author: hTERRI F. LOVE, Judge.

text:
    STATE of Louisiana v. Hamilton N. FERRAND.
    No. 2003-KA-1746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2004.

      Eddie J. Jordan, Jr., District Attorney, Nick Orechwa, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    William R. Campbell, Jr., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R.' BAGNERIS SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   hTERRI F. LOVE, Judge.

On January 16, 2003, the State filed a bill of information charging Hamilton N. Ferrand with illegal possession of a stolen automobile worth more than $500, in violation of La. R.S. 14:69. At his arraignment on January 23rd he entered a plea of not guilty. However, after trial on March 13th, a six-member jury found Mr. Ferrand guilty as charged. He was sentenced on May 19th to serve two years at hard labor. His motion for an appeal was granted. We affirm for the following reasons.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

At trial, Ms. Renette Hall, owner of The Louisiana Weekly, testified that her company owns three vehicles. On December 15, 2002, as she was leaving her place of business about 7:30 p.m., she noticed two company trucks were parked beneath the overhang of the building. One bore a company logo and the other did not. The next morning at 7:45 when she arrived at work; only the truck with the company logo was still parked there. Ms. Hall immediately called her husband and her brother, both of whom work for the paper, to ascertain whether they had given the key to the truck to anyone. When she found that they had not issued the key, she called the police to report the theft. Ms. Hall explained that the trucks are used to maintain the news boxes around the city, and various 1 ¡.tools needed for maintenance are kept in the trucks. Ms. Hall identified the truck in pictures shown to the jury and pointed out that the steering column had been broken in the theft. A flashlight and a bag of equipment, items normally kept in the truck, were on the seat. A coat hanger was also there. Ms. Hall testified that she did not know Mr. Ferrand and never gave him permission to use her company truck. The truck was valued at $4,500.

Officer Jamye Freeman testified that she was on patrol in a marked police car about 1 a.m. on December 17, 2002 when she noticed a parked white truck with its windshield wipers on and its engine running. The door on the driver’s side was ajar. She saw the defendant’s head “pop up over” the truck as she turned into a nearby driveway. Once she began to turn, he started walking away from the truck. She detained him and conducted a field interview. She was suspicious because usually no one is out at that time of the morning in the little strip mall where he was parked. A car was parked next to the truck, and its engine was running and dew was on it. When she looked in the truck and saw the steering column had been broken, she entered the information about the truck in the NCIC computer and found that the truck had been stolen. She arrested the defendant and gave him his Miranda rights. No one else was in the parking lot with the defendant, but he told the officer that another man had been at the scene and left. She testified that the defendant told her he was a mechanic and had driven the truck there to make repairs on the car parked next to the truck.

DISCUSSION

Before addressing the assignment of error, we note an error patent in that the record does not reflect that the trial court ruled on defendant’s motion to reconsider his sentence. When defense counsel made an oral motion to reconsider immediately after sentence was pronounced and stated that a written motion would 13be filed the next day, the trial court did not respond, and there is no indication in the record that the judge granted or denied the written motion to reconsider.

While the failure to rule on a motion to reconsider sentence would preclude review of a defendant’s sentence, defendant here does not seek review of his sentence. Therefore, failure to rule on the motion to reconsider sentence does not preclude review of a defendant’s conviction. State v. Hailey, 2002-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564; State v. Foster, 2002-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74; see also State v. Davis, 2000-0275 (La.App. 4 Cir. 2/14/01), 781 So.2d 633 (conviction affirmed, remanded for ruling on motion to reconsider); State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88 (conviction affirmed, remanded for ruling on motion to reconsider).

In a single assignment of error, the defendant argues that the evidence is insufficient to support his conviction. The standard for reviewing a claim of sufficiency of the evidence is well settled. Simply stated, all evidence, direct and circumstantial, must meet the reasonable doubt standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). See State v. Jacobs, 504 So.2d 817 (La.1987).

14The defendant was convicted under La. R.S. 14:69, which provides in pertinent part:

Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

The defendant contends that the State failed to prove two elements of the offense: that he had possession of the truck and that he knew the truck had been stolen.

Mr. Ferrand points out that he was never seen inside the truck; he was outside an open door of the vehicle. However, in order to support a conviction for possession of a stolen vehicle, the State is not obligated to prove “actual” possession. Such a conviction may be supported by “constructive” possession, which exists when the item possessed in within the defendant’s dominion or control. State v. Mercadel, 503 So.2d 608 (La.App. 4 Cir. 1987). In Mercadel the defendant was apprehended while standing behind the raised trunk of a stolen car. He dropped a ring of keys, which included the key to the car, and a stereo speaker installed in the trunk on seeing the police officer. Thus, this Court concluded that he was in constructive possession of the trunk and therefore the car itself.

In the case at bar, the défendant was standing in the open door of the driver’s side of a truck with the windshield wipers and the engine running. The vehicle’s steering column was broken. On seeing the marked police car, the defendant began to walk away. Considering the condition of the truck, the defendant’s position in relation to it, and his initial response on seeing the police, we find he had constructive possession of the vehicle.

| RMr. Ferrand next maintains that there was no evidence that he knew the truck was stolen. In State v. Thomas, 2002-1523 (La.App. 4 Cir. 2/5/03), 840 So.2d 25, this Court considered a similar issue. In Thomas, two of the three defendants, convicted of possession of a stolen car, argued on appeal that the evidence was insufficient to prove that they knew the car was stolen. This Court concluded that the driver of the vehicle must have known it was stolen because the steering column was broken and there was no key in the ignition. However, the second defendant was a passenger in the back seat, and this Court held that because there was no other damage to suggest theft, the evidence did not support a finding that she knew or should have know the vehicle was stolen. Similarly in State v. Wilson, 544 So.2d 1300 (La.App. 4 Cir.1989), evidence that the passenger side door lock was popped out and the steering column was broken was sufficient to prove that a passenger in the front seat should have known that the vehicle was stolen.

On the other hand, in State In Interest of H.N., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, the evidence was insufficient to establish that juveniles were guilty of unauthorized use of a movable where there was no damage to the steering column or doors or windows, and a key was in the ignition of the car. Likewise, in State in Interest of O.B., 559 So.2d 31 (La.App. 4 Cir.1990), the State failed to prove that juveniles riding in a stolen car had knowledge of the theft where they were in the back seat and the steering column was broken on the left side and a key was in the ignition.

In the case at bar, the truck’s steering column was obviously broken, no key was in the ignition, and the engine was running. The self-serving story the | (¡defendant told the police officer about another man being present and then suddenly vanishing is unreasonable and suggests guilty knowledge.

CONCLUSION

Viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

Accordingly, Mr. Ferrand’s conviction is affirmed, and the matter is remanded for a ruling on the motion to reconsider the sentence.

AFFIRMED.

      . As we noted in State v. Major, 2002-0133, p. 7 (La.App. 4 Cir. 10/2/02), 829 So.2d 625, 631-32, n. 5:
      In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Scott, 97-0028 (La.App. 4 Cir. 3/18/98), 709 So.2d 339. However, an appellate court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). An appellate court is not permitted to consider just the evidence most favorable to the prosecution, but it must consider the record as a whole since that is what a rational trier of fact would do. State v. Harge, 98-1321 (La.App. 4 Cir. 2/17/99), 730 So.2d 983. If a rational trier of fact could disagree as to the interpretation of the evidence, the view of the rational trier of fact of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall, supra. An appellate court is not called upon to determine if it believes the witnesses or whether the conviction is contrary to the weight of the evidence. State v. Smith, 600 So.2d 1319, 1324 (La.1992).


source: Caselaw Access Project

author: | PEATROSS, J.

license: Public Domain

text:
    LINCOLN BUILDERS, INC., Plaintiff-Appellant v. RAINTREE INVESTMENT CORPORATION THIRTEEN, et al., Defendants-Appellees.
    No. 37,965-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 28, 2004.

      Storms & Storms, by Richard R. Storms, Tyler G. Storms, Ruston, for Appellant.
    Cook, Yancey, King & Galloway, by Curtis R. Shelton, Shreveport, for Cypress Shadows Apartments II, Raintree Investment Corp. Eighteen & Joyce H. Carey.
    Dawkins & Carter, by Robert G. Daw-kins, Ruston, for Cypress Shadows Apartments I and Cypress Shadows Apartments II.
    Vinson & Elkins, L.L.P., by George R. Murphy, III, Kathryn Lynn Hays, Richard J. Reynolds, for Cross Country Management, Inc.; Raintree Investment Corp. Thirteen; Esta Irene Desadier; and Edward Desadier.
    Lewis Pace, In Proper Person.
    Before BROWN, PEATROSS & LOLLEY, JJ.
   | PEATROSS, J.

This appeal arises from a trial court judgment denying Lincoln Builders, Inc.’s (“Lincoln Builders”) motion to lift a court-ordered stay in its lawsuit against Defendants, Raintree Investments Corporation Thirteen, Raintree Investments Corporation Eighteen, Cypress Shadow Apartments I, A Limited Partnership, Cypress Shadows Apartments II, A Limited Partnership, and various individuals. Lincoln Builders now appeals the judgment of the trial court. For the reasons stated herein, we affirm.

FACTS

On December 29, 1998, Lincoln Builders filed a lawsuit against the aforementioned defendants alleging that they failed to make payment on contracts for the construction of two apartment complexes. Subsequently, on June 8, 2000, Lincoln Builders and the defendants filed a joint motion and order with the trial court, which provided in pertinent part:

On the joint motion of Lincoln Builders, Inc., Federal Insurance Company, Cypress Shadows Apartments, I, A Limited Partnership, Raintree Investment Corporation Thirteen, Esta Irene Desa-dier, Lewis Pace, Cypress Shadows Apartments, II, A Limited Partnership, Raintree Investment Eighteen, and Joyce Carey, through their undersigned counsel, as evidenced by the signature of their respective undersigned attorneys of record,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:
III. Lincoln Builders, Inc., Cypress Shadows Apartments, I, A Limited Partnership, Raintree Investment Corporation Thirteen, Cypress Shadows Apartments, II, A Limited Partnership and Raintree Investment Corporation Eighteen shall participate in a mediation of the dispute pending between them, which mediation shall be held in Ruston, Louisiana; the parties will select a mutually agreeable mediator within two weeks from the entry of this order;
IJV. This lawsuit shall be stayed in its entirety and as to all parties herein pending the conclusion of the aforesaid mediation and the arbitration described hereinafter;
V. In the event that the aforesaid mediation does not result in the resolution of the disputes between the parties to this lawsuit, Lincoln Builders, Inc., on the one hand, and Cypress Shadows Apartments, I, A Limited Partnership, and Cypress Shadows Apartments, II, A Limited Partnership, on the other hand shall participate in the arbitration that has been commenced by Lincoln Builders, Inc. with the American Arbitration Association, and each of the parties shall, to the extent that it has not done so, file within thirty (30) days of the conclusion of the aforesaid mediation, its demand for arbitration of any and all claims, rights and causes of action which are required to be arbitrated pursuant to the contracts existing between the parties;
VI. All rights, defenses and exceptions of all parties to this lawsuit, including any exceptions and objections to venue, shall be preserved for determination after the arbitration is concluded and an award is or is not rendered therein, provided, however, that any award made in the arbitration shall be binding in accordance with Louisiana law.

After an unsuccessful attempt at mediation, the matter proceeded to arbitration before the American Arbitration Association (“AAA”). As set forth in the arbitration agreement, three parties were to arbitrate their claims, Lincoln Builders, Cypress Shadows Apartments I and Cypress Shadows Apartments II (hereinafter Cypress Shadows Apartments I and Cypress Shadows Apartments II referred to as “Defendants”).

The parties first asked the AAA to hold the arbitration in abeyance pending an agreement between them. The AAA agreed to hold the matter in abeyance for a limited time. Subsequently, the AAA sent a letter, dated July 17, 2002, to all parties, stating, in pertinent part, that:

|sWe note the parties were previously billed $23,933 for estimated Arbitrator fees and expenses. However, since the hearing was cancelled, we ask that each party remit payment of $250.84 to the-Association to cover Arbitrator fees and expenses incurred thus far.

The AAA wrote another letter to all parties on December 16, 2002, notifying them that it had not received the payment of $250.84 per party to cover arbitrator compensation incurred up to that point and that, if the payment was not received by December 30, 2002, the case would be considered closed. None of the parties paid any part of their bills owed to the AAA. On January 9, 2003, the AAA closed the case and dismissed the arbitration, citing lack of payment of its fees.

Following the dismissal of the arbitration, Lincoln Builders filed with the trial court a motion to lift the stay on the lawsuit, arguing that the mediation and arbitration had terminated without a resolution of the issues; and, hence, Defendants had waived their right to arbitrate. The parties in the instant case dispute the amount of the arbitration fees and expenses at issue and which party is responsible for those fees and expenses. Lincoln Builders asserts that the AAA presented each of the three parties involved with a bill for $23,933, for a total of $71,799, that had to be paid before the arbitrators would hear the case. It contends that, when it learned that Defendants did not pay their bills, it refused to pay its bill. Lincoln Builders alleges that it would have had to pay the entire $71,799 in order to keep the case open.

|4The motion to lift the stay was opposed by Defendants. Defendants argue that Lincoln Builders provided no evidence that the AAA had requested Lincoln Builders to pay the entire amount of expenses for all parties involved in the arbitration or that it was required to pay any amount, other than the amount of $250.84, in order to proceed in the arbitration. Defendants further contend that Lincoln Builders did not follow the proper procedure when dealing with arbitration, as set forth in La. R.S. 9:4203, which provides:

The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. Five days’ written notice of the application shall be served upon the party in default. Service shall be made in the manner provided by law for the service of a summons.
The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.
If no jury trial is. demanded, the court shall hear and determine the issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of the issue, and upon such demand the court shall issue an order referring the issue or issues to a jury called and empaneled in the manner provided by law.
If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall issue an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

| .^Defendants urge that this statute provides the proper remedy for Lincoln Builders in that it must petition the trial court for an order directing that the arbitration proceed in the manner provided for in the arbitration agreement.

The trial court rendered judgment denying Lincoln Builders’ motion to lift the stay, finding that the stay should not be lifted because Lincoln Builders did not comply with La. R.S. 9:4203, and, further, because Esta Irene Desadier, one of the original defendants in the lawsuit, had filed for bankruptcy and the bankruptcy court had ordered a stay covering any claims filed against her. Lincoln Builders now appeals, raising the following assignments of error (verbatim):

1. The honorable trial judge failed to recognize that the personal bankruptcy of Irene Desadier, an alleged co-debtor, does not affect non-bankrupt co-defendants and does not prevent further proceedings against all other parties in State Court; and
2. The honorable trial judge failed to recognize that a party that obtains an order compelling arbitration and then refuses to pay its portion of fees and expenses, and then does nothing for a significant period of time to effect that arbitration, thereby waives its right to arbitrate, and the order compelling arbitration should be lifted and the case allowed to continue in State Court.

DISCUSSION

We will first discuss Lincoln Builders’ second assignment of error. Lincoln Builders argues that Defendants have waived their right to arbitrate due to their delays and their refusal to pay their share of the arbitration fees and costs. It asserts that, because Defendants have waived their right to arbitrate, our court must lift the stay of the lawsuit against Defendants and the other parties it originally sued. We do not agree.

| (¡Under Louisiana law, a party who has agreed to arbitrate a claim against another party must abide by that agreement. La. R.S. 9:4201 provides, in pertinent part:

[A]n agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Lincoln Builders and Defendants agreed to arbitrate this matter. This agreement is irrevocable, unless certain grounds exist to terminate it, none of which exist in this case.

The parties are required, therefore, to resolve their dispute through arbitration, unless a party waives their right to arbitrate the matter. Waiver of arbitration has been defined by our supreme court as a “voluntary and intentional relinquishment of a known claim.” Standard Company of New Orleans, Inc. v. Elliott Construction Company, Inc., 363 So.2d 671 (La.1978). Defendants have not voluntarily and intentionally relinquished their right to arbitrate.

In Louisiana, waiver of arbitration is not a favored finding and there is a presumption against it. Lorusso v. Landrieu Enterprises, Inc., 02-2346 (La.App. 4th Cir.5/21/03), 848 So.2d 656. A party asserting waiver bears a heavy burden of proof to show that the opponent has waived a right to arbitrate. Electrical & Instrumentation Unlimited, Inc. v. McDermott International, Inc., 627 So.2d 702 (La.App. 4th Cir.1993). There is a strong policy in Louisiana favoring arbitration when it has been agreed to by the parties. Id. Courts in Louisiana have found waiver of arbitration l7only in extreme cases. Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756 (La.1982). Even a delay in filing the demand for arbitration would not constitute a waiver of the right to demand arbitration. Id.

In Louisiana jurisprudence, the waiver of arbitration has been limited to those cases where a party insisting on arbitration abandoned its right to arbitration when it resorted to judicial remedies or allowed a significant period of time to elapse before demanding arbitration. Not even the mere answering of a judicial demand, however, has constituted a waiver of arbitration. Matthews-McCracken Rut-land Corp., supra. The cases cited by Lincoln Builders, for example, hold that a party who insists on arbitration will have waived its right to arbitrate when it resorted to judicial remedies or it waited too long to demand arbitration. See Hospital Service District No. 3 of the Parish of LaFourche v. Fidelity & Deposit Company of Maryland, 99-2773 (La.App. 1st Cir.1/16/01), 809 So.2d 145, writ denied, 01-0679 (La.4/27/01), 791 So.2d 639; Sim v. Beauregard Electric Cooperative, Inc., 322 So.2d 410 (La.App. 3d Cir.1975); Simpson v. Pep Boys-Manny, Moe & Jack, Inc., 03-0358 (La.App. 4th Cir.4/10/03), 847 So.2d 617; Francis I. duPont & Company v. McMikle, 230 So.2d 677 (La.App. 2d Cir.1970). We find these cases to be inapplicable to the instant case. In the case sub judice, Defendants are the parties insisting on arbitration. Defendants have not resorted to judicial remedies, nor did they wait a significant amount of time to demand arbitration; and, consequently, they have not abandoned or waived their right to arbitrate. Failing to pay | ¡¡arbitration fees, by itself, does not constitute waiver of the arbitration agreement.

Lincoln Builders argues that it is without a remedy in this case and that it has been prejudiced by the delays. That is simply incorrect. Lincoln Builders’ proper remedy in this case is to follow the arbitration procedures set forth in La. R.S. 9:4203. We find no proof in the record that Lincoln Builders would have been required to pay the amount of $71,799 in order to continue the arbitration. If Defendants, however, are failing to pay their portion of the fees to the AAA, Lincoln Builders’ proper course of action is to seek from the trial court an order directing that arbitration proceed in the manner provided for in their arbitration agreement with Defendants.

We note that neither of the parties comes to our court free from fault. Both Lincoln Builders and Defendants failed to pay their fees to the AAA. We will not allow a party to escape its duty to arbitrate a matter that it agreed to arbitrate by deliberately failing to pay its fee to the arbitrator. In conclusion, we find that Defendants have not waived their right to arbitration and Lincoln Builders will not be prejudiced by having to arbitrate their claim against Defendants. Lincoln Builders’ second assignment of error is without merit. In light of our conclusion, we pre-termit discussion of Lincoln Builders’ first assignment of error.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Lincoln Builders, Inc.

AFFIRMED.

      . In the record, the letter from the AAA, dated July 17, 2002, is the only mention made of $23,933. Neither party provided any evidence of a bill for $23,933 owed by each party.


author: hDECUIR, Judge.

text:
    STATE of Louisiana v. Phonesanga PHAYARATH.
    No. 03-0838.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      J. Phil Haney, District Attorney, New Iberia, LA, Renee M. Louviere, Assistant District Attorney, Franklin, LA, for Plaintiff/Appellee, State of Louisiana.
    Raymond L. Marie, Attorney at Law, New Iberia, LA, for Defendant/Appellant, Phonesanga Phayarath.
    Phonesanga Phayarath, In Proper Person, Iberia Parish Criminal Justice Facility, New Iberia, LA.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hDECUIR, Judge.

The Defendant, Phonesanga Phayarath, was charged by bill of information with distribution of a Schedule I controlled dangerous substance, namely MDMA, in violation of La.R.S. 40:966(A)(1), and with possession with intent to distribute a Schedule IV controlled dangerous substance, dextro-propoxyphene, in violation of La.R.S. 40:969(A)(1). Pursuant to a plea bargain with the State, he entered a plea of guilty to the reduced charge of attempted distribution of MDMA, and the State agreed to dismiss the count of possession with intent to distribute dextropropoxyphene. The Defendant was sentenced to eight years at hard labor, with all but five years suspended.

The Defendant is now before this court alleging four assignments of error.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the Defendant contends there are errors patent on the face of the record. He alleges the trial court never informed him of the maximum possible penalty provided by law, in violation of La.Code Crim.P. art. 556.1(A)(1). The Defendant also alleges that the plea agreement is ambiguous as to its description of the type of sentence he would receive.

In State v. Guzman, 99-1528, p. 6 (La.5/16/00), 769 So.2d 1158,1162, the Louisiana Supreme Court held, “whether a trial court complied with La.C.Cr.P. art. 556.1 is not subject to error patent'review but must instead be designated as an assignment of error by the defendant on appeal.” Although erroneously described as an error patent, the Defendant did assign as error the failure of the trial court to inform the Defendant of the maximum penalty as required by Article 556.1(A)(1). Therefore, the assignment of error is subject to review.

The Guzman court further held that “violations of La.C.Cr.P. art. 556.1 which do not rise to the level of Boykin violations are not exempt from the broad scope of | ^La.C.Cr.P. art. 921.” Id. at 1164. Article 921 states, “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” The Guzman court reiterated the rule that the core Boykin constitutional requirements do not include advice regarding sentencing and adopted and detailed a harmless error test for eases involving violations of Article 556.1(A)(1) and (E).

In U.S. v. Johnson, 1 F.3d 296, 298 (5th Cir.1993), the Fifth Circuit set forth a straightforward, two question test to determine “harmless error.” First, did the sentencing court vary from the required procedures? Second, if so, did such variance affect substantial rights of the defendant? Id. In order to determine whether the error affects the defendant’s substantial rights, the Fifth Circuit focused on “whether the defendant’s knowledge and comprehension of the full and correct information would have been likely to affect his willingness to plead guilty.” Id. at 302.

Article 556.1(A)(1) provides in part:

In a felony case, the court shall not accept a plea of guilty or nolo contende-re without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

In this case, the Defendant was charged with distribution of MDMA. La.R.S. 40:966(B)(2) lists the penalty for distribution of MDMA as imprisonment at hard labor for not less than five years nor more than thirty years, at least five of which shall be served without benefit of parole, probation, or suspension of sentence, and a fine of not more than fifty thousand dollars.

Pursuant to an agreement with the State, the Defendant pled guilty to attempted distribution of MDMA in return for a reduction of the original charge of distribution |3and dismissal of a second drug charge. The minutes reflect that Defendant is guilty of attempt under La. R.S. 14:27 which provides that the sentence imposed for attempt shall not exceed one-half of the longest term of imprisonment prescribed for the offense attempted. The supreme court has found this language requires no minimum penalty provision. State v. Callahan, 95-1331 (La.3/29/96), 671 So.2d 903, appeal after remand, 29,351 (La.App. 2 Cir. 2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979. Thus, the sentencing range for attempted distribution of MDMA is zero to fifteen years imprisonment.

The transcript of the plea hearing in this case contains the following colloquy:

By the Court:
Q: The possible sentence you could receive for pleading guilty to this charge is from zero to 15 years and a fine of up to $25,000.00. Do you understand the possible penalty you could receive for pleading guilty to this charge?
By the Defendant:
A: Yes, sir
Q: You have entered into a plea agreement in which you have agreed to plead guilty to Attempted Distribution of MDMA. In exchange for the guilty plea, the State has agreed to dismiss this other count and you would plead open-ended. We would order a certified criminal history. Do you have a cap on the plea?
By the State:
A: It’s zero to 15, Your Honor.
By the Court:
Q: Okay. So, it’s open ended.
By the State:
A: Yes, sir.
By the Court:
Q: You will plead open-ended. We will order a certified criminal |4history and then we will schedule a sentencing hearing at which time you will be able to produce evidence, the State would be able to produce evidence to me, and I would then decide at that time what your sentence would be. Somewhere between zero and 15 years. Is that your understanding of what you have agreed to do?
By the Defendant:
A: Yes, sir.

While the trial court did not explicitly state that an open-ended plea refers to a plea with no cap on the sentencing range and that fifteen years is the maximum sentence, the trial court did inform the Defendant of the sentencing range. Therefore, the trial court did not vary from the procedure required by Article 556.1.

The Defendant also claims that the plea agreement is ambiguous as to its description of the type of sentence involved.

This court has held that when the record establishes that a defendant was informed of and waived his rights to trial by jury, to confront his accusers, and against self-incrimination, the burden shifts to the accused to prove that despite this record, his guilty plea was involuntary. State v. Landry, 97-1460 (La.App. 3 Cir. 5/6/98), 711 So.2d 853; see State v. Wood, 34,819 (La.App. 2 Cir. 8/22/01), 793 So.2d 441, 446 (citing State v. Hoover, 34,952, 34,953 (La.App. 2 Cir. 4/5/01), 785 So.2d 184).

The record shows the trial court informed the Defendant of his rights, as required by Boykin, before accepting the guilty plea. The trial court advised the Defendant of his right to plead not guilty and to have a jury trial, his right to confront his accusers, and his right to remain silent and not testify against himself. The trial court further informed the Defendant that he had a right to put on a defense and explained to him his rights to appeal. The trial court asked the Defendant if he had reviewed his plea agreement with his attorney, and the Defendant responded that he had. The trial court then asked the Defendant’s counsel if he had reviewed the plea | ^agreement with his client, and counsel responded affirmatively. The Defendant claims that the plea agreement form is ambiguous, but neither he nor his counsel attempted to remedy any ambiguity at the time of the plea. Thus, the Defendant has not satisfied his burden of proving that his guilty plea was involuntary as a result of ambiguity in the plea agreement form.

Thus, this assignment is without merit.

ASSIGNMENT OF ERROR NO. 2:

In his second assignment of error, the Defendant claims that he reasonably believed he would receive a probated sentence instead of a prison term; therefore, he should be able to withdraw his guilty plea. In support of his motion, the Defendant cites Landry, 711 So.2d 853; State v. Hayes, 423 So.2d 1111 (La.1982); and State ex rel. LaFleur v. Donnelly, 416 So.2d 82 (La.1982).

The Defendant filed a motion to reconsider sentence, which was denied; however, the motion did not allege that a suspended sentence was a part of the plea agreement made with the state. The Defendant did not attempt'to withdraw his guilty plea. Consequently, the Defendant’s knowledge at the time of his plea is raised for the first time on appeal.

In Landry, 711 So.2d at 854 (footnote omitted), this court stated:.

Pursuant to La.Code Civ.P. art. 559(A), a trial court “may permit a plea of guilty to be withdrawn at any time before sentence.” However, the courts of this state have previously allowed those guilty pleas which are constitutionally deficient to be withdrawn, after sentencing, on appeal or post-conviction relief. State v. Dixon, 449 So.2d 463 (La. 1984). In the instant matter, not only has sentence been imposed, but, apparently, the defendant alleges breach of the plea agreement for the first time on appeal! Because we conclude the validity of the defendant’s plea is possibly at issue, [sic] due to the question of whether it was' knowing and intelligent, rather than solely the parties’ compliance with the plea agreement, we review the matter despite the defendant’s failure to squarely present the issue previously.

Because this Defendant also raises the question of whether his plea was knowing and | (¡intelligent, we will review the merits of the assignment.

In Landry, 711 So.2d at 854, this court set forth a two-part test to determine if a defendant should be allowed to withdraw a guilty plea after sentencing. First, the record must show that the defendant was properly Boykinized. To satisfy Boykin, the face of the record must demonstrate that the defendant expressly and knowingly waived the constitutional guarantees against self-incrimination, the right to trial by jury, and the right to confront his accusers. Second, once the record shows the defendant was informed of and waived these rights, the burden shifts to the defendant to prove that, nevertheless, his guilty plea was constitutionally infirm.

In the case at bar, the record shows that, prior to accepting his guilty plea, the trial court clearly informed the Defendant of his rights as required by Boykin. Therefore, the burden now shifts to the Defendant to prove that the plea was constitutionally infirm. After this court decided that the defendant in Landry had waived his Boykin rights, the court went on to say that the inquiry does not end with the waiver of these rights.

It is by now settled law that a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such a case a defendant has been denied due process of law because the plea was not given freely and knowingly.

711 So.2d at 855 (quoting State v. Dixon, 449 So.2d 463 (La.1984)).

The Defendant in this case claims that his guilty plea was not knowingly and freely given because he reasonably believed that he would receive a probated sentence rather than a term of imprisonment. However, he has presented no evidence showing why he reasonably believed he would receive a probated sentence. In fact, the record contains no mention by the State of a probated sentence, nor does the record reveal that the Defendant was under the impression that he would receive a 17probated sentence. During oral arguments at the close of the sentencing hearing, the Defendant’s trial counsel stated:

[H]e’s never been in trouble before, never been in trouble since, never even been arrested. I don’t mean pled to something and got — never even been arrested. He’s been a steady worker. He’s married. Judge, we’d like — we ivould hope for a suspended sentence. He does not have a substance abuse problem, never had a substance abuse problem. I just think that, you know, certainly he pled to it; and to the extent he was involved, he made a mistake. But that’s it.

The State’s attorney responded as follows:

I would point out, Your Honor, that [the Defendant] sold controlled dangerous substances to an undercover agent, Schedule I controlled dangerous substances. The [SJtate feels that a substantial hard labor sentence is warranted in this matter since [the Defendant] is involved in the sale of illegal narcotics in our community.

The Defendant did not object to the State’s request for a “substantial hard labor sentence,” nor did he indicate that his understanding of the plea agreement was that he would receive a probated sentence.

The Defendant cites Hayes and LaFleur in support of his position. The defendant in Hayes pled guilty while under the assumption that he would not be sentenced as a multiple offender. A month later the district attorney’s office filed a bill of information charging the defendant as a multiple offender. The trial court sentenced him accordingly, and the supreme court vacated the sentence. In LaFleur, the supreme court vacated a sentence imposed based on a voluntary plea of guilty due to the defendant’s obvious confusion about the sentence and his parole eligibility.

In the present case, the Defendant did not object or show confusion as to the sentence to be imposed. His attorney requested a suspended sentence, which shows that he could not have reasonably believed that he would receive a probated sentence. There was also no explicit agreement in which the State agreed to recommend a suspended or probated sentence, as evidenced by the State’s request for hard labor.

| sThis court has held that a distinction exists between an “agreed upon plea” and an “agreed upon sentence.” State v. Higginbotham, 03-49, p. 4 (La.App. 3 Cir. 4/30/03), 843 So.2d 1230, 1232. In this case, there was an “agreed upon plea” between the Defendant and the State, through which the State agreed to dismiss the second charge and reduce the offense to which the Defendant pled guilty. There was not an “agreed upon sentence” or even an agreed upon recommendation for sentence. This is evidenced in the record of the sentencing hearing by the State’s request for a “substantial hard labor sentence,” and the Defendant asking for a suspended sentence.

ASSIGNMENTS OF ERROR NOS. 3 & 4:

The Defendant next contends the trial court did not adequately comply with the requirements of La.Code Crim.P. art. 894.1, and he alleges that the sentence imposed is constitutionally excessive. In his motion to reconsider sentence, the Defendant alleged that his sentence was excessive and that those sentenced for similar offenses had received lesser sentences. He also listed several mitigating factors and asserted that the trial court “did not properly consider the [Defendant’s] history of no prior criminal activity.”

In State v. Butler, 98-1258, p. 6 (La.App. 3 Cir. 2/3/99), 734 So.2d 680, 683, this court stated that a trial court is “not required to rigidly list every factor under the sentencing guidelines. However, the record must establish that the trial court took cognizance of the sentencing guidelines established in Article 894.1.” This court has also held that the sentencing court is not required to “articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Crim.P. art. 894.1.” State v. Delgado, 03-46, p. 3 (La.App. 3 Cir. 4/30/03), 845 So.2d 581, 583 (quoting State v. Anderson, 95-1688 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483). The record must, however, reflect that the trial court gave adequate | consideration to Article 894.1 in particularizing the defendant’s sentence. Id.

In the present case, when the trial judge sentenced the Defendant, he stated:

The court considers the following relative to the sentencing to the defendant in this case. He has a twelfth grade education. He’s a welder. He is married with no children.
The court finds that the [Djefendant has already received a substantial benefit by the plea bargain. More than one-half of the possible sentence has been done away with as a result of the plea bargain.
On July 6th, 2001, the [Defendant sold MDMA with another individual to undercover agents who solicited the purchase of the drugs.
The offense of course involves a controlled dangerous substance offense.
The [Defendant has no prior record.

The factors enumerated by the sentencing court, as well as the evidence in the record, depict a married defendant with a solid work history whose father-in-law came forward to testify on his behalf. He has no criminal history whatsoever, no convictions and no arrests. The guilty plea to attempted distribution was based on an alleged drug transaction involving less than $200.00 and an undercover agent. While the record reflects an effort to comply with the requirements of Article 894.1, we do not find the sentence imposed was particularized to this individual defendant, nor was it warranted given the circumstances of this case. The sentence imposed is excessive and, as such, is an abuse of discretion and must be amended.

In searching the record for justification of a five-year term of incarceration for this first-time offender, we glean from the sentencing judge’s comments that he imposed the minimum sentence for distribution rather than for attempt, which has no minimum term of incarceration. See Callahan, 671 So.2d 903. We find this to be in error. Therefore, considering the record, the crime to which the defendant pled guilty, |10and the fact that the defendant has already served a year in jail, we correct and amend the sentence so as to reduce it from eight years at hard labor to five years, with all but one and a half years suspended. Upon release, the Defendant will be subject to the probationary conditions set forth by the trial court for the remaining three and a half years of his sentence.

Accordingly, for the foregoing reasons, the sentence imposed upon the defendant is hereby amended from eight years at hard labor, with all but five years suspended, to five years at hard labor, until all but one and a half years suspended.

AFFIRMED AS AMENDED.


author: J^PETERS, J. IíDECUIR, J.,

text:
    Brian T. SHIELDS, et ux. v. BAKER HUGHES, INC., et al.
    No. CW 03-816.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Richard A. Chopin, Jason P. Foote, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, LLP, Metairie, LA, for Defendants/Applicants, Baker Hughes, Inc., et al.
    Elwood C. Stevens, Jr., Attorney at Law, Morgan City, LA, for Plaintiffs/Respondents, Brian T. Shields, Claudette Pereira Shields.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   J^PETERS, J.

The issue in this application for supervisory writs is whether the spouse of a non-seaman injured offshore worker can recover nonpecuniary loss of consortium damages arising from the worker’s injuries. The defendants raised the issue in a motion for summary judgment, which the trial court rejected. We granted the writ application for the sole purpose of calling the matter up for consideration of the issue on the merits. For the following reasons, we now deny the writ application and remand the matter to the trial court for further proceedings consistent with this opinion.

DISCUSSION OF THE RECORD

The plaintiffs in this matter are Brian T. Shields and his wife, Claudette Pereira Shields. In their suit for damages filed under the general maritime law, the Shields named several defendants, including Baker Hughes, Inc.; Baker Atlas, a division of Baker Hughes, Inc.; Baker Hughes Inteq n/k/a Baker Hughes Oilfield Operations, Inc.; Western Atlas, Inc.; and Western Atlas International, Inc. (referred to collectively as “the Baker Group”). The plaintiffs alleged in their petition that Mr. Shields, a Halliburton Energy Services employee, was injured on March 19, 2000, while working on the “Noble Jim Thompson,” a movable offshore drilling unit (drilling unit) located on the outer continental shelf off the coast of Louisiana. The accident occurred while Mr. Shields and employees of the Baker Group were involved in connecting a Halliburton sump packer to a tool to be placed in the drilling hole on the drilling unit. The Shields asserted that while the Baker employees were moving the sump packer with the use of an e-line, “suddenly and without warning” the Baker e-line operator caused the sump packer to be moved upward too quickly. hThe Shields alleged that this action caused Mr. Shields to lose his balance, fall backward, and straddle an I-beam affixed to the rig floor, resulting in injuries to Mr. Shields.

In their suit, Mr. Shields sought general and special damages and Mrs. Shields sought damages for loss of consortium under the general maritime law. Subsequently, the Baker Group filed a motion for partial summary judgment, seeking dismissal of Mrs. Shields’ claim for nonpe-cuniary loss of consortium damages. The trial court denied the Baker Group’s motion, and this writ application followed.

OPINION

Louisiana Code of Civil Procedure Article 966(B) provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law.

It is undisputed that Mr. Shields was a non-seaman offshore worker injured in international waters, that he was not an employee of the Baker Group, and that the Baker Group was not the owner of the drilling unit. Thus, the sole issue on review is whether, as a matter of law, the wife of a non-seaman offshore worker injured in international waters is permitted to recover nonpecuniary damages for loss of consortium under the general maritime law against a non-employer defendant.

The Baker Group asserts that such a claim “is clearly prohibited by more than a decade of federal and state jurisprudence following the United States Supreme Court’s decision in Miles v. Apex Marine Corporation, 498 U.S. 19, 111 S.Ct. 817, 112 L.Ed.2d 275 (1990).” The Shields assert that “if Congress has spoken then a court sitting in |3admiralty is obliged to follow that Congressional act. ... [I]f Congress has not spoken, then it must be presumed that Congress never intended to preclude the availability of a certain remedy and it is, therefore, available.”

Clearly, the Miles Court has instructed that “there is no recovery for loss of society [a nonpecuniary loss] in a general maritime action for the wrongful death of a Jones Act seaman.” Id. at 33, 111 S.Ct. at 326. However, we do not find the reach of Miles to be as pervasive as suggested by the Baker Group.

In Warren v. Sabine Towing & Transportation Co., 01-573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 02-2927, 02-2936 (La.2/14/03), 836 So.2d 116, 117, this court recently considered the application of Miles in the context of the death of a seaman and the resultant wrongful death claim for nonpecuniary damages against certain non-employer manufacturers. In doing so, we stated:

In Miles, a seaman was killed by a fellow crew member while the ship on which they served was docked. The seaman’s mother sued the ship’s operators, the charterer, and the ship’s owner, alleging negligence under the Jones Act for failure to prevent the assault on her son and breach of the warranty of seaworthiness under the general maritime law. She sought damages for loss of society, among other damages.
While recognizing that there is a general maritime cause of action for the wrongful death of a seaman, the Miles Court found a limitation on the remedies available under such a cause of action. Specifically, the Court explained that DOHSA, applicable to deaths on the high seas, explicitly forecloses recovery for nonpecuniary loss such as loss of society. Additionally, while acknowledging that the Jones Act does not explicitly limit damages to any particular form, the Court considered FELA (interpreted early on as providing for only pecuniary damages), which Congress incorporated unaltered into the Jones Act, and concluded that “Congress must have intended to incorporate the pecuniary limitation on damages as well.” Id. at 32, 111 S.Ct. at 325. Thus, the Court held that “[t]here is no recovery for loss of society in a Jones Act wrongful death action.” Id. Moreover, concerning the plaintiffs cause of action under the general maritime law for unseaworthiness, the Court concluded: “It would be inconsistent with our place in the constitutional scheme were we to sanction more 14expansive remedies in a judicially created cause of action in which liability is without fault [unseaworthiness claim] than Congress has allowed in cases of death resulting from negligence [Jones Act claim].” Id. at 32-33, 111 S.Ct. at 326. Accordingly, the Court concluded that there is likewise no recovery for loss of society in a general maritime action for the wrongful death of a Jones Act seaman.

Id. at 536.

Although the decedent in Warren was also a seaman and his widow sought wrongful death nonpecuniary damages, we nevertheless found it necessary to consider the relationship between the decedent and the non-employer/manufacturer defendants in determining the remedies available to the plaintiff. We found crucial in Warren that, “[w]hile [the decedent] was a seaman covered by the Jones Act vis-a-vis his employer, he was not a seaman covered by the Jones Act vis-a-vis the manufacturer-defendants in this case.” Id. at 537. We explained:

In the instant case, [the decedent] was clearly a Jones Act seaman for purposes of his employment with [his employer]. However, that is where the similarity with Miles ends. [The widow’s] cause of action for wrongful death damages under the Jones Act or the general maritime law for unseaworthiness was no longer extant after her settlement with [the employer]. All that remained after that settlement was a garden-variety wrongful death cause of action under the general maritime law for third-party fault for failure to warn. Miles did not explicitly address the remedies available under such circumstances, nor do we find that it addressed that issue implicitly. Thus, we do not find that Miles precludes the application of state-law wrongful death remedies, including non-pecuniary damages.

Id. at 536 (footnote omitted).

In that case, the cause of action against the non-employer manufacturers occurred in territorial waters. Accordingly, we ultimately determined that the United States Supreme Court’s decision in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), allowed application of state-law wrongful death remedies, including nonpecuniary damages, under the specific facts of Warren.

|sAs in Warren, at the very least the nature of Mr. Shields’ relationship with the Baker Group removes Mrs. Shields’ claim for nonpecuniary damages from the pre-clusive effect of Miles. However, unlike Warren, this cause of action did not arise in territorial waters. Still, in Green v. Industrial Helicopters, Inc., 593 So.2d 634, 638 (La.1992), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992), the Louisiana Supreme Court instructed that “a Louisiana state court should respect Louisiana law unless there is some federal impediment to application of that law contained in federal legislation or a clearly applicable rule in the general maritime law.” In fact, the court explained: “As a matter of logic and legally permissible principle, Louisiana may afford a remedy not traditionally found in the maritime law, provided that the remedy neither conflicts with substantive maritime law nor imper-missibly interferes with the requirement of uniformity.” Id. at 639.

As set forth above, the Jones Act is not implicated vis-a-vis the Baker Group because the Baker Group was not Mr. Shields’ employer and because Mr. Shields was not a seaman. Further, the Baker Group was not the owner of the drilling unit such that the Shields’ claim against the Baker Group is not for uns.eaworthiness. Additionally, because this is a personal injury and not a wrongful death claim, DOHSA is not implicated. Also, while the Shields dispute that the LHWCA is applicable to this case, 33 U.S.C.A. § 933(a) and (i) of the LHWCA expressly preserves claims for damages against third persons. We are aware of no federal impediment to the application of state law or a clearly applicable rule in the general maritime law that would preclude application of Louisiana’s loss of consortium remedy to Mrs. Shields.

Further, we do not find in this case that the application of Louisiana’s loss of 1 ^consortium remedy interferes with the requirement of uniformity. In Green, the supreme court observed: “An offshore worker’s employment activities have no ‘direct concern’ with maritime shipping or commerce. The U.S. Supreme Court has stated that work related to offshore oil and gas exploration is not ‘maritime employment’. Herb’s Welding Inc. v. Gray, 470 U.S. 414, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985).” Green, 593 So.2d at 643 (citation omitted). The Green court concluded that Congress was not insistent on uniformity in the maritime law regarding offshore exploration and drilling.

Nevertheless, the Baker Group interposes our recent decision of Bertrand v. Air Logistics, Inc., 01-1655 (La.App. 3 Cir. 6/19/02), 820 So.2d 1228, as “confirming] the general rule that has been prevalent through the federal courts of Louisiana: non-pecuniary damages such as loss of consortium claims are not recoverable for injuries that occur outside of territorial waters, regardless of whether the injured party is a seaman or longshoreman.”

In Bertrand, the plaintiff was employed by an oil and gas company as a drilling supervisor, which position required him to travel among drilling platforms in the Gulf of Mexico. As he was being transported by helicopter, the helicopter experienced a loss of power, requiring the pilot to land in the Gulf. As a result, the plaintiff sustained back injuries. The plaintiff sued the helicopter company and the engine company. Unfortunately, after filing suit the plaintiff committed suicide. His wife, son and daughter were substituted as plaintiffs, and they amended the petition to assert wrongful death and loss of consortium claims. Pursuant to a motion for partial summary judgment, the plaintiffs’ claims for wrongful death and loss of consortium were dismissed. This court affirmed the dismissals. Regarding the dismissal of the 17claim for loss of consortium, this court found that the plaintiffs’ argument did not adequately address Miles. In reaching that conclusion, this court stated: “The [Miles ] Court ... emphasized the need for uniformity in maritime law, indicating that unless a statute specifically provides for non-peeuniary damages they would not be allowed for death or injuries beyond territorial waters.” Id. at 1234. In support of this position, this court cited federal jurisprudence in which courts have limited the recovery of nonpeeuniary damages for injuries that have occurred beyond territorial waters.

We respectfully disagree with our prior decision in Bertrand. As set forth above, we do not find Miles to be all pervasive in all general maritime actions. In fact, the Court in Miles stated that “we restore a uniform rule applicable to all actions for the wrongful death of a seaman, whether under DOHSA, the Jones Act, or general maritime law.” 498 U.S. at 33, 111 S.Ct. at 326 (emphasis added). Moreover, while federal appellate and district court opinions are to be respected and are persuasive, we are not bound by them. See Chittenden v. State Farm Mut. Auto. Ins. Co., 00-414 (La.5/15/01), 788 So.2d 1140. Indeed, even the federal courts are not uniform in their interpretation of the effect of Miles. Thus, we respectfully decline to follow Bertrand. Instead, we hold that, as a matter of law, Mrs. Shields may pursue her loss of consortium claim against the Baker Group.

DISPOSITION

For the foregoing reasons, we deny the Baker Group’s writ application at its cost and remand the matter to the trial court for further proceedings consistent with this opinion.

WRIT DENIED.

DECUIR, J., dissents with written reasons.

IíDECUIR, J.,

dissenting.

I respectfully dissent and would grant the writ.

The majority opinion fails to follow established precedent of this court, the federal district courts, and the United States Supreme Court. In so doing, the majority undermines the strong federal policy in favor of uniformity in maritime law. I do not believe that such an intrusion by this court into the general maritime law is warranted or permissible. Moreover, the majority’s unwarranted intrusion is especially egregious in this case because the accident occurred on the outer continental shelf, well outside the territorial waters of Louisiana.

Bertrand v. Air Logistics, Inc., 01-1655 (La.App. 3 Cir. 6/19/02), 820 So.2d 1228, is clearly on point in this case. Unable to escape this obvious point, the majority concludes that Bertrand was incorrectly decided. I must disagree.

The majority cites Green v. Industrial Helicopters, Inc., 593 So.2d 634, 639 for the proposition that “Louisiana may afford a remedy not traditionally found in the maritime law, provided that the remedy neither conflicts with substantive maritime law nor impermissibly interferes with the requirement of uniformity.” The majority argues that its opinion does not interfere with uniformity because Shields is not a seaman. This argument might be persuasive were the restrictions on the recovery of non-pecuniary damages limited to cases arising under the Jones Act, DOHSA, or other statutory maritime law. This, however, is not the case.

In Miles v. Apex, 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), the United States Supreme Court clearly extended the limitation to general maritime law. This was to remedy the absurd anomaly that a seaman could not recover nonpecu-niary damages under statutory maritime law but could recover those damages under the general maritime law. In so doing, the court declined to narrowly limit the scope of its prior decisions regarding uniformity.

Despite the Supreme Court’s unwillingness to narrowly interpret itself, the majority insists on narrowly construing Miles to provide Shields with a loss of consortium claim. The majority is creating a new anomaly whereby under the general maritime law, as interpreted by the majority, a seaman may not recover nonpecuni-ary damages for injuries on the high seas but a non-seaman' may. In straining to reach this result, the majority' cannot escape Bertrand.

Instead, the' majority finds that Bertrand is wrong and relies on the reasoning in Warren v. Sabine Towing and Transportation Co., 01-573 (La.App. 3 Cir. 10/30/02), 831 So.2d 517, writs denied, 02-2926, 836 So.2d 116, 02-2927, 836 So.2d 116, 02-2936 (La.2/14/03), 836 So.2d 116. In Warren, this court carved out a narrow exception for a seaman to recover nonpe-cuniary damages when suing a non-employer manufacturer. The first and fourth circuits have both rejected such an exception. See Dixon v. Cliffs Drilling Company, 92-2188 (La.App. 1 Cir. 11./24/93), 633 So.2d 277; Trahan v. Texaco, Inc., 93-39 (La.App. 4 Cir. 9/30/93), 625 So.2d 295. Likewise, in ■ declining to follow Wan-en, the United' States District Court for the Eastern District of Louisiana found that Warren suffered from “certain inconsistencies” together with “a fundamental misapplication of Miles.” Scarborough v. Clemco Industries, 264 F.Supp.2d 437 (E.D.La.2003).

laSimilar to the Scarborough court, I find the majority’s attempts to distinguish this case from Miles, and the federal district courts that have followed it, unpersuasive. I find that Bertrand correctly applied Miles in concluding that to allow the recovery of nonpecuniary damages by a non-seaman injured on the high seas would contradict the policy of uniformity espoused in Miles.

For the foregoing reasons, I respectfully dissent and would grant the writ.

      . Because issues pertaining to other defendants are not currently before us on writ of review, we have not provided either a factual or procedural background regarding those defendants.


author: | j EZELL, Judge.

text:
    Bruce Allen SPEIGHT v. Pamela Kay Stefek SPEIGHT.
    No. CA 03-1152.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      John William Pickett, Attorney at Law, Many, LA for Plaintiff/Appellee, Bruce Allen Speight.
    James Scott Seaman, Attorney at Law, Natchitoches, LA, for Defendant/Appellant, Pamela Kay Stefek Speight.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   | j EZELL, Judge.

In this case, Pamela Speight appeals the decision of the trial court that the interim periodic spousal support granted to her terminated at the rendering of her divorce from Bruce Speight. She asserts that the trial court erred in ruling that the interim support terminated when it did and that the trial court erred in failing to find Mr. Speight in contempt of court for failure to pay the support. For the following reasons, we reverse and render.

On March 27, 2002, Mr. Speight filed for divorce from Ms. Speight in Sabine Parish. She answered and requested interim spousal support. By judgment filed September 17, 2002, Mr. Speight was ordered to pay Ms. Speight $400 a month in support, “beginning August 1, 2002 and to continue thereafter until further orders of the court.”

On November 7, 2002, the .trial court granted Ms. Speight a final divorce. At the hearing, the trial court ordered counsel for Ms. Speight to set the rule for permanent alimony, which she said she would be seeking. This was never filed, and Ms. Speight remarried soon thereafter. The date of the remarriage is not in the record before this court.

On February 3, 2003, Ms. Speight filed a motion seeking past-due support as well as a motion of contempt and attorney’s fees. She sought support through February 1, 2003. At trial on the matter, the trial court ruled that the interim support terminated on November 7, 2002, the date of the granting of the divorce. The trial court also dismissed Ms. Speight’s motion for contempt and attorney’s fees. Ms. Speight appeals this decision.

Ms. Speight asserts two assignments of error on appeal; that the trial court erred in ruling that the interim support terminated on November 7, 2002, and that the[2trial court erred in failing to find Mr. Speight in contempt of court for failure to pay support past that date. We agree that the trial court erred in ruling that the interim support terminated on the date of the divorce.

A spouse’s right to claim interim periodic support is based on the statutorily-imposed duty of spouses to support each other dining their marriage. McAlpine v. McAlpine, 94-1594 (La.9/5/96), 679 So.2d 85. It is designed to assist the claimant spouse in sustaining the same style or standard of living that he or she enjoyed while residing with the other spouse, pending the litigation of the divorce. Daigle v. Daigle, 96-541 (La.App. 3 Cir. 11/6/96), 689 So.2d 478. Interim periodic support exists “to maintain the status quo without unnecessary economic dislocation until a determination of the amount of final support can be made, and until a period of time for adjustment elapses that does not exceed, as a general rule, one hundred eighty days after the judgment of divorce.” Defatta v. Defatta, 32,636, 32,637, p. 2 (La.App. 2 Cir. 2/1/00), 750 So.2d 503, 504-05. Additionally, La.Civ.Code art. 113 (emphasis ours), states:

Upon motion of a party or when a demand for final spousal support is pending, the court may award a party interim spousal- support allowance based on the needs of that party, the ability of the other party to pay, and the standard of living of the parties during the marriage, which award of interim spousal support allowance shall terminate upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of judgment of divorce, whichever occurs first. The obligation to pay interim spousal support may extend beyond one hundred eighty days from the rendition of judgment of divorce, but only for good cause shown.

The record in this case indicates that the trial court intended the interim support to terminate on November 7, 2002. The trial court stated that it “had no intention of [the support] going past the judgment of divorce” because counsel for Ms. Speight stated in court that she would be filing for permanent support.

| aHowever, in Defatta, supra, the trial court determined that interim support should be extended to the wife for one hundred eighty days past the judgment of divorce. In that matter, interim support had been established by a consent judgment. The husband challenged the trial court’s ruling, arguing that the extension of support past the date of the divorce judgment equated to a modification of the consent agreement. The first circuit disagreed, ruling that the trial court considered the statutes governing interim support, and that under those statutes the trial court did not abuse its discretion in extending support despite the consent agreement.

In this case, the support was not created by the consent of the parties, but rather, by the will of the court. Here, Mr. Speight can not claim that Ms. Speight agreed to any limitation on support.

Furthermore, an order extending interim spousal support one hundred eighty days from the date of the rendition of the judgment of divorce is unnecessary, since the support should not have terminated until then anyway. Bickham v. Bickham, 02-1307 (La.App. 1 Cir. 5/9/03), 849 So.2d 707. “Good cause” is required only for “extending interim spousal support beyond one hundred and eighty days from the rendition of the judgment of divorce,” and need not be shown to allow interim support to continue for one hundred eighty days after the judgment of divorce. Id at 712.

Moreover, La.Civ.Code art. 113 is clear. “Interim spousal support terminates not upon the rendition of the judgment of divorce, but upon the rendition of a judgment awarding or denying final spousal support or one hundred eighty days from the rendition of the judgment of divorce, whichever comes first.” Bickham, 849 So.2d at 712.

|4In this case, there was no request for final spousal support. Therefore, Ms. Speight’s interim spousal support would terminate by operation of law one hundred eighty days from the judgment of divorce. The support should have continued in favor of Ms. Speight for one hundred eighty days, or until the time she remarried. Accordingly, the decision of the trial court is reversed and remanded to determine the date of the former Ms. Speight’s remarriage.

Because the trial court erred in determining the date on which the spousal support terminated, the trial court could not correctly rule upon Ms. Speight’s motion to hold Mr. Speight in contempt of court for failure to pay the support past that date. Accordingly, this too should be reconsidered upon remand.

The decision of the trial court is reversed and remanded. Costs of this appeal are assessed against Bruce Speight.

REVERSED AND REMANDED.


author: hEZELL, Judge.

text:
    Louis K. HAWTHORNE v. LOUISIANA DEPARTMENT OF AGRICULTURE & FORESTRY.
    No. WCA 03-1162.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Jack Forsythe Owens, Jr., Attorney at Law, Harrisonburg, LA, for Plaintiff/Appellant, Louis K. Hawthorne.
    Edward M. Campbell, Special Asst. Atty General, Natchitoches, LA, for Defen-dani/Appellee, Louisiana Department of Agriculture & Forestry.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Louis Hawthorne appeals a judgment from the Office of Workers’ Compensation which held that he could return to his former work on a four-wheeler placing traps for boll weevils in fields. We affirm.

FACTS

Hawthorne was hired by the Louisiana Department of Agriculture and Forestry on March 27, 2000. On April 6, 2000, he broke his left wrist and arm when a bank caved in, causing him and the four-wheeler he was driving to fall, with the four-wheeler landing on him. He was treated by Dr. Ronnie Gregg at Riverland Medical Center.

The State initially paid indemnity and medical benefits but discontinued paying Hawthorne’s benefits in March 2001. Thereafter, Hawthorne filed a disputed claim form with the Office of Workers’ Compensation. A hearing was held on April 4, 2003. The workers’ compensation judge (WCJ) awarded temporary total disability benefits for the period from May 17, 2001, through August 13, 2001. She also approved a recommended surgical procedure. However, the WCJ denied the award of any other benefits, medical treatment, or penalties and attorney’s fees. The judgment was signed on May 12, 2003.

Hawthorne appeals. He alleges that the WCJ erred in finding that he is capable of working on a four-wheeler.

DISABILITY

Hawthorne claims that the WCJ erred in finding that he is capable of working without corrective surgery. He claims that Dr. John Passman, an orthopedic surgeon, made it clear that he could not return to work riding a four-wheeler until he had corrective surgery.

^Compensation for temporary total disability is available “only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment.” La.R.S. 23:1221(l)(c). “To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence.” Hagan v. LSU Med. Ctr., 28,669, p. 6 (La.App. 2 Cir. 9/27/96), 681 So.2d 971, 975.

“[T]he question of whether an employee is entitled to workers’ compensation benefits is ultimately a question of fact and the appellate court may not disturb the fact-finder’s resolution of that issue absent manifest error or unless it is clearly wrong.” Guidroz v. CPST, Inc., 01-1894, p. 3 (La.App. 1 Cir. 9/27/02), 835 So.2d 633, 635.

As a result of the accident Hawthorne sustained a left distal radius fracture. It appears the wrist did not heal properly, resulting in a mal-united left radial fracture with volar angulation and slight collapse of the joint space creating an elongation of the ulna.

Dr. Gregg opined that Hawthorne was sufficiently recovered to resume a normal workload on March 1, 2001. This is when the State terminated his benefits. Hawthorne then went to see Dr. Passman.

Dr. Passman evaluated Hawthorne on May 17, 2001. He opined that Hawthorne was unable to do manual labor at that time because of limitation of motion and pain in his left wrist joint. At that point, Dr. Passman recommended surgery to remedy the left wrist problem, but Hawthorne did not want surgery. Dr. Passman stated that Hawthorne could go back to riding a four-wheeler if he had the recommended surgery.

|sAn independent medical examination was performed by Dr. Douglas Brown on August 13, 2001. Dr. Brown agreed with Dr. Passman that Hawthorne would benefit from a surgical procedure. However, he opined that Hawthorne was fully capable of driving a four-wheeler and performing his job even if he did not have the surgery. Dr. Brown observed that Hawthorne was having some wrist pain but did not find that it was restricting his ability to function with the activities of daily living.

Based on this evidence we cannot say that the WCJ was clearly wrong in finding that Hawthrone was able to return to work and denying temporary total disability benefits. The judgment of the Office of Workers’ Compensation is affirmed. Costs are assessed to Louis Hawthorne.

AFFIRMED.


author: JjPETERS, J.

text:
    SUCCESSION OF Ricky James SIMON.
    No. CA 03-1127.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Donald G. Cave, Cave Law Firm, Baton Rouge, LA, for Appellant, Barbara C. Simon.
    Aubrey E. Denton, Attorney at Law, Lafayette, LA, for Appellee, Rebecca B. Simon.
    Michael S. O’Brien, The Goode Law Firm, Lafayette, LA, for Appellee, Robert Mitchell Arcement.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   JjPETERS, J.

This litigation involves a dispute between the mother and the surviving spouse of Ricky James Simon over who should be recognized as the administratrix of his succession. Mr. Simon’s mother, Barbara C. Simon, appeals a trial court judgment removing her as administratrix of his succession and naming his surviving spouse, Rebecca B. Simon, to that position. For the following reasons, we affirm the trial court judgment.

DISCUSSION OF THE RECORD

Ricky James Simon died as a result of a February 10, 2002 offshore accident. At the time of his death, he was married to Rebecca B. Simon. That marriage produced one child, Angel Nicole Simon, born on March 15, 1997. Mr. Simon also had another child, Jade Natelia Arcement, who was born on August 21, 1987, and who was later adopted by Robert Mitchell Arcement.

On February 27, 2002, or just seventeen days after Mr. Simon’s death, Barbara Simon filed a petition seeking to be appointed the administratrix of his succession. The trial court signed an ex parte order appointing her to that position, and Letters of Administration were issued to her, all on that date. Thereafter, the succession proceedings lay dormant until January 10, 2003, when Rebecca Simon filed a petition to be appointed administratrix of the succession as well as a dilatory exception of lack of procedural capacity and a peremptory exception of no right of action. Both exceptions sought removal of Barbara Simon as administratrix. On January 24, 2003, Rebecca Simon and Robert Mitchell Arcement filed a rule requesting that Barbara Simon be ordered to show cause why the exceptions should not be granted.

After an April 21, 2003 hearing wherein neither Barbara Simon nor Rebecca hSimon presented any evidence, the trial court rendered a judgment granting the exceptions and removing Barbara Simon as administratrix. The trial court signed a judgment to this effect on April 28, 2003. On April 30, 2003, the trial court issued written reasons for its judgment. Barbara Simon timely appealed this judgment, asserting in her one assignment of error that the trial court abused its discretion and committed manifest error in its decision to remove her as administratrix.

OPINION

In its written reasons for judgment, the trial court stated that Barbara Simon was not qualified to be appointed administratrix because her “petition for appointment ... made no allegations that she is a member of any of the categories listed under Louisiana Code of Civil Procedure Article 3097(B).” On appeal, Barbara Simon asserts that the trial court erred in using La.Code Civ.P. art. 3097(B) to remove her as administratrix absent evidence of the grounds of her disqualification. Additionally, at oral argument, counsel for Barbara Simon raised the contention for the first time that she should have been given the opportunity to amend her petition to state a basis for her qualification.

In this matter, no interested person filed a request for a La.Code Civ.P. art. 3091 notice of the filing of an application to be appointed administrator of Mr. Simon’s succession. Without such a request of record, and because more than ten days had elapsed since Mr. Simon’s death when Barbara Simon filed her petition to be appointed administratrix, the trial court was authorized to appoint her “forthwith, unless [she was] disqualified under Article 3097.” La.Code Civ.P. art. 3094. (Emphasis added.)

Parties disqualified from being appointed administrator or administratrix are | -¡set forth in La.Code Civ.P. art. 3097. That portion of the Article at issue in this litigation is La.Code Civ.P. art. 3097(B), which provides that “[n]o person may be appointed ... administrator who is not the surviving spouse, heir, legatee, legal representative of an heir or legatee, or a creditor of the deceased or a creditor of the estate of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal representative of an heir or legatee of the deceased, or a co-owner of immovable property with the deceased.” In her petition for appointment, Barbara Simon did not assert any qualification basis under La.Code Civ.P. art. 3097(B). Rather, she asserted that an administration was necessary because “[tjhere are debts due by the decedent’s estate.” Despite this failure to assert her specific qualification, when first presented with the application for appointment, the trial court signed an order appointing her as administratrix.

Concerning the removal of an adminis-tratrix, La.Code Civ.P. art. 3182 provides:

The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
The court on its own motion may, and on the motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.

Barbara Simon asserts that the trial court erred in granting the exceptions when Rebecca Simon presented no evidence in support of her exceptions. We agree that 14the consideration of the vagueness of the petition alone is an insufficient basis to remove her as administratrix. Generally, one seeking to establish that a party lacks the procedural capacity to proceed or has no right of action in the litigation must bear the burden of proof by presenting evidence in support of the exceptions. See Succession of Luwisch, 95-1185, 95-2376 (La.App. 4 Cir. 5/22/96), 675 So.2d 799; Succession of Humphrey, 28,298 (La.App. 2 Cir. 5/8/96), 688 So.2d 567, writ denied, 96-1871 (La.10/25/96), 681 So.2d 375; Succession of Bradford, 27,123, 27,328 (La.App. 2 Cir. 6/21/95), 658 So.2d 248, writ granted and reversed, 95-1884 (La.12/8/95), 664 So.2d 393; Succession of Orlando, 442 So.2d 501(La.App. 5 Cir. 1983), writ denied, 446 So.2d 1227 (La.1984); Succession of Revere, 393 So.2d 153 (La.App. 1 Cir.1980); Succession of Smith, 219 So.2d 291 (La.App. 3 Cir.1969).

However, although the trial court mentioned only Barbara Simon’s petition in its reasons for judgment, attached to the petition were all of the other pleadings required for the trial court to consider her application, including specifically a detailed descriptive list executed by Barbara Simon. In that detailed descriptive list, Barbara Simon specifically stated that Mr. Simon owned no immovable property at the time of his death. Additionally, she identified no debts owed by Mr. Simon at the time of his death. The detailed descriptive list is “prima facie proof of all matters shown therein, unless amended or traversed successfully.” La.Code Civ.P. art. 3137.

The record does reveal the underlying issue in this litigation. The issue is who will have the control of a Jones Act and general maritime suit for damages arising from Mr. Simon’s death. The record contains a copy of a Jones Act and general maritime suit filed by Rebecca Simon in the United States District Court for the Western District of Louisiana on January 6, 2003, or four days before she filed to be |Bappointed administratrix of Mr. Simon’s succession. In that suit, she appeared “individually and as personal representative of RICKY JAMES SIMON, deceased, and on behalf of ANGEL NICOLE SIMON, the minor child of Ricky James Simon.” Robert Mitchell Arcement joined her as a plaintiff in that suit, representing Jade Arcement’s interests. Barbara Simon asserts in brief that in her capacity as ad-ministratrix of her son’s succession she had already filed a similar suit in state district court on March 19, 2002. The record does not contain a copy of that suit.

While Barbara Simon may have a personal interest in the litigation over her son’s death, by her own pleadings, she does not qualify under La.Code Civ.P. art. 3097(B) to be appointed administratrix of his succession. Therefore, we find no error in the trial court’s judgment.

DISPOSITION

For the foregoing reasons, we affirm the trial court’s judgment removing Barbara Simon as administratrix of the succession of Ricky James Simon. We assess all costs of this appeal to Barbara Simon.

AFFIRMED.

      . This pleading marks the first appearance of Robert Mitchell Arcement in the succession pleadings.

      . The trial court judge who signed the order appointing Barbara Simon was not the same judge who decided Rebecca Simon’s rule to show cause.


author: h EZELL, Judge.

text:
    Nolan DELCAMBRE and Patricia Delcambre v. BLOOD SYSTEMS, INC.
    No. CA 03-1130.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Lawrence N. Curtis, Curtis & Lambert, Lafayette, LA, for Plaintiffs/Appellants, Nolan Delcambre and Patricia Delcambre.
    F. Frank Fontenot, George Malcom Pa-pale, Kym Krystyna Keller, Amanda Leigh Cheek, Milling, Benson, Woodward, LLC, New Orleans, LA, for Defendant/Appellee, Blood Systems, Inc.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   h EZELL, Judge.

In this case, Nolan Delcambre appeals the decision of the trial court granting Blood Systems, Inc.’s (BSI) exception of prematurity. Mr. Delcambre claims that the trial court erred in finding that he was a patient of BSI under the Louisiana Medical Malpractice Act (MMA) when his injuries occurred. ' For the following reasons, we reverse the decision of the trial court and remand the case for further proceedings.

BSI is a community blood center which collects donated blood and distributes it to health care providers. On July 29, 1999, Mr. Delcambre went to BSI for the sole purpose of donating blood. During his attempted donation, a phlebotomist employed by BSI incorrectly inserted a needle too deeply into his arm. His arm immediately filled with blood and became markedly swollen. He was treated that day at the emergency room at Lafayette General, where he remained hospitalized for three days. Mr. Delcambre later had to have surgery as a result of the injury, as well as suffering severe pain and possible permanent impairment in his arm as a result of the incident.

On June 15, 2000, Mr. Delcambre filed the present suit. BSI filed an exception of prematurity, claiming that Mr. Delcambre should first have filed his claim to a medical review panel under La.R.S. 40:1299.47. The trial court ruled in favor of BSI, finding that because BSI was a qualified healthcare provider, Mr. Delcambre must first submit his claim to a medical review panel before proceeding in district court. Mr. Delcambre’s suit was dismissed as a result of this ruling. From this decision, Mr. Delcambre appeals.

Mr. Delcambre asserts as his lone assignment of error that the trial court erred in finding that his claim was covered under the MMA, as he was not a “patient” of the blood bank within the meaning of the Act. We agree.

|;>The MMA requires that any malpractice claims against a qualified health care provider be submitted to a medical review panel prior to suit being filed. La.R.S. 40:1299.47(B)(l)(a)(i). Under La.R.S. 40:1299.41(A)(1), a “health care provider” is defined as “a person, partnership, limited liability partnership, limited liability company, corporation, facility, or institution licensed by this state to provide health care or professional services as a physician, hospital, nursing home, community blood center_” Thus, under La.R.S. 40:1299.41(A)(1), BSI is a qualified healthcare provider and any claims for malpractice would be governed by the MMA.

La.R.S. 40:1299.41(A)(8) (emphasis ours) defines malpractice as:

[A]ny unintentional tort or any breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a health care provider arising acts or omissions in the training or supervision of health care providers or from defects in blood, tissue, transplants, drugs and medicines, or from defects in or failures of prosthetic devices, implanted in or used on or in the person of a patient.

La.Civ.Code art. 2322.1(A) (emphasis ours) states, in pertinent part, that:

The screening, procurement, processing, distribution, transfusion, or medical use of human blood and blood components of any kind and the transplantation or medical use of any human organ, human tissue, or approved animal tissue by physicians, dentists, hospitals, hospital blood banks, and nonprofit community blood banks is declared to be, for all purposes whatsoever, the rendition of a medical service by each and every physician, dentist, hospital, hospital blood bank, and nonprofit community blood bank participating therein, and shall not be construed to be and is declared not to be a sale.

Accordingly, under La.Civ.Code art. 2322.1(A), the gathering of human blood is a professional medical service, and therefore any unintentional tort or any breach of contract based on that act would be considered malpractice under La.R.S. 40:1299.41(A)(8) if performed upon a patient under the MMA.

pThe MMA defines a patient as “a natural person who receives or should have received health care from a licensed health care provider, under a contract, express or implied.” La.R.S. 40:1299.41(A)(3). The MMA goes on to define health care as “any act, or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment or confinement.” La.R.S. 40:1299.41(A)(9) (emphasis added).

Application of these definitions to the case before us clearly establishes that Mr. Delcambre was not BSI’s patient at the time of his injury. He did not receive any health care or medical treatment whatsoever. “A blood donor is not a patient who consults blood bank personnel for treatment or therapy.” Laburre v. Bast Jefferson Gen. Hosp., 555 So.2d 1381, 1384 (La.1990). Rather, he went voluntarily to the blood center to donate his blood for the benefit of others. Furthermore, there was no act performed upon him that was for his own benefit or on his behalf. He did receive a cursory screening prior to the donation, however, this screening “is essential for the benefit of the blood recipient and not the blood donor.” Id. He entered BSI “for the sole purpose of donating blood, and at no time did [he] receive medical care or treatment as contemplated by the Louisiana Medical Malpractice Act.” George v. Our Lady, of Lourdes Reg’l Med. Center, Inc., 00-930, p. 3 (La.App. 3 Cir. 12/6/00), 774 So.2d 350, 352, writ denied, 01-51 (La.4/23/01), 788 So.2d 427.

BSI cites Cudges v. Our Lady of Lourdes Hosp., 514 So.2d 195 (La.App. 3 Cir.1987), for the proposition that this court has recognized injuries involving the drawing of blood as being malpractice under the MMA. However, this case is clearly distinguishable from Cudges. In that case, the plaintiff was injured while confined in the hospital, where she was receiving care and treatment when the injury occurred. |4The injury occurred while blood was being drawn for medical testing. This is completely different from the situation in this case. Mr. Delcambre was not under any care from BSI, which is a blood bank, not a hospital. Furthermore, the blood was not being drawn for medical purposes relating to his own well being, but was being drawn solely for donation. This case is clearly distinguishable from Cudges.

For the reasons assigned, the decision of the trial court is reversed and remanded for trial on the merits. Costs of this appeal are assessed against BSI.

REVERSED AND REMANDED.


text:
    Lonney DEMPSEY, et al. v. TOWN OF CHENEYVILLE.
    No. CA 03-1153.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 2004.

      Randall Brian Keiser, Reiser, Auzenne & Boudreaux, Alexandria, LA, for Defendant/Appellee, Town of Cheneyville.
    William Francis Henderson, Attorney at Law, Alexandria, LA, for Lonney Dempsey, Sr., Plaintiff/Appellant, Loren One Corporation, Six Pack Shack Plus.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   hEZELL, Judge.

Lonney Dempsey appeals a trial court judgment which affirmed the Town of Che-neyville’s denial of a license to operate a liquor store and lounge. We affirm.

FACTS

Dempsey is the owner of businesses named Loren One Corporation and Six Pack Shack Plus. Dempsey applied for a local business permit and occupational license with the Town of Cheneyville for the purpose of operating a nightclub and retail liquor establishment on property located in Cheneyville. At a special meeting on May 4, 1999, the Town denied Dempsey’s request.

On July 26, 1999, Dempsey filed a petition for a writ of mandamus and damages asking the district court to direct the Town to issue him the appropriate occupational license and award him damages for failure to issue the license. The Town filed an exception of no right of action which was granted by the trial court on October 25, 1999.

Dempsey appealed the trial court’s decision, and in an unpublished opinion, Dempsey v. Town of Cheneyville, 00-1568, 786 So.2d 978 (La.App. 3 Cir. 2/28/01), this court ruled that Dempsey had a right of action to proceed against the Town in district court seeking a reversal of the Town’s decision to deny him a liquor license.

After remand, a trial on the matter was held on February 12, 2003. The trial court found that Dempsey was not entitled to a writ of mandamus directing the Town to issue him a license. Dempsey then filed the present appeal on May 1, 2003.

| ¡.PRESCRIPTION

The Town of Cheneyville filed an exception of prescription in this court claiming that Dempsey’s claims have prescribed. This exception is properly before this court pursuant to La.Code Civ.P. art. 2163.

The Town argues that La.R.S. 26:106 provides that an appeal to the district court from the denial of a liquor license must be taken within ten days of the denial of the license and Dempsey did not file his petition in the district court until well past the ten days. Dempsey, on the other hand, argues that La.R.S. 26:106 does not apply to his situation because it does not apply to mandamus actions and it only applies to denial of licenses from the Commissioner of Alcoholic Beverages.

Louisiana Revised Statute 26:106 provides: (emphasis added)

A. Any party aggrieved by a decision of the commissioner to withhold, suspend, or revoke a permit or of the local authorities to withhold a permit may, within ten days of the notification of the decision, take a devolutive appeal to the district court having jurisdiction of the applicant’s or permit-tee’s place of business, proposed or actual as the case may be. Such appeals shall be filed in the district courts in the same manner as original suits are instituted therein. The appeals shall be tried de novo. Either party may amend and supplement his pleadings and additional witnesses may be called and heard. When there has been a previous criminal prosecution for the same or similar act upon which the refusal, suspension, or revocation of a permit is being considered, evidence of an acquittal in a court of competent jurisdiction is admissible in the trial of the appeal.
B. Within ten calendar days of the signing of the judgment by the district court in any such appeal case, the commissioner or the applicant for a permit or permittee, as the case may be, may devolutively appeal the judgment to the appellate court of proper jurisdiction. These appeals shall be perfected in the manner provided for in civil cases and shall be devolutive only. If the district court determines that the decision of the commissioner or of the local authorities in withholding, suspending, or revoking the permit was in error, the decision of the commissioner or local authorities shall not be voided if the commissioner or local authorities take an appeal to the court of appeals in the time provided for suspensive appeals.

|sRegardless of how Dempsey styled his petition, he is still challenging the decision of the Town denying his request for a liquor license. Furthermore, La.R.S. 26:106, as emphasized above,' specifically applies to decisions of the local authorities to withhold a permit, i.e., the Town.

Additionally, Dempsey claims that he was never sent notice of the Town’s decision. There is no doubt that Dempsey was aware of the decision of the Town on May 4, 1999, as the minutes indicate that his attorney was present and argued on his behalf. Furthermore, La.R.S. 26:106 has no requirement of written notification. It simply states “within ten days of the notification of the decision.... ”

Therefore, since Dempsey did not file his mandamus action until July 26, 1999, well over ten days after the May 4, 1999 decision of the Town; we find that Dempsey’s action was not timely. Sandi’s II, Ltd. v. Assumption Parish Police Jury, 01-2819 (La.App. 1 Cir. 12/31/02), 837 So.2d 124; Myers v. City of Lafayette, 537 So.2d 1269 (La.App. 3 Cir.1989).

We also observe that Dempsey’s appeal to this court was also not timely since La.R.S. 26;106(B) requires that his appeal to this court be filed within ten days of the signing of the district court judgment. The trial court judgment was signed on April 2, 2003, with Dempsey’s attorney also signing the judgment. The motion for an appeal was not filed until May 6, 2003.

For these reasons, we grant the Town of Cheneyville’s exception of prescription and dismiss Lonney Dempsey’s suit. Costs of this appeal are assessed to Lonney Dempsey.

EXCEPTION OF PRESCRIPTION GRANTED; DISMISSED.

      . We note that the proceedings below, and previously before this court, involved other parties. However, Lonney Dempsey was the only party to appeal the trial court judgment which is before us now.