. Inzinna’s shoulder injury was sustained during the altercation inside the bar, rather than later in the parking lot. Allstate claims this conclusion by the trial court was “not supported by a scintilla of credible evidence at trial.” We do not agree.

In reviewing a trial court judgment, an appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). To reverse a factual determination, the appellate court must find that a reasonable factual basis for the finding of the trial court does not exist in the record and that the record establishes that the finding is clearly wrong or manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d at 844; Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

Various testimony was given by several witnesses as to the facts surrounding Mr. Inzinna’s shoulder injury and causation of said injury. However, Mr. Inzinna testified that he only attempted to throw a punch outside in the parking lot, but realized as he began to do so that he could not. Mr. Inzinna maintained that he injured his shoulder during the scuffle inside the bar. No testimony or evidence | Swas presented which would definitively exclude the shoulder injury occurring inside the bar.

When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfin-der can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d at 844. In the instant case, the trial court obviously believed that Mr. Inzinna injured his shoulder inside the bar. Thus, we are unable to say the resolution of this issue, which was based on the credibility determination of the lower court, was manifestly erroneous. Under these circumstances, we cannot substitute our judgment for that of the trier of fact. Etcher v. Neumann, 2000-2282, p. 9 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 835, writ denied, 2002-0905 (La.5/31/02), 817 So.2d 105.

NEGLIGENCE ATTRIBUTED TO REMOVAL OF CHAIR

(Assignment of Error IV)

Allstate further contends that no evidence was presented at trial to establish Mr. Walcott’s action in moving the chair away from Mr. Inzinna constituted negligence.

Mr. Inzinna testified that he had just walked up to the table and said, “Hello,” to the girls sitting there, when he began to sit down. Mr. Inzinna related that before any further words could be exchanged, the chair was yanked from beneath him and he fell to the floor.

Mr. Walcott stated that when he returned from the restroom, Mr. Inzinna was standing in front of the chair where Mr. Walcott had been previously seated. Mr. Walcott maintained that he did not think Mr. Inzinna was going to sit in the | (¡chair before he slid it over, as Mr. Inzinna was leaning his full weight on the table. Mr. Walcott testified that he pulled the chair to the side without speaking to anyone at the table and a couple of seconds later, Mr. Inzinna grabbed for the chair and fell.

One reasonable interpretation of the testimony presented to the trial court is that Mr. Walcott slid the chair around to sit in it, not knowing that Mr. Inzinna intended to sit down. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, we are unable to say the trial court’s finding of negligence on this issue was in error.

ALLSTATE’S INTENTIONAL ACTS EXCLUSION

(Assignment of Error I)

Allstate contends the trial court erred in concluding Mr. Walcott’s acts were negligent rather than intentional. Claiming that “no punch can be negligently thrown at another person’s face,” Allstate argues that Mr. Inzinna’s injuries from the punch were caused by intentional acts and are excluded from coverage under the Allstate policy, which provided, in pertinent part, as follows:

We do not cover any bodily injury ... intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any injured person. This exclusion applies even if ... such bodily injury ... is or a different kind or degree than intended or reasonably expected[.] [Emphasis original.]

The insurer has the burden of proving that a policy exclusion precludes recovery. Williams v. City of Baton Rouge, 98-2024, p. 19 (La.4/13/99), 731 So.2d 240, 253; Collins v. Randall, 2002-0209, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 352, 354. Moreover, exclusions must be narrowly construed and any ambiguity should be construed in favor of coverage. Williams v. City of Baton Rouge, 98-2024 at p. 19, 731 So.2d at 253, citing Breland v. Schilling, 550 So.2d 609, 610-11 (La.1989). Therefore, we must examine whether the insurer has | established that the intentional act exclusion in its policy applied to the facts of this case.

An injury is intentional, i.e., the product of an intentional act, only when the person who acts either consciously desires a physical consequence from his act, whatever the likelihood of that result happening from his conduct, or knows that the a physical consequence is substantially certain to follow from his conduct, whatever his desire may be as to the result. See Young v. Brown, 37,053, p. 4 (La.App. 2 Cir. 4/9/03), 846 So.2d 88, 90, citing Bazley v. Tortorich, 397 So.2d 475, 481 (La.1981).

Undoubtedly, a punch in the face, viewed in isolation, is usually considered “intentional.” However, under the facts of this case, we believe that it was Mr. Wal-cott’s negligent reaction which resulted in the facial injuries to Mr. Inzinna. The entire sequence of events unfolded with great rapidity: the chair was moved; Mr. Inzinna fell; Mr. Inzinna quickly picked himself up from the floor, shoving Mr. Walcott in the process; and Mr. Walcott punched Mr. Inzinna, perceiving himself under attack. This entire scenario played out in a matter of seconds. The brevity of the interaction is an important factor when considering the consciousness of the act.

A punch in and of itself is not conclusive evidence that an intentional acts exclusion applies. Likewise, acting in self-defense does not automatically negate the application of an intentional acts exclusion. See Sperli v. Guiterrez, 2000-1089, p. 4 (La.App. 5 Cir. 10/18/00), 772 So.2d 805, 807; Hewitt v. Allstate Insurance Company, 98-0221, p. 6 (La.App. 4 Cir. 1/27/99), 726 So.2d 1120, 1123.

The subjective intent of the insured is the critical issue in determining whether an intentional acts exclusion applies. Further, this subjective intent is a factual determination that is the particular province of the trier of fact.

|sThe concept of intent requires a thought process, resulting in the resolution to commit a particular act. In the instant case, Mr. Walcott had no opportunity for reflection and acted spontaneously and instinctively to a sudden physical encounter, without time to form the requisite intent to commit a specific act. In considering these facts, we recognize that the instinct of self-preservation is primordial.

Since the issue of intent is a fact-intensive issue, particularly in a barroom encounter, the trial court’s determination must be given great weight. It is the totality of the circumstances that determines subjective intent rather than any one factor; therefore, individual circumstances must be examined on a case-by-case basis.

In this case, no verbal threat preceded the punch, nor was there any evidence of any previous encounters between the parties prior to this incident. It was never established that Mr. Walcott formed the intent to strike Mr. Inzinna before the punch was thrown. In describing the incident, Mr. Walcott testified that Mr. Inzin-na shoved him in an aggressive manner, and he responded with a “jab.” Mr. Wal-cott stated that he did not “rare (sic) back” and that he did not intend any of these events to occur. Consequently, we find that under the particular circumstances of this case, Allstate did not meet its burden of proving that the exclusion in its policy for intentional acts applied to the facts of this case. Further, we cannot substitute our judgment for that of the trial court when, as in this case, the ruling is based on a reasonable interpretation of the evidence presented to the lower court. Hence, we are unable to say the trial court erred in finding coverage for the plaintiffs injuries, and in rejecting Allstate’s assertion of the applicability of its intentional acts exclusion.

| NEGLIGENCE OF PLAINTIFF

(Assignment of Error V)

In its remaining assignment of error, Allstate seeks to have a percentage of fault assessed to Mr. Inzinna, based on the trial court’s finding that Mr. Inzinna shoved Mr. Walcott as he got up from the floor. With respect to Mr. Inzinna’s actions, the trial court found that Mr. Inzin-na “assumed he was the subject of a prank ... and asked if anyone thought his falling was funny,” and that as he got up “he pushed” Mr. Walcott. Nevertheless, no fault was assigned to Mr. Inzinna.

Since the trial court decision was issued prior to the rendition of the supreme court’s opinion in Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943, it was without benefit of the supreme court’s rejection of the aggressor doctrine, as being inconsistent with Louisiana’s pure comparative fault regime. See Landry v. Bellanger, 2002-1443 at p. 18, 851 So.2d at 956. In Landry, the supreme court interpreted LSA-C.C. art. 2323 as requiring a comparative fault assessment of both a plaintiffs and a defendant’s negligence where the acts of both parties are negligent or the acts of both parties are intentional. Id.

It is only where a plaintiff is negligent in contributing to his injuries and the defendant has committed an intentional act, that assessment of the comparative fault of the plaintiff is prohibited under LSA-C.C. art. 2323, paragraph (C). See Landry v. Bellanger, 2002-1443 at p. 18, 851 So.2d at 956. Otherwise, the supreme court stated that absent a qualifying privilege, any provocative or aggressive conduct on the part of the plaintiff should be incorporated into the allocation of fault by the trier of fact. Landry v. Bellanger, 2002-1443 at p. 16, 851 So.2d at 955.

Because we find, in the instant case, that both the plaintiff and the defendant were negligent, a percentage of fault should have been assigned to each. After a thorough review of the 'evidence presented, we find that the plaintiffs fault was|in10% and that of 'the defendant was 90%. We amend the judgment in favor of plaintiff to 'so reflect!

CONCLUSION

For the reasons assigned, the judgment of the trial court is amended to find the comparative fault of Todd A. Inzinna to be 10% and the comparative fault of Cory T. Walcott to be 90%, and as amended, the judgment is affirmed. Each' party is to bear his own costs of this appeal. ■

AMENDED; AFFIRMED AS AMENDED.

KLINE, J., concurs in part and dissents in part.

FITZSIMMONS, J., concurs and assigns reasons.

KUHN, J., concurs for the reasons assigned by FITZSIMMONS.

FOIL, J., dissents and would reverse the trial court.

11 FITZSIMMONS, Judge,

agreeing, with additional reasons.

Under the facts of this case, branding a reaction as an intentional act, or “intent,” is problematic. Some things are perceived intentional because of our view that throwing a punch involves predisposition. However, given the continuum of time and space in this particular case, I agree that the punch was instinctive and reactive: not intentional. Fear is often a motivator that is not rational, and thus has the possibility of precluding formulated intent. At some stage, courts must re-evaluate the idea of what some unattainable ideal person, called the “ordinary reasonable man,” should do, and look at the real totality of the circumstances. Connecting the concept of intent to the mere throwing of a punch prematurely implies formulation of what is sought to be proven: intent. Espousing such a connexity fails to recognize that, of its very nature every “value,” and in this case the value ascribed to the concept of intent, is subject to challenge. Thus, I respectfully assign additional reasons.

11 KLINE, J.,

Concurring in Part; Dissenting in Part.

I respectfully concur, in part, and dissent, in part, from the majority opinion.

A significant inquiry in this cause is the mindset of the defendant, Mr. Walcott, and the plaintiff, Mr. Inzinna. Whether the defendant’s acts were negligent or intentional determines the liability of his insured, Allstate. Comparative fault must also be addressed in each of these harms.

The characterization of the acts of the parties must be examined under the following circumstances, to wit:

(1) The confrontation between plaintiff and defendant occurred at the Extra Innings Lounge, a barroom.

(2) There had been, to some extent, consumption of alcoholic beverages by the parties.

(3)The plaintiff, Mr. Inzinna, at least to the defendant, Mr. Walcott, was a social intruder and an unwelcome guest at the table.

I can concur, in part, with the trial court and with the majority in finding the action of Mr. Walcott, in moving the chair, was negligent. Although I may not have so determined, I am mindful that where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous. However, I would attribute 50% of | ¡¡the fault to Mr. Inzinna, whose attention was directed to the ladies at the table and not to his surroundings, including the availability of the chair. I can further agree with the trial court and majority that the shoulder injury occurred during the fall, because it is one of two permissible views of the evidence.

The subsequent confrontation occurred after Mr. Inzinna got up and was punched by Mr. Walcott. However, the facts can support that Mr. Inzinna confronted, assaulted, and pushed Mr. Walcott and then was battered and received facial injuries. I find these are intentional acts by both parties and would assess comparative fault at 50% to each. The insurer, thus, is not liable for damage as a result of this intentional battery by Mr. Walcott.

For these reasons, I concur, in part, and dissent, in part.

      . Allstate also appealed from the first judgment, but this court dismissed the appeal noting that the first judgment had been superseded by the second judgment rendered pursuant to Mr. Walcott’s motion for new trial. Inzinua v. Walcott, 2001-1994 (La.App. 1 Cir. 11/19/01) (unpublished).

      . Having found no error in the trial court's finding that Mr. Inzinna’s shoulder injury occurred inside the bar, we find it unnecessary to address Allstate's argument that Mr. Inzin-na's actions in the parking lot were totally unprovoked and that therefore he should be held 100% at fault for any injuries incurred in the parking lot.

      . See Landry v. Bellanger, 2002-1443 (La.5/20/03), 851 So.2d 943.


author: J^FOIL, J. | FITZSIMMONS, J.,

text:
    Marion TALBERT and Linda P. Talbert v. LOUISIANA STATE BOARD OF NURSING, et al.
    No. 2003 CA 0258.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.
    Jerald N. Jones, Shreveport, for Appellants Plaintiffs Marion and Linda Talbert.
    Sheri M. Morris, Baton Rouge, for Ap-pellee Defendant Louisiana State Board of Nursing.
    Charles W. Schmidt, III, New Orleans, for The Center For Families.
    Panel composed of Judges FRANK FOIL BRADY M. FITZSIMMONS and EDWARD J. GAIDRY.
   J^FOIL, J.

This appeal challenges the dismissal of a lawsuit seeking monetary damages from the Louisiana State Board of Nursing arising out of the Board’s suspension of a nurse’s license. We affirm.

BACKGROUND

On March 21, 2002, Marion and Linda Talbert filed this lawsuit against the Louisiana State Board of Nursing (Board) seeking tort- damages allegedly resulting from the Board’s summary suspension of Linda Talbert’s nursing license. In the petition, the Talberts made the following allegations: Mrs. Talbert had been subjected to a series of consent orders into which she entered with the Board following her admission of prior drug abuse when she applied to begin nursing clinical courses. The consent orders required Mrs. Talbert to submit to random drug screens. On March 21, 2001, Mrs. Talbert was instructed to provide a urine sample for drug testing. On April 4, 2001, Mrs. Talbert was notified by the Board that it was suspending her license because she violated the terms of the 2000 Consent Order by submitting a random drug screen which the laboratory determined was not consistent with normal human urine. Mrs. Talbert followed the Board’s appeal procedure and appeared at a settlement meeting on May 15, 2001, at which time she refused an offer to lift the suspension with certain conditions, submitting her own counteroffer, which was rejected. Mrs. Talbert later appealed to the full board and a hearing was scheduled for September 11, 2001. On that date, without a hearing, the Board agreed to lift the suspension.

In their petition, the Talberts alleged that the Board maliciously and unreasonably failed to conduct tests and follow procedures necessary to protect Mrs. Tal-bert’s rights. Specifically, they alleged that: (1) the urine ^specimen test result did not reveal any violation of the Consent Order and Mrs. Talbert’s license was maliciously, unreasonably and wrongfully suspended; (2) Mrs. Talbert was not adequately notified of the basis for the disciplinary proceedings against her in violation of her constitutional right of due process; (3) the standards utilized on by the Board in suspending the license were not adopted pursuant to proper administrative procedures and were unenforceable; (4) the Board knew or should have known that the standards it relied on to suspend the license were not in effect and unenforceable; (5) the drug testing procedures applied to Mrs. Talbert by the Board violated the Louisiana Drug Testing Act as well as Mrs. Talbert’s rights to equal protection, due process and privacy; and (6) the Talberts were damaged by the Board’s “failure to decide” and its failure to give its staff proper direction in the area of its drug testing program.

The Talberts urged that they were entitled to damages resulting from the Board’s summary suspension of Mrs. Talbert’s license, including lost wages, lost sick leave, lost 401 K contributions, mental anguish, defamation of character, loss of enjoyment of life and loss of consortium.

The Board filed an exception of no cause of action, urging that the 2000 Consent Order and the Board’s rules gave it the authority to summarily suspend Mrs. Tal-bert’s license. Further, it asserted that the petition alleged acts it performed for which it was entitled to quasi-judicial immunity.

The trial judge granted the exception of no cause of action, finding in oral reasons for judgment that the 2000 Consent Order authorized the Board’s action. This appeal, taken by the Talberts, followed.

DISCUSSION

The Talberts insist that the Board failed to demonstrate that the petition alleged no facts under which they enjoy a remedy in law. They submit that the trial judge erred in finding that the Consent Order authorized the Board’s actions, contending that Mrs. Talbert did not waive her rights to |4seek redress for damages she suffered at the hands of the Board by entering into the agreement.

The Board urges that it is entitled to immunity from any alleged damages resulting from its automatic suspension of Mrs. Talbert’s license, and therefore, contends that the trial judge correctly maintained its exception of no cause of action. We agree.

Because many administrative boards and commissions have a quasi-judicial function when they adjudicate matters like licenses, it has become common for courts to recognize quasi-judicial immunity, equivalent to judicial immunity, for such boards and commissions, and their individual members, for actions taken and decisions made in their adjudicative role. Durousseau v. Louisiana State Racing Commission, 98-0442, p. 4 (La.App. 4 Cir. 12/9/98), 724 So.2d 844, 846, writ denied, 99-0034 (La.2/12/99), 738 So.2d 582.

In suspending Mrs. Talbert’s license upon finding she violated the terms of the Consent Order, the Board was acting in its administrative adjudicatory capacity. The Board is vested by statute with broad authority over matters pertaining to licensing of nurses. La. R.S. 37:918 et seq. Extending quasi-judicial immunity to the Board’s administrative adjudicatory decisions preserves the independence of judgment of the adjudicators by foreclosing any possibility of intimidation or deterrence through the threat or actuality of suits for damages. See Durousseau v. Louisiana State Racing Commission, 98-327 at p. 6, 724 So.2d 847.

For these reasons, we hold that the Board has quasi-judicial absolute immunity as to claims for money damages based upon a wrongful administrative adjudication. As all of the allegations of the petition that pertain to the Board are based on its alleged wrongful suspension of Mrs. Talbert’s license, the Board is entitled to immunity from this lawsuit, and the trial court correctly granted the Board’s exception of no cause of action.

| .CONCLUSION

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellants. The case is remanded to the trial court for proceedings consistent with this opinion.

AFFIRMED AND REMANDED.

FITZSIMMONS, Judge, dissents and assigns reasons.

| FITZSIMMONS, J.,

dissenting with reasons.

I respectfully dissent from the majority’s determination that the quasi-judicial immunity of the Louisiana State Board of Nursing entitles it to “absolute immunity as to claims for money damages based upon a wrongful administrative adjudication.” Louisiana Revised Statute 37:931 states in part:

B. There shall be no liability on the part of and no action for damages against any member of the board, its officers, employees, agents, or representatives for any action undertaken or performed by such individual within the scope of the duties, powers, and functions of the board when acting without malice and in the reasonable belief that the action taken is within the board’s and such individual’s authority. (Emphasis supplied.)

Mrs. Talbert alleged that her license was maliciously, unreasonably and wrongfully suspended, and in violation of due process. The causes of action are against the Board, rather than against the individual members of the Board. Among other damages, Mrs. Talbert seeks restitution of lost wages, lost sick leave, and lost 401 K contributions.

Any immunity of the Board as a result of its actions is limited by the express conditions of the absence of malice and the reasonableness of its belief. See Quina v. Orleans Parish School Board, 224 So.2d 835, 840 (La.App. 4th Cir.1969). Although Mrs. Talbert may experience an uphill battle in her attempt to demonstrate the existence of malice or lack of reasonableness on the part of the Board, these causes of action against the Board remain statutorily authorized. \9i Thus, the procedural vehicle of an exception based on an objection of no cause of action is not apposite to the allegations of malice and lack of reasonableness brought in the petition.

Additionally, Mrs. Talbert is correct in her assertion that she should have been granted the opportunity to amend the petition if the grounds of the objection pleaded by the peremptory exception may be removed by such amendment.

It is for these reasons that I dissent.

      . The Talberts also sued American Medical Labs, Inc., Professional Recovery Network and The Center for Families. On August 14, 2002, American Medical Labs was dismissed from the lawsuit.


author: | .KUHN, J.

text:
    John R. SEIVERS and Juanita L. Seivers v. EPOCH WELL LOGGING, INC., Baroid Drilling Fluids, Inc., Spirit Energy 76 Inc., R & B Falcon Drilling USA, Inc., a/k/a Falcon Inland, Inc., a/k/a R & R Falcon Inland, Inc.
    No. 2003 CA 0282.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2003.

      Daria Burgess Diaz, Robert S. Abdalian, New Orleans, Counsel for Plaintiffs/Appellants John R. Sievers and Juanita L. Siev-ers.
    Brett M. Bollinger, Alan A. Zaunbrecher, Metairie, Counsel for Defendant/Appel-lee Epoch Well Logging, Inc.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.

      . Although plaintiffs’ surname is misspelled in the caption, throughout the opinion we correctly refer to them as "Sievers."

   | .KUHN, J.

Plaintiffs-appellants, John R. Sievers and his wife, Juanita, appeal the dismissal by summary judgment of their action for Jones Act (46 U.S.C.App. § 688) damages against employer, defendant-appellee, Epoch Well Logging, Inc. (Epoch), based on the trial court’s conclusion that John Siev-ers (John) lacked the requisite seaman status necessary to recover under this federal compensation scheme. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After John sustained personal injuries while assigned to an oil-drilling job working aboard the vessel Falcon #32, the Sievers, in May 1999, filed this petition for damages averring entitlement to damages under the Jones Act, and/or the Longshoremen and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, and/or Louisiana law. Among the defendants named in the Sievers’ petition was Epoch, who employed John; Spirit Energy 76, Inc./Unocal (Unocal), the company for whom the Sievers alleged the oil-drilling job was performed; and R & B Falcon Drilling USA, Inc. (Falcon), averred to be the owner/operator of Falcon # 32.

In March 2001, Unocal and Falcon collectively filed a motion for summary judgment asserting numerous bases for dismissal of the Sievers’ claims against each defendant. After a hearing on August 17, 2001, the trial court concluded that John was “not a Jones Act seaman” and granted a partial summary judgment in favor of Unocal and Falcon. And in a judgment signed on October 2, 2001, the Sievers’ | ¡/‘claims arising under the Jones Act” asserted against Unocal and Falcon were dismissed. No appeal from this judgment was taken by the Sievers.

Subsequent to the August 17, 2001 hearing, Epoch filed a motion for summary judgment wherein it noted the trial court’s earlier determination in favor of Unocal and Falcon concluding that John was “not a Jones Act seaman,” and suggested that the Sievers, therefore, had no valid claim against this defendant. After a hearing on September 28, 2001, the trial court granted summary judgment and dismissed all the Sievers’ claims against Epoch. The Sievers appeal.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the trial judge’s consideration of whether a summary judgment is appropriate. Guillory v. Interstate Gas Station, 94-1767, p. 5 (La.3/30/95), 653 So.2d 1152, 1155. 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 as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The summary judgment procedure is favored and shall be construed to accomplish the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

The initial burden of proof is on the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). However, once the mover has made a prima facie showing that the motion should be granted, if the non-movant bears the burden of proof at trial on the issue before the court, the burden shifts to him to present evidence demonstrating that material factual issues remain. La. C.C.P. art. 966(C)(2); J. Ray McDermott, Inc. v. Morrison, 96-2337, pp. 10-11 (La. App. 1st Cir.11/7/97), 705 So.2d 195, 202-03, units denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. The applicable substantive law determines the materiality of facts in a summary judgment setting. See J. Ray McDermott, Inc., 96-2337 at p. 11, 705 So.2d at 203. Therefore, we now turn to a discussion of the requisite principles of a Jones Act action for damages.

JONES ACT RELIEF

The Jones Act, 46 U.S.CApp. § 688, provides in part, that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.” This statute was enacted with the purpose of removing the bar to a seaman’s ability to recover damages in suits alleging negligence. Chandris, Inc. v. Latsis, 515 U.S. 347, 354, 115 S.Ct. 2172, 2183, 132 L.Ed.2d 314 (1995); Little v. Amoco Production Co., 98-1130, p. 4 (La.App. 1st Cir.5/14/99), 734 So.2d 933, 935, writ denied, 99-1752 (La.10/1/99), 748 So.2d 446. The Jones Act applies only to those plaintiffs who hold seaman status. See Little, 98-1130 at pp. 4-5, 734 So.2d at 935 (citing Chandris, 515 U.S. at 354-55, 115 S.Ct. at 2183, in discussing the lack of a statutory definition and the historical evolution of seaman status).

An inquiry into seaman status is fact-driven and will depend on the nature of the vessel and the worker’s precise relation to it. See McDermott Int'l Inc. v. Wilander, 498 U.S. 337, 356, 111 S.Ct. 807, 818, 112 L.Ed.2d 866 (1991). The United States Supreme Court articulated a two-pronged test for seaman status in Chandris, 515 U.S. at 368, 115 S.Ct. at 2190; accord Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540, 137 L.Ed.2d 800 (1997). In order to be deemed a seaman, plaintiff must have (1) contributed to the function of the vessel or the accomplishment of its mission; and (2) had a connection to the function of the vessel or an identifiable group of vessels that was substantial in both duration and nature. See Chandris, 515 U.S. at 368, 115 S.Ct. at 2190; see Little, 98-1130 at p. 6, 734 So.2d at 936. The second prong of the seaman status test separates those “sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.” See Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.

The Supreme Court has held that in determining a plaintiffs seaman status, courts must examine the total circumstances of the worker’s employment. See Chandris, 515 U.S. at 368, 370, 115 S.Ct. at 2191. And although it is not fixed in stone, the “rule of thumb” is that those workers who spend less than about 30 percent of their employment in the service of a vessel in navigation should not | (¡qualify as seamen under the Jones Act. Id., 515 U.S. at 371, 115 S.Ct. at 2191 (citing Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986)); see Little, 98-1130 at pp. 6-7, 734 So.2d at 936. Courts should not employ a snapshot test for seaman status, inspecting only the situation as it existed at the time of the accident. Chandris, 515 U.S. at 363, 115 S.Ct. at 2187. And not any maritime worker on a ship at sea as part of his employment is automatically a member of the crew of the vessel within the meaning of the statutory terms. Id.

The only item introduced into evidence by the parties at the hearing on the motion for summary judgment was the March 30, 2000 deposition of John. John testified that he was hired by Epoch on May 19, 1997, as a sample catcher trainee, which is a mud logger’s helper, and he eventually became a mud logger. He explained that a mud logger’s duty is to interpret data from collection devices through a computer software package aboard the rig. John described that by sensors located through out the rig, information was distributed via computer-generated programs to “the unit,” which he identified as a three-computer console about 20 feet by 10 feet in size that Epoch supplied to a vessel along with the mud loggers. From the information obtained from the unit, a mud logger logs the process, correcting any errors and interpreting the data. According to John, when the signals from the mechanized devices did not record properly, it was typically the job of the sample catcher' — -who acted as the eyes of the mud logger — to physically adjust the device that separated the sediment from the drilling mud allowing for the activity necessary for the sensors to record information to resume. John added that the main reason mud loggers are present on the rig during drilling 17operations was to gauge the gas content to avoid a large amount from coming up hole.

John stated that during the approximate one year he had worked for Epoch, he had been assigned to about twenty different rigs. And while the tour of duties of each assignment varied in duration, he averaged the length of time spent on each rig was between two and three weeks. John explained that typically a rig had four Epoch employees tending to mud logging duties: a mud logger and a sample catcher team would be assigned to a twelve-hour shift; and another mud logging team then replaced the preceding one. Unlike the employees of the drilling and oil companies who worked seven hours and then had seven hours off, mud loggers worked in longer twelve-hour shifts. And although the mud loggers stayed on the rig the duration of the hitch, sleeping on the premises and eating in the rig’s galley, John described differences between the third-party quarters, reserved for those who were not rig personnel, in which he and the other mud loggers slept and the sleeping accommodations for rig personnel.

In elaborating about the various relationships among the companies aboard a rig, John testified that Epoch’s customer was the oil company — the actual operator' — and not the drilling company, although he added that a good rapport with the drilling company employees was important. John received his assignments from a land-based Epoch employee. And while the oil company/operator could request that a particular Epoch employee be removed from the rig, only Epoch had the power to hire and fire a mud logger.

John said that he worked on various types of rigs including fixed platforms, jack-ups, barges, and semi-submersibles. Generally, when John finished one hitch Ison a rig, he did not know exactly which rig to which he would next be assigned. And while on occasion, a mud logger would head home after working a hitch thinking he would return to the rig after a break, often when he obtained his assignment from Epoch it would be aboard a different rig.

John testified that he had been aboard Falcon # 32 from the end of April for about three weeks when he sustained his injury during a 20-hour shift, which had commenced at 6 P.M. on the evening of May 12. He recalled that about a week before, as a cost saving measure, the Unocal representative had sent the sample catchers home suggesting that the drilling operations would not be done in a rapid manner and that two mud loggers would suffice. Working alone, John was doing the sample catcher’s job of physically adjusting the separating device when he sustained injury after contact with drilling mud. John was able to complete the tour of duty aboard Falcon #32. But due to industry-wide changes in oil prices, John explained that he did not return to work at Epoch after that hitch aboard Falcon # 32.

Without addressing whether John proved the first prong of seaman status test, i.e., that he contributed to the function of the vessel or the accomplishment of its mission, based on John’s testimony we find that Epoch established that John lacks the requisite substantial connection to the function of the Falcon # 32 for seaman status. While John correctly points out that he proved he was on board the inland barge for 24 hours/day, that he was not free to leave or return home but was required to live, where he ate his meals and slept, this snapshot inspection of his employment situation as it existed at the time of the accident is not disposi-tive of the determination of whether John is a seaman. Looking at his job over the entire |flyear he worked as a mud logger at Epoch, we note John’s testimony that, in addition to the hitch aboard Falcon # 32 where he sustained injury, he also had been assigned to that inland barge for an earlier hitch. But he admits that the total amount of time that he was aboard Falcon # 32 performing mud logging services for Epoch was 29 days. - Thus, Epoch has shown that John spent less that 30% of his time aboard Falcon #32. Moreover, given his detailed account of his activities aboard Falcon # 32 including his mud logging duties from April 1998 until his accident, Epoch has shown that John’s connection to Falcon # 32 was clearly a transitory or sporadic one.

Having failed to show factual support for a finding that John had a substantial connection to Falcon # 32, in order to defeat summary judgment on the issue of John’s entitlement to seaman status, the Sievers suggest that they have proven that John had a substantial connection to the function of a group of identifiable vessels which defeated summary judgment in favor of Epoch.

In our de novo examination of the record on review of this assertion, we are guided by the historical concept of a “fleet” which, in the seaman status determination, means an identifiable group of vessels acting together or under one control. See Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir.1986). The notion that fleet of vessels in this context means any group of vessels an employee happens to work aboard was rejected. Id. Unless fleet is given its ordinary meaning, the fundamental distinction between members of a crew and transitory maritime workers such as longshoremen is totally obliterated. Id.; accord Waguespack v. Aetna Life & Casualty Co., 795 F.2d 523, 526 (5th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 163 (1987).

| inJohn testified that he worked on various types of drilling rigs, including fixed platforms, jack-up rigs, drilling barges, and semi-submersibles and that the rigs were owned or operated by various different entities including Nabors, Transoceanic, and Falcon. John explained that Na-bors was Epoch’s parent company, and that he had worked on two Nabors’ rigs: a fixed platform and a semi-submersible for a total of approximately six weeks. This is insufficient to show a substantial connection with the function of a group of vessels owned by Nabors.

The Sievers have failed to produce factual support sufficient to satisfy their burden of proving a substantial connection to an identifiable group of vessels acting together or under one control. Accordingly, we find no error in the trial [n court’s conclusion that the Sievers failed to prove seaman status to support an action for damages under the Jones Act.

DECREE

For these reasons, the trial court’s judgment dismissing the Sievers’ claims against Epoch is affirmed. Appeal costs are assessed against John L. and Juanita Sievers.

AFFIRMED.

      . Although in its answer this defendant referred to itself as “Spirit Energy 76, Inc.,” we refer to it as “Unocal” in conformity with its reference in subsequent pleadings.

      . The Sievers designated the transcript .of the September 28, 2001 hearing as part of the appeal record. But because the hearing was not transcribed, it is not included in the record.

      . The Sievers subsequently filed a "Motion for New Trial" pleading seeking a reconsideration of the trial court's conclusion that Epoch was entitled to a dismissal of all their claims, which was denied on January 30, 2002. It is from the denial of the motion for new trial that the Sievers lodged this devolutive appeal. But an order denying a motion for new trial is generally a nonappealable judgment, reviewable only under supervisory jurisdiction for abuse of discretion. Francis v. Hotard, 2000-0302, p. 2 n. 1 (La.App. 1st Cir.3/30/01), 798 So.2d 982, 984 n. 1, writ not considered, 2001-1323 (La.6/22/01), 793 So.2d 1263. Without passing on the propriety of the Siev-ers’ filing of a motion for new trial from the grant of a summary judgment, because the Sievers have clearly demonstrated an intention not to acquiesce in the summary judgment or to abandon their right to appeal by filing the motion for new trial, see Allen v. State ex rel. Ernest N. Morial New Orleans Exhibition Hall Authority, 2002-1072, p. 3 n. 2 (La.4/9/03), 842 So.2d 373, 376 n. 2, and based on their appellate brief obviously intended to appeal both the grant of summary judgment and the denial of the new trial motion, mindful that appeals are favored and that as an interlocutory judgment that causes irreparable harm, the dismissal of the Sievers' claims against Epoch is appealable, see La. C.C.P. art. 2083, we find that the matter is properly subject to appellate review.

      . The Sievers urge two bases precluded summary judgment. First, they’ suggest their response to an interrogatory, which was not introduced into evidence, supports a finding that John worked aboard Falcon rigs for 74 of the 209 days he worked for Epoch, evincing time at sea aboard a group of Falcon vessels beyond the 30% rule-of-thumb showing necessary for him to qualify as seaman. Close scrutiny of that response shows that of the 74 days John worked aboard Falcon rigs, 29 were aboard Falcon # 32 and 28 were aboard another Falcon barge. John's deposition testimony does not identify the type of Falcon rigs on which he worked the other 17 days. Thus, if we were to consider the response and, assuming Falcon #32 and the other Falcon barge were "vessels in navigation” for Jones Act purposes, the Sievers have established only that 27.2% of John's at-sea employment was aboard an identifiable group of Falcon vessels. This showing is insufficient to confer seaman status upon John. The Sievers additionally assert that outstanding discovery prevents summary judgment because they have shown John had a substantial connection with the function of a group of vessels. But in that same response to Epoch's interrogatory, the Sievers admitted that John worked on rigs and a barge which were owned by various different entities, including Transoceanic, Falcon, Viking, Nabor, Pen-zoil, Cliff's, and Diamond, thereby conceding the lack of common ownership of the group of vessels. The Sievers also urge that Epoch failed to adequately respond to a request for production of things seeking documentation of John's work assignments. Despite an objection response, Epoch provided bi-weekly time sheets for John, which identified the "Client/Job Description.” Importantly for purposes of our review is that while the Siev-ers propounded the request for discovery in September 1999, John’s deposition was taken in March 2000, and they received written responses to the requested production of things from Epoch in July 2000, which in-eluded the employer’s objections, at no time before the September 28, 2001 hearing did the Sievers move to compel the elicited documentation. See La. C.C.P. art. 1469. This outstanding discovery assertion was presented to the trial judge who, despite his familiarity with the case, refused to modify his decision. The Sievers simply failed to produce the requisite factual support necessary to establish that they will be able to satisfy their evidentiary burden of proof at trial. Thus, we find that neither of these bases precludes summary judgment.

      . Epoch’s motion expressly asserted the trial court’s earlier conclusion that John is not a seaman in its grant of summary judgment in favor of Unocal and Falcon foreclosed any Jones Act claims the Sievers alleged against Epoch. Epoch further claimed entitlement to dismissal of any LHWCA or Louisiana Workers’ Compensation claims on the basis of the district court's lack of jurisdiction, noting the federal courts' exclusive jurisdiction over LHWCA claims (see 33 U.S.C. § 913) and that of the Office of Workers’ Compensation for Louisiana's compensation claims (see La. Const art. V, § 16A; La. R.S. 23:1310.3). See Chandris, 515 U.S. at 355-56, 115 S.Ct. at 2183-84 (Jones Act and LHWCA are mutually exclusive compensation regimes and the injured worker who is covered by neither federal compensation scheme may still be entitled to recovery under state workers' compensation scheme.) The parties have not raised error with the broad dismissal of "all claims” asserted by the Sievers against Epoch and, at oral argument, appellants' attorney stated that as "a practical matter” the dismissal terminated this lawsuit against Epoch. Thus, we do not address the propriety of the broad dismissal of all this injured employee’s claims in the course and scope of his employment against his direct employer.