author: |, CARAWAY, J.

text:
    JOHNSON & PLACKE, et al, Plaintiffs-Respondents v. James A. NORRIS, Jr., Defendant-Applicant.
    No. 38,300-CW.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      T. J. Adkins, for Applicant.
    Cook, Yancey, King & Galloway, by Bernard S. Johnson, Shreveport, for Respondents.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   |, CARAWAY, J.

This unusual case requires examination of the use of the court’s contempt power against a judgment debtor for his refusal to turn over possession of property subject to seizure by the plaintiff. Following an initial finding of contempt by the district court in 1994 for the judgment debtor’s failure to turn over 5,000 one-hundred-dollar bills, the debtor’s bankruptcy intervened, staying the state court proceedings. In the bankruptcy court, the debtor continued his refusal to turn over the money claiming that he burned the cash. He was imprisoned by the bankruptcy court for civil contempt and also convicted by the federal government for perjury. The bankruptcy now having concluded without the discharge of the judgment debt, the plaintiff seeks to enforce the 1994 contempt order. Following a hearing to reconsider its original 1994 sentence for civil contempt, the trial court ordered the judgment debtor to jail, prompting our grant of supervisory review. Finding that the trial court’s reconsideration of the civil contempt reflected a misapprehension of the limits of such contempt power, we now remand the case for further proceedings consistent with principles set forth herein.

Facts and Procedural History

Many facts surrounding this longstanding dispute have been reviewed in prior decisions of both this court and the federal courts. The controversy centers upon a money judgment of approximately $490,000 rendered on October 5, 1994, in favor of the appellee law firm, Johnson & Placke (“J & P”) and its partners, against its former partner, James A. Norris, Jr. The 1 ¡judgment resulted from a successful action for conversion in which Norris was shown to have taken, without partnership authority, $525,977.81 in partnership funds. He used the funds to pay off approximately $330,000 of the partnership’s debt, pocketing the remainder of the money as his asserted one-third share of the partnership. The trial court’s award of approximately $460,000 to the partnership and $30,000 in emotional damages to Johnson and Placke, individually, for the conversion was later affirmed in an unpublished opinion of this court.

The judgment was not suspensively appealed. Therefore, the second round of proceedings seeking execution of the judgment began in December 1994, and resulted in a contempt-of court judgment for Norris’ failure to turn over cash shown to be in his possession. This aspect of the lawsuit remains highly relevant to this appeal, and is discussed in further detail below.

Before Norris served any jail time for the district court’s judgment of contempt, the next phase began in bankruptcy court when J & P instituted an involuntary proceeding against Norris in January 1995. Upon the bankruptcy trustee’s motion for turnover, the bankruptcy court ordered Norris to relinquish $490,000 to $500,000 in currency. The court rejected Norris’ testimony that he burned the money in October 1994. In re Norris, 183 B.R. 437 (Bankr.W.D. La.1995). When Norris failed to comply with the bankruptcy court’s order, it found him in contempt and ordered him imprisoned, subject to his ability to purge himself of the contempt by the payment of $490,000 to $500,000. In re Norris, 192 B.R. 863 (Bankr.W.D.La.1995), affirmed in Matter of Norris, 114 F.3d 1182 (5th Cir.1997), cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). The record indicates that Norris ultimately served one year in prison pursuant to the civil contempt order of the bankruptcy court.

The final proceeding which arose in connection with Norris’ alleged burning of the currency was his prosecution for the perjury he committed before the bankruptcy court. United States v. Norris, 217 F.3d 262 (5th Cir.2000). In that case, the government disproved Norris’ contention that he incinerated some 4,900 one-hundred-dollar bills in a trash barrel by igniting the gasoline-soaked money. He was convicted and sentenced to 33 months imprisonment.

The initial state court proceeding for execution of J & P’s judgment began on December 8, 1994, when the parties appeared in court on motions for protective order and contempt. At the hearing, the firm also filed a motion pursuant to La. R.S. 13:3862 for an order directing the sheriff to serve Norris immediately and compelling Norris to surrender all currency in his possession, on his person or otherwise under his control.

At the December 8,1994 hearing, Norris testified that in the first quarter of 1994, he placed approximately $500,000 in his safety deposit box at Louisiana Bank. Norris conceded that upon the trial court’s rendition of its reasons for judgment in favor of J & P on Séptember 30, 1994, he removed the funds from the safety deposit box in early October 1994. |4When asked what he did with the money next, Norris asserted his privilege against self-incrimination and refused to answer. However, Norris testified that the funds were not under his control at the time of the hearing. Nevertheless, the 'trial court determined that Norris’ testimony failed to satisfy his burden of proving that the money was not in his possession. The court was particularly persuaded by the fact that Norris removed the money from the safety deposit box in October 1994, only two months prior to the hearing. Accordingly, the court signed the order directing Norris to deliver the money to the sheriff by 5:00 p.m. on December 9, 1994. The court informed Norris that non-compliance would expose him to contempt proceedings.

On December 14, 1994, J & P filed motions for a judgment debtor rule and for “Punishment for Failure to Comply with La. R.S. 13:3862” based upon Norris’ failure to comply with the “turnover” order. The hearing was held on December 16, 1994. As in the previous proceedings, Norris represented himself. The trial court declined to hear further evidence at the contempt hearing about Norris’ possession of the money, finding instead that those facts had already been established. Norris testified, again insisting that he could not produce the money, but he offered no other explanation, and instead claimed his privilege against self-incrimination. He also stated that in exchange for immunity, he would explain what he did with the money. J & P offered Norris’ deposition into evidence, attempting to show that Norris borrowed money from his family in 1994 and pre-paid his home mortgage to avoid the court’s judgment. Norris also claimed in | Bhis deposition that he took the money out of his safety deposit box and spent it. When asked how, he testified that he would have to go “back and look at records.”

The trial court found Norris in contempt of court pursuant to La. R.S. 13:3862. The trial court also found Norris in direct contempt of court for failure to answer its question concerning the disposition of the money. The court then ordered Norris to jail pending such further orders of the court, and noted that the contempt could be purged if Norris solved the half-million-dollar problem.

Norris first sought supervisory review from this court, which denied relief. Norris then pursued writs to the Louisiana Supreme Court which stayed further action pending resolution of the bankruptcy. It was not until June 20, 2003, that the Supreme Court recalled the stay order, denied Norris’ writ application, and remanded the matter to the trial court.

Thereafter, on its own motion, the trial court set a rule to show cause why Norris should not begin serving the 1994 sentence for contempt. This hearing, which occurred on October 17, 2003, is the subject of this appeal. Norris filed preliminary exceptions of lack of jurisdiction and res judicata, arguing that because the bankruptcy court retained jurisdiction over the funds, the district court had none and that the identical turnover and contempt issues had already been adjudicated in the bankruptcy court. Finally, Norris argued that under the circumstances, the sentence’s execution would be punitive rather than coercive. Attached to the exceptions were copies of the bankruptcy court’s corresponding “turnover” order and another | fiorder stating that “any order authorizing the closing of this case shall not constitute or effectuate abandonment to the debtor of the bankruptcy estate’s interest in, to or upon” the subject $500,000.

At the hearing on the rule, the trial court heard arguments, considered the briefs and denied the exceptions. Regarding the self-incrimination contempt sentence, the trial court noted that Norris had in fact answered the question about what he did with the money and spent time in jail for his answer. Nevertheless, as for Norris’ failure to produce the money, the court stated that it did not “have any choice” on whether Norris went to jail because he had yet served no time for the 1994 contempt. The court had “its doubts” that new incarceration would have its “intended effect,” but enforced the previous sentence anyway, and ordered Norris to report to jail the following Monday, pending supervisory review of this court. Although the court mentioned periodic review of Norris’ case, it declined to set a schedule therefor. Norris’, civil writ application ensued, resulting in our stay of thé sentence and this review.

On appeal, Norris reiterates his claims of res judicata and lack of jurisdiction and argues that the trial court abused its discretion in imposing a punitive sentence for civil contempt. Specifically, Norris complains that the bankruptcy court’s order expressly retained jurisdiction of the subject $500,000 and explicitly precluded abandonment of the interest of the bankruptcy estate in the money. Norris argues that this order effectively included the money as an asset over which the district court has no jurisdiction. Norris also contends that because identical issues were 17resolved in federal court, the present contempt proceedings are res judicata. Finally, in light of Norris’ confinement and obvious inability to turn over the money, any further incarceration for civil contempt is punitive in nature.

Civil Contempt Sanctions

Subtle factual and remedial variances hinge contempt proceedings precariously between the civil and criminal law. When the contempt swings toward criminal punishment, the full panoply of constitutional rights protects the contemnor. Thus, as stated in Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 630, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988), “the characterization of this proceeding and the relief given as civil or criminal in nature, for purposes of determining the proper applicability of federal constitutional protections, raises a question of federal law rather than state law.” Accordingly, the United States Supreme Court’s pronouncements on the law of contempt are important guides for the consideration of this unusual contempt action.

Criminal contempt is a crime in the ordinary sense. As such, criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994). In Louisiana, the maximum sentences for criminal contempt are set forth in La. R.S. 13:4611(l)(a), (b) and (d).

In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive | Rand avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. International Union, 512 U.S. at 827, 114 S.Ct. 2552. Neither a jury trial nor proof beyond a reasonable doubt is required. Id. at 827, 114 S.Ct. 2552. Louisiana law provides that when a contempt of court consists of the omission to perform an act which is yet within the power of the person charged with contempt to perform, he may be imprisoned until he performs it. La. C.C.P. art. 226; La. R.S. 13:4611(l)(e).

Although the procedural contours of the two forms of contempt are well established, the distinguishing characteristics of civil versus criminal contempts are somewhat less clear. International Union, 512 U.S. at 827, 114 S.Ct. 2552. Most contempt sanctions share punitive and coercive characteristics, and the fundamental question underlying the distinction between civil and criminal contempts is what process is due for the imposition of any particular contempt sanction. Id. at 827, 114 S.Ct. 2552.- Whether a contempt is civil or criminal turns on the character and purpose of the sanction involved. A contempt sanction is considered civil if it is remedial and for the benefit of the complainant. On the contrary, a contempt sanction is criminal if the sentence is punitive, to vindicate the authority of the court. The stated purpose of a contempt sanction alone, however, cannot be determinative. Rather, conclusions about the civil or criminal nature of a contempt sanction are properly drawn from an examination of the character of the relief itself. Id. at 827, 828, 114 S.Ct. 2552.

The paradigmatic coercive, civil contempt sanction involves confining a con-temnor indefinitely until he complies with an affirmative command such as an order to pay alimony, or to surrender property ordered 19to be turned over to a receiver, or to make a conveyance. International Union, 512 U.S. at 828, 114 S.Ct. 2552; Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911). Iniprisonment for a fixed term similarly is coercive when the contemnor is given the option of early release if he complies. International Union, 512 U.S. at 828, 114 S.Ct. 2552; Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). In this situation, the contemnor is able to purge the contempt and obtain his release by-committing an affirmative act, and thus “carries the keys of his prison in his own pocket.” International Union, 512 U.S. at 828, 114 S.Ct. 2552; Gompers, 221 U.S. at 442, 31 S.Ct. 492. In contrast, a fixed sentence of imprisonment is punitive and criminal if it is imposed retrospectively for a completed act of disobedience such that the contemnor cannot avoid or abbreviate the confinement through later compliance — the defendant is furnished no key and he cannot shorten his term by promising not to repeat the offense.

To jail one for contempt for omitting an act he is powerless to perform makes the proceeding purely punitive. Maggio v. Zeitz, 333 U.S. 56, 68 S.Ct. 401, 92 L.Ed. 476 (1948). When compliance is impossible, neither the moving party, nor the court has any reason to proceed with the civil contempt action. United States v. Rylander, 460 U.S. 752, 103 S.Ct. 1548, 75 L.Ed.2d 521 (1983).

Likewise, the law is well established that a contemnor will not be held in jail forever for civil contempt. Maggio, 333 U.S. at 76, 68 S.Ct. 401. In fact, it is abhorrent to our concept of personal freedom that the process of civil contempt can be used to jail a person indefinitely, possibly for life, even |inthough he or she refuses to comply with a court’s order. In re Grand Jury Investigation, 600 F.2d 420 (3rd Cir.1979). Once confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process. Lambert v. State of Montana, 545 F.2d 87 (9th Cir.1976).

For example, in the case of an adamant grand jury witness contemnor, continued imprisonment may reach a point where the imprisonment becomes more punitive than coercive, thereby defeating the purpose of the commitment. This occurs when it becomes obvious that sanctions are not going to compel compliance. Simkin v. United States, 715 F.2d 34 (2d Cir.1983); In re Grand Jury Investigation, 600 F.2d at 424-425. Federal district courts are given broad discretion in making this determination regarding adamant grand jury witnesses and are required to conscientiously determine on an individualized basis “whether there remains a realistic possibility that continued confinement might cause the contemnor to testify.” Simkin, 715 F.2d at 37. Application of the due process standard to specific situations remains difficult, however, since the objectively identifiable facts such as age, state of health, and length of imprisonment will often fail to provide a clear indication of whether or not further confinement will increase the likelihood that the contemnor will accede to the court’s demands. In re Grand Jury Investigation, 600 F.2d at 425. Likewise, a recalcitrant witness jailed for sixteen months, all the while refusing to furnish unprivileged information in state court proceedings, was entitled to a hearing to determine whether at some point in what otherwise |n would be an indefinite period of confinement, due process considerations obliged the court to release the contemnor if he could show no substantial likelihood that continued confinement would accomplish its coercive purpose. Lambert, 545 F.2d at 91. However, the mere refusal to comply, when a contemnor has not shown an inability to comply with a court order, has been held insufficient to show that a coercive order has lost its coercive effect even after the contemnor has served seven years in prison. Chadwick v. Janecka, 312 F.3d 597 (3rd Cir.2002), cert. denied, 538 U.S. 1000, 123 S.Ct. 1914, 155 L.Ed.2d 828 (2003). Likewise, the twelve-month refusal of a father to bring his young son to a hearing without consideration of other factors was held insufficient to show that the punishment had become punitive. King v. Department of Social and Health Services, 110 Wash.2d 793, 756 P.2d 1303 (1988). Still other courts have noted that each passing month of incarceration strengthens a claim of inability and that the steadfast refusal of an contemnor to yield to the coercion of incarceration, despite an ability to pay, would obligate a judge to release him after the passing of months or years. United States ex rel. Thom v. Jenkins, 760 F.2d 736 (7th Cir.1985).

In Louisiana, contempt of court is generally defined as any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Acts constituting contempt include contumacious, insolent or disorderly behavior toward a judge, attorney or other officer of the court, general breaches of the peace, boisterous conduct or violent disturbances Intending to interrupt the business of the court or impair its dignity or respect for its authority. La. C.C.P. art. 222. Additionally, our law provides that contempt occurs upon the wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court or deceit or abuse of the process or procedure of the court by a party to an action or proceeding. La. C.C.P. art. 224. Contemptuous acts also include the removal of property in the custody of an officer acting under authority of a judgment, order, mandate, writ, or process of the court. La. C.C.P. art. 224.

A specific contempt provision is found in Louisiana’s judgment debtor examination law. La. C.C.P. art. 2456 allows contempt punishment upon a judgment debtor who refuses to appear for the examination, to produce his books, papers, or other documents when ordered to do so or refuses to answer any question held pertinent by the court. A similar statute with a similar goal is La. R.S. 13:3862, which was also the basis of J & P’s action in this case. Specifically, the statute provides as follows:

On ex parte motion of a party who has caused to be issued a writ directing the seizure of property, the court may order that money or other property on the person of the party against whom the order is directed, or otherwise in his possession or under his control, be delivered to the sheriff immediately upon personal service of the order.
If it is proved that at the time of such service the person ordered to deliver the money or other property had it on his person, or otherwise in his possession or under his control, the failure to comply with the order shall be punished as a contempt of court, unless it is shown that the property is exempt from seizure.

From these statutes, the contempt at issue in this proceeding is for the benefit of J & P for the execution of its judgment and not to vindicate the authority of the court. The contempt was a constructive contempt in that it |13occurred outside the immediate presence of the court and required proof of Norris’ possession of the money which was not on his person in the courtroom. La. C.C.P. arts. 222 and 224. The turnover order and the resulting contempt punishment pursuant to La. R.S. 13:3862 represent actions for civil contempt to coerce performance by imposing an indefinite sentence for that which was within Norris’ power to perform. We have found no Louisiana jurisprudence interpreting La. R.S. 13:3862, nor dealing with such a turnover order, the burden of proof, and the court’s measure and distinguishment of the civil versus criminal law implications of such proceedings. Accordingly, we have turned to federal law and jurisprudence concerning such turnover proceedings utilized in the bankruptcy courts. 11 U.S.C. § 542 (1979); Oriel v. Russell, 278 U.S. 358, 49 S.Ct. 173, 73 L.Ed. 419 (1929); Maggio, 333 U.S. at 56-78, 68 S.Ct. 401.

The jurisprudentially-developed summary turnover proceeding enabled the federal bankruptcy courts to retrieve concealed and diverted assets or secreted books of account the withholding of which would intolerably obstruct and delay administration of the bankrupt’s estate. Maggio, 333 U.S. at 63, 68 S.Ct. 401. The turnover was required to be supported by clear and convincing evidence of the existence of the property or its proceeds and possession thereof by the defendant at the time of the turnover order. Maggio, 333 U.S. at 63, 68 S.Ct. 401; Oriel, 278 U.S. at 364, 49 S.Ct. 173. This proof has been referred to as the “present possession” rule.

| uAfter the 1979 inclusion of a turnover process in the Bankruptcy Code, which does not expressly address contempt, the turnover order nevertheless remained enforceable by civil contempt proceedings. 11 U.S.C. § 542 (1979); In re Lawrence, 251 B.R. at 630; In re Norris, 192 B.R. at 863. In a civil contempt proceeding, the party seeking the contempt has the initial burden of proving by clear and convincing evidence that the respondent violated a court order. Commodity Futures Trading Com’n v. Wellington Precious Metals, Inc., 950 F.2d 1525, (11th Cir.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 66, 121 L.Ed.2d 33 (1992). When a summary turnover order is enforced through a contempt proceeding, the court is prohibited from inquiring into the justification for the turnover order itself at the contempt proceeding. However, the con-temnor is allowed to present evidence of a “present inability” to comply with the order that goes beyond a mere assertion of inability. This is because at both the turnover proceedings and the contempt proceedings, the question of possession and ability to produce the goods is at issue, but quite possibly at different points in time. Indeed, when the trustee institutes a later contempt proceeding, he tenders the issue Of present wilful disobedience to the court and opens inquiry into nonpossession at the later time. Maggio, 333 U.S. at 74-75, 68 S.Ct. 401. In raising this defense, however, the contemnor has the burden of proof. Rylander, 460 U.S. at 757, 103 S.Ct. 1548; In re Lawrence, 251 B.R. at 651. When the contemnor makes a clear showing of inability to comply with the order, then, imprisonment cannot continue. In re Lawrence, 251 B.R. at 651; In re Norris, 192 B.R. at 863. In such summary proceedings, the contemnor can 11sdeny his present possession or give any evidence of present conditions or intervening events which corroborates him; the credibility of his denial is weighed in light of his present circumstances. If he offers no evidence of his present inability to comply, or stands mute, he fails to meet his burden. Nor can he succeed in his burden by his own denials which the court finds incredible in context. His denial of possession is given credit after demonstration that a period in prison did not produce the goods. Maggio, 333 U.S. at 75-76, 68 S.Ct. 401.

Discussion

Before examining the trial court’s reconsideration of its 1994 contempt judgment, we will review the issue of the burden of proof necessary for contempt in this property turnover setting. From the United States Supreme Court precedents, the majority of the federal courts still employ the higher standard of proof by clear and convincing evidence instead of a mere preponderance standard. Since we find that such standard has a constitutional implication for the measure of this civil proceeding with near criminal punishment, we agree that such burden of proof applies.

In the early ruling in Oriel, the court applied the clear and convincing evidence standard for the turnover order. One reason given for the choice was because the establishment of a case for turnover was considered the equivalent of fraud, which required such higher standard of proof in a court of equity. Nevertheless, the court also listed as a justification for the higher burden of proof the following:

The proceeding is one in which coercive methods by imprisonment are , probable and are foreshadowed.

11fi278 U.S. at 368, 49 S.Ct. 173. While the proceeding is civil, leading possibly to only civil contempt, weaker proof allowing for a competing possibility of the debtor’s inability to perform may lead to imprisonment that is actually criminal punishment for an indefinite duration. In other settings, the United States Supreme Court has held that civil proceedings implicating an individual’s right to freedom requires that the burden of proof be higher than the mere preponderance of the evidence. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979).

The two factual issues that are critical for the turnover proceeding are (i) the past existence of the property or money in the debtor’s possession and (ii) the fact that it is “yet within the power” of the debtor to produce the property to the court. These facts are somewhat interdependent. In fact, if present possession in the courtroom is shown at a judgment debtor examination or other similar proceeding, the two facts would merge as one and the court could order the immediate seizure of the property. Nevertheless, there is a critical element of time and other circumstances that can produce opposite conclusions concerning these two factors.

The first factual element was proven in the December 1994 proceedings by Norris’ admission that he withdrew from his safety deposit box 4,900 one-hundred-dollar bills approximately two months before the hearing. This fact was firmly established by direct evidence.

The second and most critical fact—the present ability to comply-—inherently rests on circumstantial evidence. Given the relatively short time period and the extremely large amount of money, which is nonperishable |17property, the evidence gave rise to the strong inference that the money was still in Norris’ possession. This proof was strengthened by his feeble and unsubstantiated assertion that he had spent the money before the December proceedings. Finally, the fact that J & P’s large judgment was just then becoming exigible indicated that Norris was attempting to place the property beyond his creditor’s reach.

The proof of these two facts on December 8, 1994, and Norris’ disobedience twenty-four hours later, justified the trial court’s ruling on December 16 to hold Norris in contempt and to employ the civil, coercive remedy of sentencing him to jail until he produced the money. Employment of that indefinite sentence, however, was not the end of the matter. The conclusion in 1994 that the contempt process for the testing of Norris’ wilful disobedience could commence with imprisonment did not mean that the strongly established inference of his ability to produce the money at that time could never be reconsidered. The cited jurisprudence above reveals that the courts can be called upon after a lengthy imprisonment of the con-temnor to test whether the civil remedy has become more punitive than coercive, thereby defeating the purpose of the imprisonment, or violating due process. Indeed, the trial court recognized the need for reconsideration in this case. Nevertheless, the trial court expressed a mistaken view that it was bound to enforce the 1994 ruling, despite its doubts, as though the sentence was an unfulfilled criminal punishment. Accordingly, under the unique circumstances of this case, we remand the case for the trial court’s complete review of the matter to determine whether a civil contempt l1ssentence remains coercive in view of the facts which have occurred since 1994 and any further evidence presented by either party.

Norris has presented evidence of his long federal imprisonment which occurred for essentially the same coercive purpose. In Maggio, the leading United States Supreme Court case on this subject, there is dicta indicating that if “a period in prison does not produce the goods,” the inference of the contemnor’s ability to comply weakens and “he will not be held in jail forever.” 333 U.S. at 76, 68 S.Ct. 401. Additionally, the long passage of time, almost ten years, indicates that the entire $500,000 to prevent imprisonment may no longer be a realistic “key” in Norris’ hand for release from jail. In Maggio, because of a significant delay between the initial turnover order and the lower court’s contempt ruling, the high court remanded the case for full consideration of the evidence of the eontemnor’s lifestyle during the two-year period between the entry of the turnover order and finding of contempt. Similarly, like the lower courts in Maggio, the trial court in this case is not bound by the strong inference of Norris’ possession in 1994 of the $500,000 if other factors discredit that inference over time.

Finally, we note that the creditor’s use of the contempt power under La. R.S. 13:3862 involving the cost of state imprisonment is not the only coercive means of execution of a Louisiana judgment. There is evidence in the record that J & P has continued to exercise repeated judgment debtor examinations of Norris, and wage garnishment proceedings have apparently begun. When faced with conflict over whether civil contempt has lost its coercive power and strayed into the strictures of criminal law, the trial court |19is not without other resources to aid the creditor in the execution of a judgment debt.

Regarding the effect of the bankruptcy proceedings, we find that res judi-cata does not apply nor that J & P, as a creditor, is precluded from seeking this relief. Norris does not assert that a stay from the bankruptcy court continues to affect these proceedings. J & P’s efforts for execution upon its judgment are continuing proceedings which turn on developing facts regarding Norris’ assets and his ability to comply. The remand which we now order allows for consideration of new and different facts which have evolved because of the passage of time. Therefore, the thing to now be adjudicated in this proceeding can hardly be said to be identical to that which was adjudicated in December 1994, or thereafter in the bankruptcy court.

Conclusion

Because this issue of civil contempt for the creditor’s benefit under La. R.S. 13:3862 is res nova in Louisiana and subject to important constitutional constraints, we believe that justice requires a remand of this matter for further proceedings consistent with the foregoing examination of the law. Costs of appeal are assessed to applicant.

REMANDED FOR FURTHER PROCEEDINGS.

      . These proceedings were precipitated by Norris' failure to appear for a scheduled deposition. The parties had also been in court on December 7, 1994, for these motions. The trial court continued the motions until the following day and ordered Norris to present himself to plaintiff's lawyer for the giving of his deposition immediately after the December 7 hearing.

      . A minority of courts have recently questioned whether the clear and convincing standard remains viable in the context of the turnover proceeding. See, In re Santaella, 298 B.R. 793 (Bankr.S.D.Fla.2002); In re U.S.A. Diversified Products, Inc., 193 B.R. 868 (Bankr.N.D.Ind.1995). Nevertheless, courts continue to apply the clear and convincing standard. In re Lawrence, 251 B.R. 630 (Bankr.S.D.Fla.2000); In re Norris, 192 B.R. at 863.


source: Caselaw Access Project

author: |, STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Morian SPIVEY, Appellant.
    No. 38,243-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Gregory G. Elias, Monroe, for Appellant.
    Robert W. Levy, District Attorney, Clifford R. Strider, III, Stephen K. Hearn, Jr., Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   |, STEWART, J.

Morían Lavelle Spivey (“Spivey”) was convicted by a jury of second degree murder and was sentenced to life at hard labor without benefit of probation, parole or suspension of sentence. For the following reasons, we affirm his. conviction and sentence.

FACTS

On September 13, 2001, Morían Lavelle Spivey was driving through the campus of Grambling State University on his way to get a haircut. He was not a student at the school. He encountered the victim, a student named Samuel Washington, III. They argued and then began to fight. Although Spivey was significantly larger than the victim, Washington knocked him to the ground after Spivey shoved him. Three of the victim’s friends, Rodney Bridgewater, Phillip Madison and Michael Theus, were parked near the scene of the fight and joined it to assist Washington.

Curtis Armand, a university administrator, was driving down the street and noticed the fight. He got out of his vehicle and yelled for the men to stop fighting. After the fight broke up, the victim and his friends were running off when Spivey walked to his vehicle, got a gun, and shot Washington.

Aiesha Dicko, a student who was riding in a car on her way to Truth Hall, testified she saw people running. She testified that she saw Washington run in front of the car and up a little hill when he slipped and lost his balance. She saw that while he was hunched over, he was shot by Spivey.

| ¡/The one shot hit the victim in the chest. Betty Jones Farmer, a nursing instructor at the university, testified about how she ran to the scene and rendered first aid. Efforts to resuscitate Washington failed.

A 9-millimeter shell casing was recovered from the scene by Cornelius Gillis, a member of the Grambling State University Police Department. The weapon was never recovered. Larry C. Garner, an acquaintance of Spivey, testified that on the day of the incident Spivey asked him if he could leave his vehicle parked at his house because he had been in a confrontation on campus. Greg W. Ludley, a Grambling State University police office, was assigned the task of finding the vehicle Spivey drove away from the scene. He testified that it was found at Garner’s residence. He said it was hidden from view from the street because it was parked two feet from the house.

The defense called Bridgewater, Madison and Theus as witnesses in an attempt to show that Spivey was afraid of the victim because of a prior altercation between them. It appears that this trial strategy was also an attempt to show that Washington was the aggressor and Spivey acted in self-defense. Instead, the testimony of these three participants in the fight showed that Spivey had been the aggressor with a gun in a fight with Madison in the wee hours of Sunday morning before ■ this incident on the campus. Bridgewater’s testimony further showed that Spivey started the physical fight on campus by shoving the victim during an argument. Their testimony also matched that of the state’s witnesses who said the fight broke up and the victim ran away from Spivey.

laThe jury found Spivey guilty of second degree murder. He filed a motion for new trial and a motion for post-verdict judgment of acquittal. Both motions were denied, and he was sentenced to life. This appeal ensued.

DISCUSSION

Sufficiency of Evidence

Spivey asserts that the trial court erred and abused its discretion when it failed to grant his motion for a new trial and/or judgment of acquittal. He asserts that the evidence presented was not sufficient for a finding of second degree murder, and that it presented a serious question of self-defense. Spivey argues that the participation of the victim’s three friends in the fight caused the level of the confrontation to rise to the point that Spi-vey could reasonably believe that he was in imminent danger of death or great bodily harm and that he was justified in believing that it was necessary to kill in order to save himself from danger. He contends that, at a maximum, the evidence shows that he may have been guilty of manslaughter and that his conviction and sentence should be reduced accordingly.

The state argues that Spivey was the aggressor in the fight and at the time of the shooting because the victim and the others fighting him had turned and run away from the fight, thus eliminating the possibility that the shooting was done in self-defense. The state asserts that Spi-vey did not prove the mitigating circumstance of heat of blood since the fight was over and Spivey was no longer in danger when he went to his car and got the gun.

| ¿When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt.

The question of sufficiency of evidence was properly raised by a motion for post-verdict judgment of acquittal. See State v. Howard, 31,807 (La.App.2d Cir.8/18/99), 746 So.2d 49, rehearing denied, writ denied, 1999-2960 (La.5/5/00), 760 So.2d 1190. The reviewing court is to consider the record as a whole and not just the evidence most favorable to the prosecution; and, if rational triers of fact could disagree as to the interpretation of the evidence,- the rational decision to convict should be upheld. State v. Mussall, 523 So.2d 1305 (La.1988).

Second degree murder is defined in La. R.S. 14:30.1 as:

A. Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2)(a) Wflien the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.

| ¡^Specific intent is the state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Ellis, 28,282 (La.App.2d Cir.6/26/96), 677 So.2d 617, writ denied, 96-1991 (La.2/21/97), 688 So.2d 521. Specific intent is a state of mind and need not be proved as a fact; it may be inferred from the circumstances and the actions of the defendant. State v. Kahey, 436 So.2d 475 (La.1983); State v. Murray, 36,137 (La.App.2d Cir.8/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.9/5/03), 852 So.2d 1020; State v. Ellis, supra; State v. Knowles, 598 So.2d 430 (La.App. 2d Cir.1992). The determination of whether the requisite intent is present is a question for the trier of fact. State v. Huizar, 414 So.2d 741 (La.1982); State v. Knowles, supra.

In State v. Murray, supra, this court reiterated its holding in State v. Hudson, 33,357 (La.App.2d Cir.5/10/00), 760 So.2d 591, that sets forth the law applicable to a claim of justifiable homicide because of self-defense:

Self-defense is justification for a killing only if the person committing the homicide reasonably believes he is in imminent danger of losing his life or receiving great bodily harm and that deadly force is necessary to save his life. La. R.S. 14:20(1); State v. Cotton, 25,940 (La.App.2d Cir.3/30/94), 634 So.2d 937; State v. Jones, 600 So.2d 875 (La.App. 1st Cir.1992), writ denied, 92-2351 (La.5/12/95), 654 So.2d 346. The state has the affirmative duty of proving beyond a reasonable doubt that the killing was not in self-defense. State v. Arnold, 30,282 (La.App.2d Cir.1/21/98), 706 So.2d 578.

However, we note that under La. R.S. 14:21, a person who is the aggressor cannot claim the right of self defense unless he withdraws from | I;the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw from the conflict.

For a homicide to be justified, the offender must have had a reasonable belief he was in imminent danger of losing his life or receiving great bodily harm and that the killing was necessary, under the circumstances, to save himself from that danger. La. R.S. 14:20(1); State v. Dozier, 553 So.2d 911 (La.App. 4th Cir.1989), writ denied, 558 So.2d 568 (La.1990).

Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App. 2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).

Manslaughter is a lesser included offense of second degree murder. La. C. Cr. P. art. 814 A(3). A homicide which would otherwise be second degree murder is manslaughter when it is committed in sudden passion or heat óf blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. La. R.S. 14:31. “Sudden passion” or “heat of blood” are not elements of the crime of manslaughter, but are mitigating factors in the nature of a defense which 17exhibit a degree of culpability less than that present when a homicide is committed without them. State v. Scott, 31,379 (La.App.2d Cir.10/28/98), 720 So.2d 415, writ denied, 1999-0170 (La.5/14/99), 741 So.2d 664, reconsideration denied, 1999-0170 (La.9/3/99), 747 So.2d 529; State v. Stewart, 26,168 (La.App.2d Cir.8/17/94), 641 So.2d 1086, writ denied, 94-2363 (La.1/13/95), 648 So.2d 1337. Also, State v. McCray, 621 So.2d 94 (La.App. 2d Cir.1993).

A defendant is required to prove by a preponderance of the evidence that he acted in “sudden passion” or “heat of blood” for a verdict of manslaughter to be appropriate. State v. Lombard, 486 So.2d 106 (La.1986); State v. Robinson, 32,794 (La.App.2d Cir.3/01/00), 754 So.2d 311, writ denied, 2000-0989 (La.3/23/01), 787 So.2d 1008, citing McCray, supra. In reviewing a defendant’s claim that he has met that burden, the appellate court must determine whether a rational trier of fact, upon reviewing the evidence in the light most favorable to the prosecution, could have found that these mitigatory factors had not been established by a preponderance of the evidence. Lombard, supra; State v. Robinson, supra; State v. Lewis, 28,973 (La.App.2d Cir.12/11/96), 685 So.2d 1130, writ denied, 97-0122 (La.5/16/97), 693 So.2d 797. Also, State v. Scott, supra.

Spivey’s argument that this killing was done in self-defense is not supported by the record. The jury heard direct evidence that the victim was shot while he was fleeing from Spivey. The first witness called by the state was university administrator, Curtis Armand, who testifíéd that on the day of the shooting he was driving through the campus on his lunch break. His Istestimony is compelling. He stated that he saw, “four fellows in a fight ... I think it was three and one. I am almost certain.” He then stopped his vehicle, got out, and yelled “Young men, stop fighting ... Cut it out.” He further testified that when he did, the fight broke up and three of the men started running. Armand stated, “And when they ran, I saw a young man who did not run. He went to his car, and he reached down in his car and came up with a gun. I said, Young man, put that gun down’.” Armand testified that Spivey did not turn to look at him or acknowledge that he was there, but instead briskly walked past him. Armand stated that ten seconds later he heard a shot. He further testified that Spivey then came back past him, got in his car and left the scene. Armand recalled that Spivey appeared very calm both before and after the shooting.

Armand had testified that he had not seen the actual shooting because he was standing beside his car. His inability to see the victim being shot was explained by the testimony of Aiesha Dicko. Dicko testified that she saw the victim running away when he then slipped going up a little hill and lost his balance. She testified that while Washington was hunched over, Spi-vey shot him.

The medical examiner who conducted the autopsy explained his findings regarding the angle the bullet entered Washington’s body. He opined that the shooter was not facing the victim and that the shot was not horizontal, but rather at a 20-30 degree downward angle. He testified that the shooter would have to be on the ceiling to achieve this angle if the two men had been standing face-to-face. The testimony of these people shows 19that the victim was not standing facing Spivey when the shooting took place. This evidence controverts Spivey’s position that he fired the shot in self-defense.

The evidence supports the conclusion that Spivey was the aggressor in the fight. Spivey called the participants in the fight, Bridgewater, Theus and Madison, to testify. Bridgewater said that Spivey pushed the victim first. The testimony of these three friends of Washington appears to be very candid. Bridgewater and Theus were forthcoming in the details about how they joined in the fight to assist the victim. It appears that they entered the fight because Washington was only 5'4” and Spi-vey was bigger. They discussed hitting and kicking Spivey while he was on the ground. The record is clear that the fight was a three-against-one brawl and that Spivey lost the fight. The record is also clear that after the fight had ended, the victim was running away from Spivey.

All of the testimony points to the conclusion that the fight could not have lasted over three to four minutes. The shooting took place immediately after the fight, but after Spivey had time to walk a short distance to his vehicle and retrieve his gun. While not much time elapsed between the fight and the shooting, it is the function of the trier of fact to determine whether or not a reasonable person would have cooled off rather than shoot the victim.

The jury obviously chose to believe the testimony of Armand, Bridgewater and Dicko. Their testimony established that Spivey was the aggressor in the incident, that the fight had ended and that he then very | incalmly and methodically shot Washington who had fallen in his attempt to flee Spivey. Thus, the evidence adduced at trial was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Spivey had the specific intent to kill or cause great bodily harm and that the crime was not committed in self-defense. This assignment of error lacks merit.

Motion to Strike Jurors

Spivey argues that three jurors should have been released for cause since one knew the assistant district attorney and had sought legal advice from him, one was a friend of the assistant district attorney’s girlfriend, and another had actively supported the district attorney. The state argues that Spivey is barred from raising this issue as an assignment of error since the adverse rulings were not objected to at the time they were made.

A trial court is vested with great discretion in ruling on challenges for cause, and its rulings should be reversed only when a review of the entire voir dire reveals that the trial court abused its discretion. State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683. Under La. C. Cr. P. art. 800(A), an appellant is barred from raising as error an adverse ruling on a challenge for cause if no objection was made at the time of the ruling. It states:

A. A defendant may not assign as error a ruling refusing to sustain a challenge for cause made by him, unless an objection thereto is made at the time of the ruling. The nature of the objection and grounds therefor shall be stated at the time of objection.

See also State v. Cross, 93-1189 (La.6/30/95), 658 So.2d 683.

The record shows that the defense counsel failed to object after the denial of his three challenges for cause. Nonetheless, our examination of l^the three jurors at issue reveals no error by the trial court or prejudice to the defendant.

Juror Ronnie Sanderson was subjected to voir dire examinations by the trial court, the state, and defense counsel. Sanderson told the trial court that he knew Steven Hearn, an Assistant District Attorney. However, Sanderson stated that there was no “personal, business, family, health, or any other reason why could he could not give the defendant and the state a fair trial in this case and decide this case based solely upon the evidence presented and in accordance with the law.” There is nothing in the voir dire which indicates that Sanderson was not truthful in statement of his ability to be impartial. Consequently, we find no abuse of discretion by the trial court.

Prospective juror Melinda Pratt was challenged because she was friends with one of the prosecutor’s fiancé. Pratt was also subjected to voir dire examinations by the trial court, the state, and defense counsel. She indicated that there was no reason why she could not be fair. Her interaction with the prosecutor was tenuous at best, because they only had limited interaction.

Juror Tommie Jackson was also challenged, based on his alleged friendship with District Attorney Bob Levy. Jackson was also subjected to voir dire examinations by the trial court, the state, and defense counsel. Jackson stated that he has known the District Attorney for several years, and had placed campaign signs supporting Levy in his yard. However, Jackson also stated that he could be fair and impartial.

haWe find no showing of abuse of discretion with the trial court not disqualifying any of the above jurors. Consequently this assignment has no merit.

Batson Challenge

Spivey contends that the court’s failure to sustain the defendant’s Batson challenges made by the defense due to the State’s pattern of using peremptory strikes to eliminate black jurors was manifestly erroneous and an abuse of discretion. He argues that the state’s use of peremptory strikes to eliminate black jurors shows that the state was not using these strikes in a race neutral method. The state argues it sought to have the jurors removed for race-neutral reasons supported by the record.

The United States Constitution prohibits the state from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Louisiana law codifies the Batson ruling in La. C. Cr. P. art. 795(C), which reads:

No peremptory challenge made by the state or the defendant shall be based solely upon the race of the juror. If an objection is made that the state or defense has excluded a juror solely on the basis of race, and a prima facie case supporting that objection is made by the objecting party, the court may demand a satisfactory racially neutral reason for the exercise of the challenge, unless the court is satisfied that such reason is apparent from the voir dire examination of the juror. Such demand and disclosure, if required by the court, shall be made outside of the hearing of any juror or prospective juror.

When a defendant makes a Batson challenge, claiming the state has used peremptory challenges in a manner which violates the Equal Protection Clause, the defendant must first make a prima facie showing that the [^prosecutor has exercised peremptory challenges on the basis of a juror’s race. State v. Jackson, 29,470 (La.App.2d Cir.8/20/97), 707 So.2d 990; State v. Loper, 00-1936 (La.App. 5th Cir.12/26/01), 807 So.2d 316, 323. If the defendant fails to make a prima facie case, then the challenge fails. If a prima facie case is established, the burden shifts to the state to come forward with a race-neutral explanation for its peremptory challenges. Once the prosecutor has satisfied the second step of the Batson review, by providing a race-neutral reason, the trial court then has the duty to determine whether the defendant has established purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Batson v. Kentucky, 476 U.S. at 96-98, 106 S.Ct. at 1722-1724; State v. Green, 94-0887 (La.5/22/95), 655 So.2d 272; State v. Banks, 96-652 (La.App. 5th Cir.1/15/97), 694 So.2d 401, 409. A trial judge’s determination on a claim of purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. State v. Jones, 00-162 (La.App. 5th Cir.7/25/00), 767 So.2d 862, writ denied, 00-2484 (La.6/22/01), 794 So.2d 783.

In State v. Green, supra at 288, the Louisiana Supreme Court discussed how a defendant may establish his prima facie case:

The defendant may offer any facts relevant to the question of the prosecutor’s discriminatory intent to satisfy this burden. Such facts include, but are not limited to, a pattern of strikes by a prosecutor against members of a suspect class, statements or actions of the prosecutor which support an inference that the exercise of peremptory strikes was motivated by impermissible considerations, the composition of the venire and of the jury finally empaneled, and any other disparate impact upon the suspect class which is alleged to be the victim of purposeful discrimination.

114The state need not give an explanation for its use of a peremptory challenge if the trial court does not find that the defense has made a prima facie case, but many trial courts require this to create a complete record. State v. Rose, 606 So.2d 845 (La.App. 2d Cir.1992).

At trial, the defense attorney objected when the state used three peremptory challenges in a row to strike black female jurors. The trial court overruled the initial Batson challenge. A subsequent challenge was renewed when the state moved to strike two more black jurors.

Both at trial and in his argument to this court, Spivey’s counsel concludes that moving to strike three, and ultimately five, black women from the jury is proof that the state was excluding these jurors on race alone.

The defense initially raised the challenge when the state moved to consecutively strike Waleta Cooper, Linda Wright, and Wanda Lewis, who are three black females, from the jury pool. The court suggested, and the defense agreed, to continue the process before argument on the issue. The court later allowed the defense to present its challenge. When the challenge was made, the trial court referenced its notes and supplied what it believed to be non-racial reasons why the jurors would not be acceptable. Specifically, the court found that Waleta Cooper knew the defendant and his family; Linda Wright could not apply a reasonable-doubt standard; and both Wanda Lewis and Wright had heard discussions about this case. He then ruled that the defendant had not made a prima facie showing of discriminatory use of the challenges. The trial court then gave the state an opportunity to put its reasons on the record.

| ifiThe jurisprudence is clear that the “ultimate burden of persuasion as to racial motivation rests with, and never shifts from, the opponent of the peremptory exception.” State v. Tyler, 97-0338 (La.9/9/98), 723 So.2d 939, cert. denied, 526 U.S. 1073, 119 S.Ct. 1472, 143 L.Ed.2d 556 (1999).

A trial judge’s determination on a claim of purposeful discrimination rests largely on credibility evaluations, so those findings are entitled to great deference by the reviewing court. State v. Jones, supra.

In sum, given the deference due the trial court’s determination, and the defendant’s failure to make any argument other than citing bare statistics and the voir dire responses, we find that the trial court’s decision that defendant failed to establish a prima facie case of racial discrimination was not an abuse of discretion.

Denial of Continuance

Spivey further contends that the court’s ruling denying the defendant a continuance based on evidence that was not discovered until the trial had commenced was manifestly erroneous and an abuse of discretion. He argues that the court should have granted a continuance or done an in camera inspection of some recorded statements by witnesses that neither the state nor Spivey knew existed before the trial started. The state argues that Spivey should have sought a recess in order to review the tapes.

La. C. Cr. P. .art. 708 states:

A continuance is the postponement of a scheduled trial or hearing, and shall not be granted after the trial or hearing has commenced. A recess is a temporary adjournment of a trial or hearing that occurs after a trial or hearing has commenced.

11 (While questioning Bridgewater, one of the participants in the fight, the defense’s trial attorney learned that this witness had given a taped statement to the Grambling State University police. Based on the information that evolved during the discussion about this statement, it is apparent that the state was unaware that such a taped statement had been made. The state had provided a written statement made by this witness to the defense attorney.

The defense attorney asked for a continuance. The trial court overruled this request and informed the defense counsel that he was not entitled to recorded statements made by witnesses. The court then instructed the state that it had a continuing obligation to furnish any exculpatory evidence to the defendant. The state indicated that it was unaware that there were any taped statements and the trial continued. After the noon recess, the state reported to the court that tapes did exist but they did not appear to contain any exculpatory information. The state then suggested that the court take a recess to allow the defendant’s trial counsel to listen to the tapes. The defense attorney again sought a continuance to have adequate time to prepare the defense. Instead, the court granted a one and one-half hour recess.

When the court convened later that afternoon, defense counsel then complained that he had not had an opportunity to finish listening to all of the tapes and that he was not sure about the authenticity of the tapes. He further argued that he needed to listen to the tapes before he finished with the testimony of Bridgewa-ter, Theus and Madison to see if the information |17on the tapes contradicted what they had testified to at trial. The court overruled the objection, but allowed the witnesses to be questioned out of order so that the defense counsel could continue listening to the tapes. The following day, defense counsel stated that he had been furnished the tapes, but still had not had an opportunity to listen to all of them. The trial court commenced with the trial.

The trial court was correct to proceed with trial under these circumstances. La. C. Cr. P. art. 723 clearly states that statements of persons other than the defendant are not discoverable. It states:

Except as provided in Articles 716, 718, 721, and 722, this Chapter does not authorize the discovery or inspection of reports, memoranda or other internal state documents made by the district attorney or by agents of the state in connection with the investigation or prosecution of the case; or of statements made by witnesses or prospective witnesses, other than the defendant, to the district attorney, or to agents of the state.

In what appears to be an abundance of precaution, and at the suggestion of the state, the trial court allowed the defense to have these statements. However, three weeks after the trial, we note that the defense attorney still had not finished listening to the tapes. As part of his argument for a new trial, defense counsel stated that the trial court had not given him adequate time to review those statements.

In his argument to this court, Spivey states that the trial court should have conducted an in camera inspection of the tapes so the “defendant would have had an independent review and opinion of whether there was exculpatory or any other relevant evidence contained in the recordings.” 11sThere obviously is no need for a court to conduct an in camera review of this material since it had been given to defense counsel.

The trial court correctly overruled both the request for the continuance and the motion for new trial on this point. The defense counsel has not shown that the material is exculpatory and La. C. Cr. P. art. 723 clearly excludes statements made by witnesses or prospective witnesses. Consequently, this assignment of error has no merit.

CONCLUSION

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: h DREW, J.

text:
    STATE of Louisiana, Appellee, v. Earnest TILLMAN, Appellant.
    No. 38,521-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Lavalle B. Salomon, APLC, Monroe, for Appellant.
    Jerry L. Jones, District Attorney, Brian Harkins, Assistant District Attorney, for Appellee.
    Before STEWART, GASKINS and DREW, JJ.
   h DREW, J.

By bill of information, the state charged Earnest Tillman with two counts of sexual battery, a violation of La. R.S. 14:43.1, punishable by not more than ten years imprisonment at hard labor without benefits. The state agreed to dismiss one count in exchange for defendant’s guilty plea to the other. The court imposed the maximum sentence and denied a timely motion for reconsideration. Defendant argues the sentence is excessive. We affirm.

The matters of record show that on September 5, 2002, defendant, age 18, entered the 11-year-old victim’s bedroom through a window, with her permission. He pulled down her clothing, at least attempted sexual intercourse, then made her touch his penis with her hand. Defendant was interrupted when the victim’s brother entered the room and saw what was happening. Tillman fled through the window. He denied having sex with the child, but could not explain why he fled through the window. He was actually arrested for aggravated rape, owing to the young age of the victim.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full 12compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). Here, the record shows an adequate factual basis for the sentence imposed.

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

Prior to imposing sentence, the court considered a PSI report and noted:

|s* The initial arrest for aggravated rape;
• The crime of conviction did not fully reflect the gravity of the offense committed;
• The defendant pleaded guilty to one of the two sexual battery counts billed;
• The defendant’s apparently low intelligence, as he dropped out of his special education classes in the eighth grade;
• The defendant’s social history;
• The victim’s mother had informed the court the victim had not needed therapy and was coping with the events; and
• This was an extremely serious crime.

The court found defendant was in need of custodial treatment.

On this record, we do not find constitutional error. Defendant sexually abused a very young child, yet received a substantial benefit from the state’s willingness to charge only sexual battery rather than at least an attempted aggravated rape, which the facts would clearly have supported. We find the argument that the sexual act may have been consensual to be disingenuous, especially considering the age of the victim. The sentence imposed, while harsh, is lawful. We find the sentence is neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence. It is not constitutionally excessive.

The conviction and sentence are AFFIRMED.

      . The record is unclear, but apparently the two acts initially alleged by bill of information were that he touched her inappropriately, and then had her touch his genitals. He pled guilty to one of the two initially-billed counts.


author: Ii GASKINS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Alvin Ray OLIVER, Defendant-Appellant.
    No. 38,520-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Hal V. Lyons, Shreveport, for Appellant.
    Paul J. Carmouche, District Attorney, Shenequa Grey, J. Thomas Butler, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   Ii GASKINS, J.

Alvin Ray Oliver appeals from a judgment denying his petition to expunge his criminal record. We affirm.

FACTS

On April 19, 1993, Oliver pled guilty in the First Judicial District Court to one count of felony theft. The minutes of court from that date reflect:

The accused, being present with his counsel, Pam Smart, withdrew his former plea of not guilty and pled guilty to the charge. The Court informed the defendant of his Constitutional rights as per Boykin v. Alabama (see court reporter’s transcript). Whereupon, the defendant was sentenced to be confined at hard labor for a period of eighteen (18) months and committed to the Louisiana Department of Corrections, subject to the conditions provided by law. The Court ordered execution of the jail sentence suspended and the defendant placed on supervised probation for two (2) years with the special conditions (see special conditions of probation). The court informed the defendant of his right to post-conviction relief proceedings.

Oliver successfully completed his probation. On May 1, 1995, he obtained an automatic first offender pardon, effective April 19,1995, under La. R.S. 15:572.

Oliver has been continuously employed in various capacities since 1984. He served eight years in the United States Army, from 1984 to 1992, including one year in Operation Desert Storm in Iraq. After his honorable discharge in 1992, he worked in various capacities in the freight/transportation industry. In 2003, he was in his third year of employment with Shreveport Logistics when he was terminated because of his 1998 felony conviction.

12After his termination, Oliver filed a petition to expunge this conviction; specifically, he sought the actual destruction of the records relating to the offense. The petition was served on the mayor of Shreveport, the Caddo Sheriffs Office and the Caddo District Attorney’s office. Attached as exhibits to the petition were copies of the criminal minutes from 1993, a copy of Oliver’s automatic first offender pardon, a strongly positive letter of recommendation for Oliver from the general manager at Shreveport Logistics, a copy of his honorable discharge from the military and his current résumé.

The court conducted a hearing on the petition on October 13, 2003. An assistant district attorney appeared and voiced no objection to the expungement; however, she noted that the prosecution was not dismissed by the D.A.’s office nor was sentence deferred pursuant to La. C. Cr. P. art. 893. The district court denied Oliver’s petition for expungement, and he now appeals.

LAW AND DISCUSSION

La. R.S. 44:9 E(l)(b) provides:

After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure. Upon the entry of such an order of expungement, all rights which were lost or suspended by virtue of the conviction shall be restored to the person against whom the conviction has been entered, and such person shall be treated in all respects as not having been arrested or convicted unless otherwise provided in this Section or otherwise provided in the Code of Criminal Procedure Articles 893 and 894.

|sLa. C. Cr. P. art. 893 provides, in part:

D. (l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
E. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a felony.

Under La. C. Cr. P. art. 893 D, the court may defer sentencing certain offenders after conviction and, after the successful completion of a term of probation, the court may dismiss the prosecution. However, in Oliver’s case, the judge imposed sentence upon him immediately after accepting his guilty plea. Because the court did not defer sentencing Oliver, his conviction was not and could not have been dismissed by the court under La. C. Cr. P. art. 893 D. Consequently, the provisions of La. R.S. 44:9 E(l)(b) allowing expungement of the record of such a conviction do not apply to Oliver. Moreover, even if the provision did apply, La. C. Cr. P. art. [4893 E states that a dismissal pursuant to a deferred sentence cannot form the basis for destruction of the record of the arrest and prosecution.

Accordingly, Oliver is not entitled to ex-pungement or destruction of any record under these provisions.

CONCLUSION

The judgment of the district court is affirmed. Costs of this appeal are assessed to Mr. Alvin Oliver.

AFFIRMED.


author: I,GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Arthur JENKINS, Appellant.
    No. 38,534-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Pamela S. Moran, Louisiana Appellate Project, for Appellant.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, John M. Lawrence, Assistant District Attorneys, for Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   I,GASKINS, J.

The defendant, Arthur Jenkins, appeals as excessive his sentence to serve five years at hard labor following his plea of guilty to possession of cocaine. For the following reasons, we affirm the conviction and sentence.

FACTS

On August 10, 2001, the defendant was a passenger in a vehicle that was stopped for a traffic violation in Cullen, Louisiana. A consent search disclosed two bags containing a total of ten grams of marijuana and one rock of crack cocaine. The other occupants of the vehicle claimed that the contraband belonged to the defendant. The defendant was arrested on charges of possession of cocaine, possession of marijuana with intent to distribute, and possession of drug paraphernalia.

The state charged the defendant with possession of cocaine and possession of marijuana with intent to distribute. The former charge, a violation of La. R.S. 40:967, at the time of the offense was punishable by imprisonment at hard labor for no more than five years. The latter charge, a violation of La. R.S. 40:966, was punishable by imprisonment for not less than five years nor more than thirty years. The paraphernalia charge was not formally lodged by the DA’s office.

On July 25, 2003, the defendant entered a plea of guilty to possession of cocaine. In exchange for the plea, the marijuana charge was dismissed. After ordering a presentence investigation (PSI) report, the court imposed the maximum prison sentence of five years and denied a timely motion for reconsideration of sentence. The defendant appealed, arguing that the sentence is excessive.

| .DISCUSSION

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1983).

The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864. Here, the record shows an adequate factual basis and adequate consideration of the guidelines for the sentence imposed.

The second prong of the test of whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a 1 .purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

As a general rule, maximum sentences are appropriate only in cases involving the most serious violation of the offense and the worst type of offender. However, in cases where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

Prior to imposing sentence, the court reviewed a PSI report and considered the facts of the case. The defendant was 49 years old at the time of the present offense. He completed the tenth grade and worked at a grocery store for 12 years. His marriage of five years had produced two children, both of whom were adults.

The defendant had been convicted in 1980 for second degree battery. He was charged in 1997 with aggravated battery, but was allowed to plead j 4guilty to simple battery. The court noted that the defendant was a second felony offender and that he had a history of violent behavior. The court determined that a lesser sentence would deprecate the seriousness of the offense and that there was a likelihood of continued criminal conduct if the defendant were granted probation.

On this record, we do not find constitutional error. The defendant’s plea bargain substantially reduced his sentencing exposure. The offense of conviction does not adequately describe his criminal conduct. The sentence imposed is lawful. Considering the defendant’s record, his social background, and the totality of the circumstances of this case, we find that the sentence imposed is neither grossly disproportionate to the severity of the offense of conviction nor shocking to our sense of justice. There is no showing of an abuse of the district court’s discretion in the imposition of this sentence. It is not constitutionally excessive.

ERROR PATENT

The defendant also requested that this court review the record for errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. State v. Bryant, 29,344 (La.App.2d Cir.5/7/97), 694 So.2d 556. No such errors are noted.

CONCLUSION

The conviction of the defendant, Arthur Jenkins, for possession of cocaine, and sentence to serve five years at hard labor are affirmed.

AFFIRMED.


author: J^MOORE, J.

text:
    M. Tahir QAYYUM, M.D., Plaintiff-Appellant v. MOREHOUSE GENERAL HOSPITAL, Defendant-Appellee.
    No. 38,530-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 12, 2004.

      Rountree Law Offices by James A. Rountree, for Appellant.
    L. Douglas Lawrence, Tikisha Y. Smith, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   J^MOORE, J.

Plaintiff, M. Tahir Qayyum, A Professional Medical Corporation, filed suit against Morehouse General Hospital for an accounting of the revenues the hospital collected pursuant to a contract in which the plaintiff agreed to operate a family practice clinic in the hospital for one year. The trial court granted the hospital’s exception of prescription and its motion to strike a claim for attorney fees. Plaintiff filed this appeal alleging that the court erred when it applied the three-year prescriptive period of Louisiana Civil Code Article 3494 to the instant case. For the following reasons, we reverse and remand for further proceedings.

FACTS

On September 26, 1997, Morehouse Parish Hospital Service District d/b/a Morehouse General Hospital (“Morehouse General”) and M. Tahir Qayyum, A Professional Medical Corporation (“PMC”) entered into a one-year contract in which PMC agreed to operate a hospital-based family practice clinic by providing a board certified physician, namely Dr. Qayyum, to work therein on a full-time basis. PMC was responsible for staffing the clinic with other qualified physicians during those times Dr. Qayyum was not available. Under the terms of the agreement, PMC agreed that the hospital would bill and collect all professional fees and charges for services it rendered. Morehouse agreed to keep and maintain accurate accounting records reflecting all services rendered and all fees billed for professional services. Morehouse would cover the expenses of the clinic by providing the necessary equipment, staff and supplies. The contract provided that all employees of the family practice clinic, except Dr. LQayyum, would be employed by the hospital.

In exchange for PMC’s operation of the clinic, Morehouse agreed to pay PMC $130,000 in $10,000 installments, the first at the time of execution of the contract and then another every 30 days thereafter. Additionally, Section 8 of the contract, entitled, “Accounting,” provided the following:

PMC shall provide to HOSPITAL all billing and collection information not discovered through the normal course of clinic and hospital procedures. HOSPITAL will prepare and shall provide PMC a monthly financial report utilizing the accrual basis of accounting, as required for healthcare organizations. In addition, HOSPITAL will modify the department income statements prepared using the accrual basis of accounting to show cash collections for the purpose of applying provisions of this paragraph contained in the last sentence. The funds received by HOSPITAL from PMC’s practice which are assigned to HOSPITAL hereby will be calculated and should those funds collected exceed the expenses incurred by HOSPITAL to, for and on behalf of the clinic and PMC set forth herein, then at that point, PMC will receive in addition to the funds hereinabove described in paragraph 3A, ninety (90%) percent of all funds collected in excess of the costs paid by HOSPITAL.
Expenses accounted for above, shall be calculated and apportioned to PMC according to Federal and State guidelines for classification of expenses and as referenced in attached exhibit B. Distributions that may be owed to PMC, as calculated above, shall be reconciled quarterly and any excess shall be paid quarterly.

Hence, according to the quoted provision, after Morehouse accounted for its expenses, which are listed in Exhibit B and include such items as salaries for clinic personnel and employee benefits, utilities, office equipment and supplies, payments for the physician, worker’s compensation and liability insurance, in a word, all operating costs, Dr. Qayyum and Morehouse agreed to split any profits on a 90/10 basis. The hospital’s | ¡¡accounting of the profits, if any, was to be made quarterly.

The term of the contract was twelve months, ending at midnight on September 26,1998.

On October 31, 2002, more than three years after the termination of the contract, PMC filed suit against Morehouse seeking an accounting pursuant to Section 8 quoted above. The petition alleged that More-house breached its obligation to provide the accounting information called for in the contract and to pay plaintiff 90% of all funds collected in excess of the costs paid by the hospital. Plaintiff also alleged that Morehouse acknowledged its obligation in a letter dated May 4, 1999, but failed to perform. PMC’s petition prayed that Morehouse be ordered to make a full accounting of the funds collected and ordered to pay plaintiff in accordance with the contract terms. PMC also prayed for an award for attorney fees incurred for having to bring the action.

Morehouse responded by filing an exception of prescription for the main demand and an exception of no cause of action and a motion to strike the demand for attorney fees. After argument on May 22, 2003, the district court took the matter under advisement to allow the parties additional time to file supplemental memo-randa. On July 15, 2003, the trial court signed a judgment granting the exception of prescription and motion to strike, effectively dismissing the plaintiffs suit. This appeal followed.

DISCUSSION

When a peremptory exception is pleaded prior to the trial of the case, evidence may be introduced to support or controvert any of the objections Upleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. Creighton v. Bryant, 34,893 (La.App. 2 Cir. 6/20/01), 793 So.2d 275. If the parties introduce evidence to support or controvert an exception, then the trial court’s factual determinations based on such evidence are subject to the manifest error standard of review. However, if the trial court made a legal error which interdicted the fact-finding process, the reviewing court conducts an independent review of the record. Brown v. Avoyelles Parish School Bd., 2003-796 (La.App. 3 Cir. 12/10/03), 861 So.2d 773.

The parties submitted no evidence at the hearing on May 22, 2003, although More-house attached a copy of the agreement to its memorandum in support of the exceptions. See Exhibit A, (“Agreement”). The court ruled that the plaintiffs cause of action had prescribed under the three-year prescriptive period provided under La. C.C. art. 3494. Subsection (1) of Article 3494 provides:

The following actions are subject to a liberative prescription of three years:

(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board;

In its written reasons, the trial court adopted the defendant’s arguments by reference and sustained the exception. Morehouse had argued that the three-year prescriptive period of Civil Code article 3494 applied in this instance rather than the ten-year prescriptive period of Civil Code particle 3499 generally applicable to personal actions ex contractu because the plaintiff was seeking compensation for medical services rendered. Morehouse argued that Dr. Qayyum’s relationship to the hospital was an employment relationship, and, although the claim was couched as an action for an accounting under the terms of a contract, it was simply a claim for additional wages or compensation. To bolster its argument that Dr. Qayyum was an employee, Morehouse cited a passage taken from a provision in the Code of Federal Regulations regarding regulation of hospital contracts with physicians.

PMC argues on appeal that the trial court erred in finding that its cause of action is governed by the three-year liber-ative prescription period set forth in La. C.C. art. 3494(1). It contends that its petition is not a claim for compensation or wages for services rendered. Instead, PMC contends that Morehouse collected its money, then refused to account for it in violation of the contract. Nor is this an action for payment of fees, inasmuch as the fees have already been paid by the patients treated by PMC. Unlike a suit for past wages or professional fees, its petition states a claim for an accounting of the monies billed and collected by Morehouse arising out of the clinic operations and for which Morehouse has failed to account. PMC contends that an action for an accounting is subject to the ten-year libera-tive prescription period found in La. C.C. art. 3499.

In determining the applicable prescriptive period, the court is guided by the well-settled principle that the character of a cause of action as |fidisclosed in the pleadings determines the prescriptive period applicable to that action. SS v. State ex rel. Dept. of Social Services, 2002-C-0831 (La.12/4/02), 831 So.2d 926. As outlined above, the relief sought by PMC’s petition is for specific performance as a result of Morehouse’s breach of its contractual obligation to provide an accounting of the net profits, if any, from the charges collected and payment according to the 90/10 split called for in the contract. The remedy sought is set forth in the petition as an accounting and payment, if any, in accordance with the contract.

The trial court concluded that the nature of the plaintiffs claim was a claim for additional compensation based solely upon the arguments. Because there was no evidence introduced at the May 22, 2003 hearing to show an employment relationship between PMC or Dr. Qayyum and Morehouse, except defendant’s reference to some language of questionable relevance and import from a CFR provision which was not put into evidence, we conclude that there was no evidence to support this finding. We note that the Agreement itself expressly excludes Dr. Qayyum as an employee and also contains a disclaimer that the agreement is not a joint venture or partnership. See Agreement, Sections 9 & 10. Nevertheless, the existence of an independent contractor agreement is not necessarily dispositive of the issue of whether a doctor is an independent contractor, as opposed to an employee of a hospital, and courts will inquire as to the real nature of the relationship and the degree of control exercised or ability of ^control by the hospital over the doctor’s activities. Powell v. Fuentes, 29,338 (La.App. 2 Cir. 4/2/97), 693 So.2d 15, appeal after remand 34,666 (La.App. 2 Cir. 5/9/01), 786 So.2d 277, writ denied 2001-1675 (La.9/21/01) 797 So.2d 674; Prater v. Porter, 98-1481 (La.App. 3 Cir.1999), 737 So.2d 102; Suhor v. Medina, 421 So.2d 271 (La.App. 4 Cir.1982).

In Duer & Taylor v. Blanchard, Walker, O’Quin & Roberts, 354 So.2d 192 (La.1978), the Louisiana Supreme Court held that where an attorney retained in a case retains another attorney to assist him, the agreement constitutes a joint venture or partnership with respect to division of the fee. Each attorney shares the right to participate in the fund resulting from the payment of the fee by the client. Id. at 195. Accordingly, in that case the court concluded that a suit by one attorney against the other attorney to recover a portion of the collected fee pursuant to the agreement is not a suit for the recovery of attorney’s fees governed by the three-year prescriptive period of former Civil Code article 3538, but rather was one for breach of the agreement to share in the fund resulting from payment of the fee and governed by the ten-year prescriptive period of former Civil Code article 3544. Id.

In Marek v. McHardy, 234 La. 841, 101 So.2d 689 (1958), a physician sued to recover damages he sustained for breach of an agreement to give him a ten percent interest in a future medical partnership. The defendants filed an exception of prescription citing numerous cases decided under former Civil Code article 3538, which provided for a three-year prescriptive period for actions by physicians for payment for professional | ^services. The supreme court rejected the cases cited reasoning:

In each of them the bill for the services rendered by the physician or the attorney had not been paid and the suit was for the recovery of the bill. Here the plaintiff is not suing to recover the fees charged by the Browne-McHardy Group for the services he rendered to the patients of the clinic. On the contrary, his suit is one for damages sustained by defendant’s breach of contract under which he claims the right to have participated in a partnership fund which resulted from the payment of fees by the patients of the Browne-McHardy Clinic. The applicable prescription is not three years but that of ten years.... 234 La. at 850-51, 101 So.2d at 692.

Hence, in both Marek and Duer, the supreme court found that the relationship between the parties, which it found in those cases to be that of joint venturers or partners, to be dispositive of the prescription claim.

More recently, however, the Fourth Circuit in Parry, M.D. v. Administrators of Tulane Educational Fund, 2002-0382 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, writ denied, 2002-2478 (La.12/19/02) 833 So.2d 346, distinguished Marek and Duer in a suit by a physician to recover additional compensation allegedly due under an agreement involving income from Tulane Medical School faculty generated from services rendered at Charity Hospital and Medical Center. The agreement, styled as the “FPP Agreement,” was characterized by the court as a “cooperative venture” which “allowed each faculty physician to practice medicine and obligated Tulane to bill for and account to the physician for his income generated from professional services.” Id. at 31. When Dr. Parry discovered that Tulane had not tunneled income generated from his and other physicians’ professional services at Charity Hospital through the FPP, this suit followed. The trial court, however, granted Tulane’s motion for |flsummary judgment based upon prescription of three years 1 under Civil Code article 3494(1) as a claim for additional compensation. The court distinguished Marek and Duer on grounds that those cases involved joint ventures for profit, whereas the FPP agreement was a cooperative’ faculty group practice agreement,” and as such, was “organized for the purpose of rendering economic services, without gain to itself, to shareholders or members who own and control it.” Id. at 37-38.

Parry appears to be distinguishable from the instant case in that Tulane Medical Center, unlike Morehouse in this instance, was not entitled to share in the fees it collected for the faculty physicians.

Defendant correctly argues that it is the nature of the claim and not the mere existence of a contract that determines the appropriate prescriptive period. Schoen v. Walling, 31,598 (La.App. 2 Cir. 2/24/99), 728 So.2d 982. Morehouse cites Grabert v. Iberia Parish School Board, 93-C-2715 (La.7/5/94), 638 So.2d 645, in support of its argument that Dr. Qayyum is seeking remuneration for his services as an employee of Morehouse. In Grabert, tenured Iberia Parish School Board employees filed suits claiming that the Board breached their contracts by paying them less wages than they were due. The suits sought recovery of wages allegedly earned by the employees more than three years before the filing of the suits. The trial court granted a partial summary judgment on the exception of three-year prescription, but the court of appeal reversed on grounds that the suit was a personal action for breach of contract subject to ten year prescription. Reversing, the Louisiana Supreme Court made the following observation |inregarding the plaintiffs’ contention that their cause of action was one for breach of contract and not for past due wages:

The answer appears to be simple enough. A petition claiming breach of contract by the payment of wages less than what is due and seeking judgment for the underpaid wages is clearly a cause of action asserting the right to recover unpaid wages. Breach of contract is not a free standing cause of action. It is a legal premise, or principle, which gives rise to the right to claim some substantive remedy at law. Here that remedy is the recovery of past due wages.

Because the relationship between PMC and Morehouse is not clearly an employment relationship, Grabert is factually distinguishable in this instance. Whether PMC was an employee of Morehouse must be judicially determined based upon well-established jurisprudential factors. Powell v. Fuentes, supra. In the present case, the record of evidence does not clearly demonstrate that PMC’s relationship and the nature of the claim is based upon an employment relationship as claimed by Morehouse. Nor does the record clearly demonstrate a cooperative non-profit relationship, or a joint venture or special partnership.

CONCLUSION

For the foregoing reasons, we conclude that the trial court did not have enough evidence to apply article 3494(1) and erred in sustaining the exception of prescription. Accordingly, the judgment of the trial court is reversed. We remand to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . La. C.C. art. 3499 provides: "Unless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years.”

      . A joint venture is defined as resulting from "the undertaking by two or more persons to combine their property or labor in the conduct of a particular line of trade or general business, for joint profits, creating the status of partnership.” Parry, M.D. v. Administrators of Tulane Educational Fund, 2002-0382 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, writ denied, 2002-2478 (La.12/19/02) 833 So.2d 346.