author: | .PETTIGREW, J.

text:
    Modester THOMAS and Matthew Thomas v. FINA OIL AND CHEMICAL COMPANY et al.
    No. 2002 CA 0338.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Chad F. Reynolds, Earl Reynolds, Baton Rouge, for Plaintiffs-Appellants Modester Thomas and Matthew Thomas.
    Murphy J. Foster, III, Juliet T. Rizzo, Cade A. Evans, Baton Rouge, for Defendants-Appellees Fina Oil and Chemical Company and Larry Braud.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .PETTIGREW, J.

In this case, plaintiffs challenge the trial court’s judgment granting summary judgment in favor of defendants. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

For at least the last 25 years, Modester Thomas has suffered from a skin condition called “atopic dermatitis,” an inherited skin disease that requires daily treatment with ointments and creams. This treatment varies depending on the severity of the skin problems related to the occasional flare-ups that she encounters, flare-ups that last anywhere from 80 to 60 days. According to Ms. Thomas, this condition will be with her the rest of her life.

Ms. Thomas began working for Fina Oil and Chemical Company (“Fina”) in approximately 1989 and continues to work for Fina at this time. Ms. Thomas is employed as a laboratory technician in Fina’s Cosmar Styrene Plant, which requires that she maintain several job certifications. To this end, Ms. Thomas must work, on a rotating basis, in the water and waste treatment units. All technicians in Ms. Thomas’ position are required to perform the same job duties.

According to the record, Ms. Thomas performed work in the water and waste treatment units from 1989 until 1996 with no major aggravation of her atopic dermatitis while performing her job duties. Although she acknowledged that she did, in fact, have some flare-ups during this time, Ms. Thomas indicated that they were never as bad or as frequent as they later became in mid-1996, when her atopic dermatitis worsened while working in the water and waste treatment units. In response to Ms. Thomas’ complaints, her superiors at Fina initiated attempts to determine the cause of the flare-ups and assigned Ms. Thomas to work in the environmental laboratory (the “lab”) when necessary.

Ms. Thomas was seen by Dr. Rebecca Giles and Dr. Robert L. Rietschel for this very purpose. Neither Dr. Giles, a medical doctor specializing in dermatology, nor Dr. Rietschel, the chairman of the Department of Dermatology at Ocshner Clinic in New Orleans, was able to definitively link anything from Ms. Thomas’ work environment to the aggravation of her atopic dermatitis. As a result, Dr. Giles released Ms. Thomas to return |sto work with no medical restrictions on April 30,1998. Ms. Thomas returned to work and resumed her duties in the water and waste treatment units at that time. In June 1999, Ms. Thomas had another severe flare-up and was again assigned to work in the lab. According to the record, Ms. Thomas has remained assigned to the lab and has not worked in either the water or waste treatment units since that time.

On February 11, 2000, plaintiffs, Ms. Thomas and her husband, Matthew Thomas, filed the instant claim for damages against Fina and Ms. Thomas’ supervisor, Larry Braud, alleging that an allergen in the water and waste treatment units caused severe skin eruptions. Ms. Thomas further asserted that Fina and Mr. Braud had committed the intentional torts of assault, battery, and intentional infliction of emotional distress by forcing her to work in the water and waste treatment units knowing that an offensive or harmful contact would occur thereby leading to serious health problems. Mr. Thomas also asserted a claim for loss of consortium based on “a marked change in his and his wife’s capacity and lifestyle since the intentional acts by Defendants.”

Defendants filed an answer generally denying the allegations of the petition and stating that “the provisions of the Louisiana Workers’ Compensation Act [the “Act”], La. R.S. 23:1021 et seq. serve as the exclusive remedy to Plaintiffs and bar all of Plaintiffs’ claims against Defendants.” Thereafter, defendants filed a motion for summary judgment alleging that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. Noting that the Act was the exclusive remedy for unintentional work-related injuries, defendants asserted, “Plaintiffs have not shown, nor can they show, that [defendants] ever intended to cause them harm or ever knew with substantial certainty that injury would occur.” Attached to this motion for summary judgment were the following exhibits: (1) excerpts from plaintiffs’ depositions; (2) various letters from Ms. Thomas’ treating physicians; and (3) the affidavit of Mr. Braud. In opposition to the motion, plaintiffs submitted (1) excerpts from the depositions of Ms. Thomas and William Taylor, Director of Human Resources at Fina; (2) various letters from Ms. Thomas’ treating physicians; (3) the deposition of Warren Hoffman, Production Supervisor at Fina; and (4) the deposition of Mr. Braud.

I/The trial court heard argument on the motion for summary judgment on August 29, 2001. After considering the law and evidence in the record, the court granted the motion for summary judgment, dismissing, with prejudice, plaintiffs’ action. A judgment in accordance with the court’s findings was signed on September 13, 2001. On October 12, 2001, the trial court issued reasons for its ruling, wherein the court adopted, as its own, the memorandum in support of the motion for summary judgment previously filed by defendants. It is from this judgment that plaintiffs have appealed, assigning the following specifications of error:

1.The trial court erred in concluding that Modester Thomas’ skin eruptions were a Work-Place Injury with her exclusive remedy of the [Act].
2. The trial court erred in concluding that Modester Thomas did not prove that she was the subject of an intentional act and that harm was substantially certain to follow.
3. The trial court erred in concluding that it was necessary for Modester Thomas’ doctors to relate her skin “Flare-ups” with her employment at Fina.
4. The trial court erred in finding that Larry Braud did not commit the intentional tort of Battery and Assault against Modester Thomas, such that the Plaintiffs’ claims against Larry Braud are also subject to the [Act].
5. The trial court erred in finding that Plaintiffs’ [sic] have not suffered Intentional Infliction of Emotional Distress.

Thus, the central issue to be decided by this court is whether Fina and/or Mr. Braud committed an intentional tort such that plaintiffs’ claims would not be barred by the exclusivity of the Act.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored |Band is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2).

The initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evi-dentiary burden at trial. La.Code Civ. P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La.Code Civ. P. arts. 966 and 967; Simmons v. Berry, 98-0660, p. 4 (La.App. 1 Cir. 12/22/00), 779 So.2d 910, 914.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. J. Ray McDermott, Inc. v. Morrison, 96-2337, p. 9 (La.App. 1 Cir. 11/7/97), 705 So.2d 195, 202, writs denied, 97-3055, 97-3062 (La.2/13/98), 709 So.2d 753, 754. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

INTENTIONAL ACT

The question of whether an employer’s conduct falls under the intentional act exception to the Act was considered recently by the Louisiana Supreme Court in Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99), 731 So.2d 208. In that case, the employer directed an employee to move a sandblasting pot manually, a procedure that was prohibited by Occupational Safety and Health Administration (OSHA) and that the employee’s supervisor feared would eventually lead to injury. The court held that the conduct complained of did not amount to an intentional act and that plaintiffs remedy was limited to workers’ compensation benefits.

|fiIn Reeves, the court outlined the history of workers’ compensation in Louisiana. From 1914 until 1976, employees were free to pursue tort remedies for work-related injuries against executive officers and co-employees. In 1976, ' the legislature amended the Act in two important respects. It provided that workers’ compensation shall be the exclusive remedy against not only the employer, but also against any principal, officer, director, stockholder, partner or employee of the employer, or principal who was engaged at the time of the injury in the normal course and scope of his employment. La. R.S. 23:1032(A)(l)(a). It also provided that the employee is not limited to workers’ compensation and may pursue any other remedy where his compensable injury results from an intentional act. La. R.S. 23:1032(B); Reeves, 98-1795 at 3, 731 So.2d at 210. As amended in 1976, La. R.S. 23:1032(B) reads: “Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.”

As the Reeves court noted, the legislature, in considering the 1976 amendment, used the words “intentional act” and rejected the following terminology offered for inclusion in the proposed legislation: “violation of a recognized safety rule or regulation, ... failure to provide a safety device required by a recognized safety rule or regulation or by a statute, or by gross negligence on the part of a supervisory employee” and “gross negligence” (meaning “such disregard of the interest of others that the tortfeasor’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonable careful man under like circumstances”). Reeves, 98-1795 at 4, 731 So.2d at 210. The court explained that the meaning of “intent” in the context of the amended statute was that the employer or other person identified in the Act must either (1) consciously desire the physical result of his act, whatever the likelihood of the result happening from his conduct, or (2) know that the result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Reeves, 98-1795 at 6, 731 So.2d at 211.

Citing Bazley v. Tortorich, 397 So.2d 475, 480 (La.1981) and a long list of subsequent cases, the Louisiana Supreme Court noted that it and the appellate courts have narrowly construed the intentional act exception according to the legislative intent. Reeves, 98-1795 at 6-8, 731 So.2d at 211-212. Likewise, in Reeves, the court narrowly construed the intentional act exception. Although OSHA guidelines prohibited the sandblasting pot from being moved manually and although the supervisor had requested a forklift, the fact that he nevertheless ordered the pot moved manually did not establish an intentional act. Reeves, 98-1795 at 8, 731 So.2d at 212.

We note that “substantial certainty” requires more than a reasonable probability that an injury will occur. “Certainty” has been analogized to “inevitability” or “incapable of failing.” A high probability of someone getting hurt is not enough. The exception is designed for acts that are intentional, not for acts that are wanton or reckless or grossly negligent. Reeves, 98-1795 at 9-10, 731 So.2d at 212-213. Moreover, the violation of safety standards, without more, is generally not sufficient. Reeves, 98-1795 at 7, 731 So.2d at 211; See also Williams v. Gervais F. Favrot Co., Inc., 573 So.2d 533, 541 (La.App. 4 Cir.), writ denied, 576 So.2d 49 (La.1991).

A distinguishing feature in determining whether the conduct complained of meets the “substantial certainty” test is whether the event has occurred before or whether the injury has previously manifested itself. In Reeves, the event — moving the pot manually — had occurred before, without injury. Therefore, the injury was not substantially certain to result from again moving the pot manually. Reeves, 98-1795 at 10, 731 So.2d at 213.

Based on the above cited cases and the legislative purpose behind the enactment of the intentional act exception, the question before us in the instant case is whether, based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, defendants proved that they lacked the requisite intent for a tort action and that there were no unresolved issues of material fact as to whether defendants were substantially certain that the injury would result from their actions. Our de novo review of the facts of this case compels us to conclude that defendants carried their burden of proof. Thus, the burden shifted to plaintiffs to come forward with evidence that Isdefendants knew that an aggravation of Ms. Thomas’ skin condition was substantially certain to occur when she was assigned to work in the water and waste treatment areas of the plant. Plaintiffs failed to produce any such evidence.

When Ms. Thomas initially complained about the flare-ups of her atopic dermatitis and asserted that it was aggravated by her work environment, Fina sent her to see Dr. Giles, who in turn referred her to Dr. Rietsehel. In a letter dated April 28, 1997, Dr. Giles notified Fina that Ms. Thomas had been examined by her as well as by Dr. Rietsehel and that neither was able to conclude that anything in the work environment caused Ms. Thomas’ flare-ups. Dr. Giles reported that Ms. Thomas’ atopic dermatitis was “very well controlled with topical medications and two courses of oral Prednisone.” Ms. Thomas was seen a second time by Dr. Rietsehel at the request of Dr. Giles in March 1998. Again, Dr. Riet-schel reported that he did extensive testing and was unable to reveal any known allergens to avoid at work, other than par-aphenylenediamine, which Dr. Rietsehel indicated was a black dye occasionally found in a number of potential sources other than hair dye. Dr. Rietsehel also noted that Ms. Thomas reacted to the foam lining of her helmet, a problem that, according to Mr. Braud, was immediately addressed by replacing the lining of the helmet so as not to aggravate Ms. Thomas’ skin condition. On April 80, 1998, Ms. Thomas was ultimately released by Dr. Giles to return to her work environment with no medical restrictions. Dr. Giles noted that she was unable to conclude what caused the flare-ups in Ms. Thomas’ skin condition.

In her deposition, Ms. Thomas testified that she worked in the water and waste treatment units from 1989 until 1996 with no major aggravation of her atopic dermatitis while performing her job duties. Moreover, she acknowledged that her doctors were unable to pinpoint exactly what was causing her flare-ups or that these flare-ups were at all work-related. Thus, it follows that if the doctors have been unable to attribute Ms. Thomas’ skin condition to her work environment, then defendants cannot be deemed to 13have known, with substantial certainty, that assigning Ms. Thomas to work in the water and waste treatment units would result in any harm to her.

According to the depositions of Ms. Thomas’ supervisors, Warren Hoffman and Larry Braud, neither of them had any information, other than the assertions by Ms. Thomas, that the aggravation of Ms. Thomas’ skin condition was related to her work in the water and waste treatment units of the plant. Mr. Braud testified that he scheduled Ms. Thomas’ work assignments in the same manner that he handled assignments of all other laboratory technicians. Noting that he knew of no medical restrictions with regard to Ms. Thomas, Mr. Braud indicated that he had no reason not to assign her to work in the water and waste treatment units as is required for her to maintain her certifications. Mr. Braud added that after Ms. Thomas’ flare-up in June 1999, she was moved to the lab where she continued to work for the remainder of the year. He testified that there was no reason to move Ms. Thomas back into the water and waste treatment units because she had already satisfied her certification requirements for the year. However, with the start of a new year in 2000, it was necessary for Ms. Thomas to again work in the water and waste treatment units to maintain her certifications. It was this decision that prompted a February 9, 2000 letter from Ms. Thomas to Mr. Hoffman wherein she inquired about this decision and requested that she “not be placed back in these areas as they do cause [her] to have skin eruptions or other medical problems.” In a response dated February 15, 2000, Ms. Thomas was advised that pending an additional review of her medical records, she would “remain in [her] lab assignments and will not be required to work the water treating and waste treating areas.” According to the record, Ms. Thomas has not worked in these areas of the plant since June 1999.

Plaintiffs argue on appeal that defendants had the requisite knowledge because Ms. Thomas’ supervisors twice saw her aggravated skin condition while she was working in the water and waste treatment units. Thus, plaintiffs claim that defendants should have known that Ms. Thomas only had these flare-ups when she was working in the water and waste treatment units. We do not agree. Not only does the medical evidence fail to support this assertion, but also the testimony of Mr. Hoffman and Mr. Braud was Imsuch that they rarely saw Ms. Thomas when she was working in other areas of the plant, namely the lab. Therefore, they would have no knowledge of whether she had suffered an aggravation of her skin condition while in that part of the plant. Mr. Braud testified that when Ms. Thomas works in the lab, she is under different supervision and he may go three weeks or longer without an opportunity to see her. When asked if he had seen Ms. Thomas since her assignment to the lab in June 1999, Mr. Braud indicated that he had and noted as follows: “The time I observed her, I would say she was near normal. I’ve seen her, like I said, some days a little worse than others.” Mr. Hoffman indicated that he had very little contact with Ms. Thomas while she was working in the lab and that if she were to have a flare-up while working there, he probably would not have even known about it, unless she would have called him and reported it to him.

Plaintiffs also claim that defendants “by their actions had knowledge that Modester Thomas would have a ‘flare-up’ and have skin eruptions, due to the fact when she would have a ‘flare-up,’ [they] would reassign her to work in the environmental lab.” This argument fails as well. Both Mr. Hoffman and Mr. Braud testified that when Ms. Thomas was assigned to work in the lab, the decision was based solely on safety concerns and had nothing at all to do with what might be the cause of the flare-ups. Mr. Braud indicated that working in the water and waste treatment units of the plant was much more physically demanding than working in the lab, where “very little, if any, physical activity” is involved. Technicians assigned to work in the water and waste treatment units were required to do a lot of climbing. Mr. Hoffman testified that on two separate occasions, Ms. Thomas reported to him while working in the water and waste treatment units and complained of vision problems associated with one of her flareups. He noticed that her eyes were swollen and she had a skin rash. On those occasions, Mr. Hoffman was concerned that Ms. Thomas was a safety risk to herself and to others. He reported his concerns to Mr. Braud and requested that Ms. Thomas be moved to the lab.

According to the record, even Ms. Thomas herself was apparently uncertain that her flare-ups were related to her work environment. Both Mr. Hoffman and Mr. Braud testified about an incident in early 1999 when Ms. Thomas requested that she be included Inin the “turnaround” schedule for overtime in the water and waste treatment units. When asked if he ever told Ms. Thomas that she could not work overtime in the water and waste treatment units, Mr. Hoffman responded as follows: “I told her she couldn’t — that she wasn’t eligible for overtime as long as she wasn’t able to work in the waste treatment or water treatment unit on her regular scheduled shift.” Similarly, Mr. Braud recalled that Ms. Thomas requested to be scheduled for overtime. Mr. Braud noted, “she was telling us it was okay for her to work outside for time and a half but not straight time, and I told her no.” Mr. Braud testified further about this incident:

What I can recall, she did request through Warren Hoffman. She asked— she questioned why she was not included in the posted turnaround, upcoming turnaround schedule.... She was excluded. She questioned Warren why. She wanted to be included. She wanted the opportunity to work the overtime. My reply to Warren was the only areas she can work overtime in is the environmental lab, which there wasn’t any need for the turnaround coverage to reach the lab ... and by her own request not to be worked — not to work water treating and waste treating, I said if she don’t [sic] want to work it on regular time, she will not work it on overtime.

Following our review of the record in this case, we conclude that none of the testimony presented herein can be interpreted to mean that either Fina or Mr. Braud ever intended to cause Ms. Thomas harm or were substantially certain that harm to Ms. Thomas would inevitably follow their actions of assigning her to work in the water and waste treatment units. While we sympathize with Ms. Thomas’ situation, none of defendants’ actions meet our jurisprudential parameters of an intentional tort. There is simply no evidence in the record that the flare-ups of Ms. Thomas’ skin condition were substantially certain to occur if she worked in the water and waste treatment units. Without such evidence, defendants cannot be held liable for an intentional tort. Thus, Ms. Thomas’ claims in tort for assault, battery, and intentional infliction of emotional distress are barred by the Louisiana Workers’ Compensation Act. Summary judgment is warranted.

I ^CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of defendants and dismissing, with prejudice, plaintiffs’ claims. All costs associated with this appeal are assessed against plaintiffs-appellants, Modester Thomas and Matthew Thomas.

AFFIRMED.

      . Although not addressed individually, all issues raised by plaintiffs on appeal will be covered in this opinion.

      . It is noteworthy that according to the record, Ms. Thomas does not dye her hair. Moreover, according to Mr. Braud’s affidavit, Fina does not use the chemical parapheny-lenediamine in any of the work areas of the plant.


source: Caselaw Access Project

author: J^MCDONALD, J.

license: Public Domain

text:
    STATE of Louisiana v. Russell MILLIEN
    2002 KA 1006
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Anthony G. Falterman, Office of District Attorney, By Donald D. Candell, Gonzales, Counsel for Appellee, State of Louisiana.
    Peggy J. Sullivan, Monroe, Counsel for DefendanVAppellant, Russell Millien.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^MCDONALD, J.

The defendant, Russell Millien, was charged by amended bill of information with one count of theft of property having a value of five hundred dollars or more, a violation of La. R.S. 14:67, and pled not guilty. Following a jury trial, he was found guilty as charged. During trial, he twice moved for a mistrial, but the motions were denied. Following trial, he moved for a new trial, but the motion was denied. He was sentenced to five years at hard labor without benefit of parole, probation, or suspension of sentence to be served consecutively with any other sentence he was presently serving. He now appeals, designating three assignments of error. We reverse the defendant’s conviction for theft of property having a value of five hundred dollars or more and enter a modified conviction of theft of property having a value of one hundred dollars or more, but less than five hundred dollars; we vacate the defendant’s sentence; and we remand to the trial court for resentencing on the modified judgment of conviction.

SUFFICIENCY OF THE EVIDENCE

In assignment of error number one, the defendant contends the evidence was insufficient to support the verdict of guilty of felony theft. He argues the evidence failed to link him to theft of an amount greater than $500 and the circumstantial evidence failed to exclude the reasonable hypothesis that the checks not linked to him were drawn by someone other than him.

The standard of review for sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude the State proved the essential elements of the crime and the defendant’s identity as the perpetrator of that crime beyond a reasonable doubt. In conducting this review, we also must be expressly mindful of Louisiana’s circumstantial evidence test, which states in part, “assuming every fact to be proved that the evidence tends to prove, in order to convict,” every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. Where the key issue is the defendant’s identity as the perpetrator, rather than whether or not the crime was committed, the State is required to negate any reasonable | ¡¡probability of misidentification. Positive identification by only one witness may be sufficient to support the defendant’s conviction. State v. Wright, 98-0601, pp. 2-3 (La.App. 1st Cir.2/19/99), 730 So.2d 485, 486-87, writs denied, 99-0802 (La.10/29/99), 748 So.2d 1157; State ex rel. Wright v. State, 2000-0895 (La.11/17/00), 773 So.2d 732.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. WTien the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. Wright, 98-0601 at p. 3, 730 So.2d at 487.

Prior to amendment by 1999 La. Acts, No. 1251, § 1, La. R.S.14:67 provided:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or. by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
B. (1) Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.
(2) When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
(3) When the misappropriation or taking amounts to less than a value of one hundred dollars, the offender shall be imprisoned for not more than six months, or may be fined not more than five hundred dollars, or both. If the offender in such cases has been convicted of theft two or more times previously, upon any subsequent conviction he shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than one thousand dollars, or both.
C. When there has been a misappropriation or taking by a number of distinct acts of the offender, the aggregate of the amount of the misappropriations or taking shall determine the grade of the offense.

Between September and October 1998, the Ascension Parish Sheriffs Office began investigating bad check complaints involving checks drawn on the account of |4Jerome Bougere, III. The thirteen checks at issue were dated between September 19,1998, and September 30,1998.

Bougere was incarcerated between August 21, 1998, and October 8, 1998. He testified at trial and denied writing any of the checks at issue. After Bougere was incarcerated, he had his account closed and the blank checks for the account were placed in the trash. Bougere did not know the defendant, did not give the defendant any of the checks at issue, and did not give the defendant permission to write any of the checks at issue.

The following checks, written on Boug-ere’s account, were introduced into evidence:

Check # 275, dated September 29, 1998, to Wal-Mart for $120.00 (S-l);
Check # 261, dated September 30, 1998, to Wal-Mart for $280.00 (S-2);
Check # 270, dated September 28, 1998, to Wal-Mart for $100.00 (S-3);
Check # 267, dated September 26, 1998, to Chevron for $100.00 (S-4);
Check # 268, dated September 28, 1998, to First & Last Chance for $58.00 (S — 5);
Check # 295, dated September 22, 1998, to Chevron for $40.00 (S-6);
Check # 278, dated September 22, 1998, to Elray Kocke for $11.06 (S — 7);
Check # 293, dated September 23, 1998, to First & Last Chance for $45.00 (S — 8);
Check # 263, dated September 25, 1998, to First & Last Chance for $50.00 (S-9);
Check # 291, dated September 19, 1998, to Lee’s Chinese Inn for $20.20 (S — 10);
Check # 282, dated September 22, 1998, to Lee’s Chinese Inn for $40.00 (S-ll);
Check # 292, dated September 23, 1998, to Lee’s Chinese Inn for $50.00 (S — 12);
Cheek # 299, dated September 23, 1998, to Popingo’s for $50.00 (S — 13); and
Check # 298, dated September 23, 1998, to Lee’s Chinese Inn for $47.50 (S-18).

At trial, the State established the defendant’s fingerprints were discovered upon check numbers 278, 267, and 295.

|fiThe State also presented testimony from Christy Ray Jarreau. In September 1998, Jarreau worked as a cashier for El-ray Kocke. She identified State Exhibit number 7 as a check drawn on the account of Jerome Bougere for $11.06. Jarreau also identified a receipt which she had issued in connection with the sale of Vis-queen from Elray Kocke for $11.06. Jar-reau could not identify the person who gave her State Exhibit number 7 and she did not know that person.

The State also presented testimony from Cheryl Gibson. In September 1998, Gibson was employed by Mobil. She was shown a photographic lineup and selected the defendant’s photograph from that lineup as the person she refused to take a check from “the night of the storm[.]” Gibson had “been knowing [the defendant] from a kid” and knew he was not “the person whose name was on the check.” Gibson indicated the check she refused to take from the defendant was drawn on the account of Jerome Bougere.

The State also presented testimony from Samuel Patrick Fernandez. Fernandez was a cashier at Popingo’s. He identified his initials on a check drawn on the account of Jerome Bougere and written out to Popingo’s. Fernandez received the check on Jerome Bougere’s account from someone at Popingo’s on September 13.

The State also presented testimony from Becky Lemon. Lemon indicated “at some point in time” she worked at Chevron. The State presented her with “two documents” for identification. She stated, “I mean, [t]he only way I can identify them is that we endorsed them. I didn’t take them.”

The State also presented testimony from Michael Lawrence Turner. Lawrence ate at Lee’s Chinese Inn (Lee’s) weekly. He indicated “one day” while he was eating at Lee’s, the defendant came into the store to purchase some food with a check. The cashier refused to take a check from the defendant. Thereafter, the cashier asked Turner if he knew the defendant’s name, and Turner replied, “Russell Millien.” Turner was familiar with the |fidefendant because Turner had a friend who was the brother of one of the defendant’s friends.

The State also presented testimony from Wendy Marie Madere. Madere had been a waitress at Lee’s for approximately twelve years and also worked as a cashier at the restaurant when the hostess was busy. Madere identified State Exhibits numbers 10, 11, 12, and 18 as checks written to Lee’s, but stated, “I know that I didn’t accept any of these checks.” Mad-ere indicated some checks drawn on Boug-ere’s account had “[came] back” to Lee’s, and she had been instructed not to accept any more checks from Jerome Bougere. Madere was working the day the check drawn on Bougere’s account was refused, but did not see the refusal. She was informed by “the other girl that works [at Lee’s]” that, “Jerome Bougere was trying to pass another check. And there was a customer in there and said that is not Jerome Bougere that, that is Russell Mil-lien.” Madere indicated the customer who identified the defendant was Michael Turner.

The State also presented testimony from Julie Blanchard Guillot. Guillot had owned the First and Last Chance Restaurant for fifteen years. She identified three checks drawn on the account of Jerome Bougere and written in payment for food at the restaurant. Guillot indicated she was present when two of the checks were presented in payment. The checks were in the amounts of $58 and $50. Guillot identified the defendant in court as the person who had presented the checks in payment. She did not see the defendant write the checks because the checks were already written out when the defendant entered the restaurant.

The State also presented testimony from Jamie James Castro. Castro had been manager of the First and Last Chance in Donaldsonville for approximately six years. He identified State Exhibits numbers 5, 8, and 9 as checks drawn on the account of Jerome Bougere, III and written out “to the Chance.” Castro indicated he had personally accepted State Exhibits numbers 5 and 8 and identified the defendant in court as the person he had 17accepted the checks from. Castro had gone to school with the defendant and recognized him when he first came into the restaurant.

The State also presented testimony from Arthur Scott. Scott was a Wal-Mart store manager. Scott identified State Exhibits numbers 1, 2, and 3 as checks accepted at the Donaldsonville Wal-Mart that had “come back” because the account was closed.

In closing, the State made the following argument concerning proof of the value element of the offense:

Now, in an amount in excess of $500, that would be up the jury to decide. I have presented to you amount of 13 checks in the amount of $964. We’ve indicated to you that the misappropriation was the $964 plus, I think, it’s .24 cents. The jury will have to decide about the amount. That’s going to be up to you. I’ve presented several businesses, and I’ve presented an amount of $964, which is over $500.
It’s a graded offense, so the Judge is going to get into responsive verdict. You may feel it’s not $964. You may feel it’s between $100 and $500. You may feel it’s less than $100. I’m going to rely on the jury to make that determination.

After a thorough review of the record, we are not convinced the evidence presented herein, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the elements of the offense of theft of property having a value of five hundred dollars or more and the defendant’s identity as the perpetrator of that offense. The State’s evidence, viewed under the foregoing standard, established the taking, by a number of distinct acts, of things of value by means of fraudulent conduct, practices, and representations in the aggregate amount of $304.06, and the defendant’s identity as the perpetrator of those takings. (This amount includes checks number 263, 268, 293, which witnesses testified Mr. Millien presented to them, and the three checks that had Mr. Millien’s fingerprints on them, numbers 267, 278 and 295.) The State’s theory was that the defendant presented for payment all of the checks fraudulently drawn on the account of Bougere. However, no direct evidence established the defendant’s identity as the person who presented State |sExhibits numbers 1, 2, 3, 10, 11, 12, and 13 in payment. Further, any circumstantial evidence that the defendant presented those checks in payment failed to exclude the reasonable hypothesis of innocence that someone other than the defendant presented those checks in payment.

While we find insufficient evidence to support the conviction on the charge herein, discharge of the defendant is not warranted. The discharge of the defendant is neither necessary nor proper when the evidence does support a conviction on a lesser and included offense which was a legislatively authorized responsive verdict. State v. Byrd, 385 So.2d 248, 251 (La.1980). If an appellate court finds the evidence, viewed in the light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense. La. C.Cr.P. art. 821 E; State v. Ledet, 96-0142, p. 16 (La.App. 1st Cir.11/8/96), 694 So.2d 386, 346, writ denied, 96-3029 (La.9/19/97), 701 So.2d 163. The evidence in the instant case, viewed in the light most favorable to the State, proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the defendant’s commission of theft of property having a value of one hundred dollars or more, but less than five hundred dollars. This grade of theft is a legislatively authorized responsive verdict to a charge of theft of property having a value of five hundred dollars or more. La. C.Cr.P. art. 814 A(26).

Accordingly, the defendant’s conviction for theft of property having a value of five hundred- dollars or more hereby is reversed and modified to a conviction of theft of property having a value of one hundred dollars or more, but less than five hundred dollars; the defendant’s sentence hereby is vacated; and this matter hereby is remanded to the trial court for resentencing on the modified judgment of conviction.

| flOur resolution of this assignment of error causes us to pretermit consideration of assignment of error number three, wherein the defendant contends the sentence imposed was unconstitutionally harsh and excessive.

OTHER CRIMES EVIDENCE

In assignment of error number two, the defendant contends the trial court erred in allowing the admission of other crimes evidence and erred in denying a motion for mistrial based upon the introduction of that evidence. He argues the testimony of Gibson and Turner and evidence concerning check number 298 constituted other crimes evidence which was admitted without either notice by the State or a pre-trial hearing on admissibility.

The defense objected to testimony from Gibson, arguing that discovery indicated Gibson’s testimony concerned an attempted check cashing and moved for mistrial on the basis of other crimes evidence. The court overruled the objection and denied the motion for mistrial, noting the evidence showed modus operandi. The only objection the defense raised to Turner’s testimony was in reference to the State leading the witness. The defense objected to the admissibility of all checks written to Lee’s Chinese Inn (check numbers 291, 282, 292, and 298) as irrelevant and immaterial. The checks were admitted over defense objection.

Initially, we note the defendant failed to lodge a contemporaneous objection to the testimony of Turner. Accordingly, the defendant’s challenge to the admissibility of Turner’s testimony was not preserved for appeal. An irregularity or error cannot be availed of after verdict unless, at the time the ruling or order of the court was made or sought, the party made known to the court the action which he desired the court to take, or of his objections to the action of the court, and the grounds therefor. La.C.Cr.P. art. 841; La. C.E. art. 103 A(l).

Louisiana Code of Evidence article 404, in pertinent part, provides:

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412 [not pertinent hereto], evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, |insuch as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

Generally, evidence of other crimes committed by the defendant is inadmissible due to the “substantial risk of grave prejudice to the defendant.” To admit “other crimes” evidence, the State must establish that there is an independent and relevant reason for doing so, i.e., to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act. The Louisiana Supreme Court has also held other crimes evidence admissible as proof of other crimes exhibiting almost identical modus operandi or system, committed in close proximity in time and place. Evidence of other crimes, however, is not admissible simply to prove the bad character of the accused. Furthermore, the other crimes evidence must tend to prove a material fact genuinely at issue and the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Tilley, 99-0569, p. 18 (La.7/6/00), 767 So.2d 6, 22, cert. denied, 532 U.S. 959, 121 S.Ct. 1488, 149 L.Ed.2d 375 (2001).

The procedure to be used when the State intends to offer evidence of other criminal offenses was formerly controlled by State v. Prieur, 277 So.2d 126 (La.1973). Prior to its repeal by 1995 La. Acts, No. 1300, § 2, La. C.E. art. 1103 provided that the notice requirements and clear and convincing evidence standard of Prieur and its progeny were not overruled by the code of evidence. Prieur dealt with La. R.S. 15:445 and La. R.S. 15:446, now-repealed statutes, which addressed the admissibility of other crimes evidence. Under Prieur, the State was required to give a defendant notice, both that evidence of other crimes would be offered against him, and of which exception to the general exclusionary rule the State intended to rely upon. Prieur, 277 So.2d at 130. Additionally, the State had to prove by clear and convincing evidence that the defendant committed the other crimes. Prieur, 277 So.2d at 129. See State v.Code, 627 So.2d 1373, 1381 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994).

In However, 1994 La. Acts, 3d Ex.Sess., No. 51 added La. C.E. art. 1104 and amended La. C.E. art. 404 B. La. C.E. art. 1104 provides that the burden of proof in pretrial Prieur hearings, “shall be identical to the burden of proof required by Federal Rules of Evidence Article IV, Rule 404.”

The amendment to La. C.E. art. 404 B inserted the language “provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes,” into the article.

The burden of proof required by Federal Rules of Evidence Article TV, Rule 404, is satisfied upon a showing of sufficient evidence to support a finding by the jury that the defendant committed the other crime, wrong, or act. See Huddleston v. U.S., 485 U.S. 681, 685, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988). The Louisiana Supreme Court has yet to address the issue of the burden of proof required for the admission of other crimes evidence in light of the repeal of La. C.E. art. 1103 and the addition of La. C.E. art. 1104. However, numerous Louisiana appellate courts, including this Court, have held that burden of proof to now be less than “clear and convincing.” See State v. Williams, 99-2576, p. 7 n. 4 (La.App. 1st Cir.9/22/00), 769 So.2d 730, 735 n. 4.

In the instant case, the testimony of Gibson and the evidence concerning check number 298 related to conduct constituting an integral part of the act or transaction that was the subject of the prosecution against the defendant. As such, the notice requirements of Prieur were inapplicable. The State’s theory was that the defendant presented for payment all of the checks fraudulently drawn on the account of Bougere. Some of these checks were successfully passed in payment while others were refused. The unsuccessful attempts to pass the checks fraudulently drawn on the account of Bougere as well as the successful passing of checks fraudulently drawn on the account of Bougere constituted one continuous scheme. See State v. Mitchell, 344 So.2d 1026, 1029 (La.1977) (attempts to cash checks together with prior successful cashing of checks formed one continuous transaction and were part of res gestae of offense).

| ^Additionally, assuming arguendo, the balancing test of La. C.E. art. 403 is applicable to integral act evidence admissible under La. C.E. art. 404 B, that test was satisfied in this matter. The probative value of the testimony of .Gibson and the evidence concerning check number 298 was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or waste of time.

This assignment of error is without merit.

CONCLUSION

Therefore, for the foregoing reasons, defendant Russell Millien’s conviction for theft of property having a value of five hundred dollars or more is reversed and modified to a conviction for theft of property having a value of one hundred dollars or more, but less than five hundred dollars; the sentence is vacated; and we remand for resentencing on the modified conviction.

CONVICTION REVERSED AND MODIFIED; SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . The bill of information did not include check # 298 in aggregating the fraudulently presented checks to charge the offense.

      . A defendant's fingerprint on an object associated with a crime is direct evidence that the defendant touched the object at some time and is circumstantial evidence that he touched it at the time of the offense. State v. Allen, 95-1515, p. 8 (La.App. 1st Cir.6/28/96), 677 So.2d 709, 714, writ denied, 97-0025 (La.10/3/97), 701 So.2d 192.

      . The State did not reference the check by check number or State exhibit number.

      . The trial testimony was presented on March 2, 2000.

      . See footnote number 2.

      . The Louisiana Supreme Court has left open the question of the applicability of the Article 403 test to integral act evidence admissible under La. C.E. art. 404 B. See State v. Colomb, 98-2813, pp. 4-5 (La.10/1/99), 747 So.2d 1074, 1076 (per curiam).


author: J^FOIL, J.

text:
    John Melvin WILLIAMS, Sr. v. GRADY CRAWFORD CONSTRUCTION COMPANY and Bankers Insurance Company
    No. 2002 CA 0286.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Kenneth R. Williams, Baton Rouge, for Appellee John Williams.
    Elizabeth Smyth Sirgo, Mandeville, for Appellants Grady Crawford Bankers Insurance Co.
    Richard L. Seelman, New Orleans, for American Interstate Ins. Co. Grady Crawford Construction Co.
    James C. Dixon, Baton Rouge, for Appellant Grady Crawford Construction Co.
    Before: FOIL, McCLENDON and KLINE,  JJ.

       Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

   J^FOIL, J.

This appeal is by an employer, Grady Crawford Construction, Inc., and its insurer, Bankers Insurance Company, from a decision of the workers’ compensation judge (WCJ), Pamela Moses-Laramore, awarding the claimant, John Melvin Williams, Sr., workers’ compensation benefits and medical expenses. Mr. Williams answered the appeal, asking this court to amend the judgment to specify the nature of his disability, his average weekly wage and his specific weekly benefit. For the following reasons, we so amend and affirm as amended.

FACTS AND PROCEDURAL BACKGROUND

Mr. Williams was employed as a labor leader by Grady Crawford when he sustained an on-the-job lumbar injury on March 30, 1996. At that time, Grady Crawford was insured by Bankers. After the March 30 injury, Bankers paid all of Mr. Williams’ workers’ compensation benefits and medical expenses. Mr. Williams ultimately had back surgery, but was eventually able to return to work with Grady Crawford. However, he continued to have flare-ups of his back condition and would have to stop working. When Mr. Williams returned to work after these occasions, it was always with restrictions. Mr. Williams continued to work on and off for several years, but was never able to return to full-time duty at his 'labor leader position. In the latter part of 1999, he returned to work in a very light-duty position supervising a boring crew. On November 15, 1999, Mr. Williams finished taking a measurement and returned to his truck. He sat in his truck for about 45 minutes filling out paper work, got out of the truck and took a few steps. He immediately felt intense back pain. Mr. Williams was unable to finish work that day and, a few days later, was transported by ambulance to the emergency room. He later saw his treating physician and was diagnosed with a herniated disc in the same area of his back involved in the prior surgery. Mr. Williams has not worked since November 15,1999.

la At the time of the November 15 incident, Grady Crawford was insured by American Interstate Insurance Company. Mr. Williams filed suit against both Bankers and American for the recovery of benefits resulting from the March 30, 1996 and November 15, 1999 incidents. Bankers denied responsibility for benefits stemming from the November 15 incident when Grady Crawford was insured by American. Bankers voluntarily paid workers’ compensation benefits to Mr. Williams, but filed a cross-claim against American seeking reimbursement of all benefits paid after November 15,1999.

Following a hearing on the matter, the WCJ found that the evidence did not establish that a second accident occurred on November 15, 1999. Rather, she concluded that what occurred was simply a progression of the original accident. As such, the WCJ ruled that Bankers is solely responsible for payment of all workers’ compensation benefits. A judgment was rendered to that effect, dismissing Mr. Williams’ claims against American, including his claim for penalties and attorney fees. The WCJ also dismissed Banker’s cross-claim for reimbursement against American.

Grady Crawford and Bankers filed the instant appeal seeking reversal of the WCJ’s judgment. They assert that the WCJ erred in finding that they failed to prove that a second accident occurred on November 15, 1999, and in failing to place greater weight on the opinion of plaintiffs treating physician that the accident on November 15 was the cause of plaintiffs recurrent herniated disc and resulting disability. Appellants also urge that the WCJ erred in failing to award Bankers reimbursement from American, or alternatively, that she erred in failing to hold American solidarity liable for payment of benefits after November 15,1999.

Mr. Williams filed an answer to the appeal, noting that the judgment does not specify the nature of his disability, or his average weekly wage or his specific weekly benefit. He asks this court to reform or amend the judgment to specify these items.

|,.STANDARP OF REVIEW

The standard for reviewing workers’ compensation cases was summarized by the Louisiana Supreme Court in Seal v. Gaylord Container Corp., 97-0688, pp. 4-5 (La.12/02/97), 704 So.2d 1161, 1164, as follows:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Where there are two permissible views of the evidence, a fact-finder’s choice between them can never be manifestly erroneous or clearly wrong. “Thus, ‘if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.”’ (Citations omitted.)

DISCUSSION

Here, the WCJ specifically found that claimant did not sustain a second accident on November 15, 1999. The factual finding of the WCJ on whether an accident occurred or not is entitled to great weight on appellate review. See Bruno v. Harbert International, Inc., 593 So.2d 357, 364 (La.1992). We have reviewed the evidence and find no manifest error in this factual finding.

La. R.S. 23:1021(1) defines an “accident” under the Louisiana Workers’ Compensation Act as: “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” (Emphasis added.) In the instant case, Mr. Williams could not identify a particular event or incident after which his back pain grew worse. Instead, he consistently told numerous people both at work and at the hospital that he suffered spontaneous back pain radiating down to his right foot that resulted from an unknown cause. Further, Mr. Williams consistently reported that he did nothing at work that day to injure his back.

[sIn oral reasons for judgment, the WCJ noted the consistency of Mr. Williams’ version of what occurred on November 15, 1999. Further, she noted the ongoing physical problems that Mr. Williams suffered since the 1996 accident as testified to by both Mr. and Mrs. Williams. It is undisputed that Mr. Williams had varying degrees of discomfort over the years since the accident, and often complained of numbness reaching into his right lower extremity. Further, without a doubt, Mr. Williams had a sporadic, interrupted return-to-work history with Grady Crawford after the 1996 accident.

After a thorough review of the record, we conclude that the WCJ’s finding that claimant did not sustain a second work-related accident is a permissible view of the evidence, which we do not find to be clearly wrong. As such, the WCJ correctly held that Bankers is solely liable for any and all workers’ compensation benefits and medical expenses owed to Mr. Williams.

In his answer to the appeal, Mr. Williams has asked this court to amend the judgment, in the interest of clarity, to specify the nature of his disability, his average weekly wage and his specific weekly benefit. In oral reasons for judgment, the WCJ found that Mr. Williams has been temporarily and totally disabled since November 15, 1999. Further, the parties stipulated at trial that Mr. Williams’ average weekly wage on March 30, 1996 was $396.55, entitling him to indemnity benefits of $264.36 per week. We will amend the judgment to so provide.

CONCLUSION

For the foregoing reasons, the WCJ’s judgment is amended to reflect that Mr. Williams is entitled to temporary total disability benefits of $264.36 per week, based on an average weekly wage of $396.55. As amended, the judgment is affirmed. Costs of this appeal are assessed to Grady Crawford Construction, Inc. and Bankers Insurance Company.

AMENDED AND AFFIRMED.


author: hCARTER, C.J.

text:
    Gregory E. STROSCHER v. Cynthia B. STROSCHER.
    No. 2001 CA 2769.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.

      Nancy Sue Gregorie, Baton Rouge, for Plaintiff/Appellee, Gregory E. Stroscher.
    Richard L. Ducote, Jeannine A. Pro-vencher, New Orleans, for Defendant/Appellant, Cynthia B. Stroscher.
    Before: CARTER, C.J, WHIPPLE, and CIACCIO, JJ.

      . Hon. Philip C. Ciaccio, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   hCARTER, C.J.

Cynthia B. Stroscher (Barton) appeals a Family Court judgment sustaining peremptory exceptions raising the objections of no cause of action and res judicata and imposing sanctions against her and her attorney.

FACTS AND PROCEDURAL HISTORY

The parties to this case, Cynthia Barton and Gregory Stroscher, were divorced on March 9, 1999. One child was born of their marriage on November 15,1997.

On May 7, 1999, the Family Court accepted various stipulations by the parties, primarily concerning issues of child custody. Mr. Stroscher’s attorney submitted and on July 26, 1999, the Family Court signed a judgment (“the consent judgment”) purportedly reflecting those stipulations. Subsequently, Ms. Barton moved the Family Court to vacate the consent judgment, alleging that it is not consistent with the parties’ stipulations. Specifically, Ms. Barton complained that the consent judgment contains a “no prior act evidence” clause prohibiting the introduction of evidence regarding either party’s prior acts at subsequent custody hearings, which was not part of the parties’ stipulations. The Family Court found there was no error of fact involved in the consent judgment and rendered a judgment denying Ms. Barton’s request.

Ms. Barton then filed a petition to annul the consent judgment for ill practices on the part of both Mr. Stroscher’s attorney and the attorney who represented her at the time of the consent judgment. Mr. Stroscher objected to the petition on the grounds that the petition failed to state a cause of action and is barred by the doctrine of res judicata. He also requested sanctions pursuant to LSA-C.C.P. art. 863. The Family Court sustained a partial peremptory exception raising the objection of no cause of action as to the allegation that her own attorney’s ill practices should serve as a ground for nullity, but overruled a partial exception as to the alleged ill practice by Mr. Stroscher’s attorney. The Family Court sustained the peremptory exception raising the objection of res judi-cata. _J_2Finally, the Family Court granted Mr. Stroscher’s request for sanctions and ordered Ms. Barton and her attorney, Mr. Ducote, to pay court costs as well as $500 in attorney’s fees.

Ms. Barton appeals, contending the Family Court erred in sustaining the peremptory exceptions raising the objections of no cause of action and res judicata, and in imposing sanctions against her and her attorney.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO CAUSE OF ACTION

The objection of no cause of action is properly raised by the peremptory exception and questions whether the law extends a remedy to anyone under the factual allegations of the petition. The purpose of an exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. Richardson v. Home Depot USA, 2000-0393, p. 3 (La.App. 1st Cir.3/28/01), 808 So.2d 544, 546. In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court should subject the case to a de novo review. Knight v. Magee, 2001-2041, p. 4 (La.App. 1st Cir.9/27/02), 835 So.2d 636, 638.

Generally, no evidence may be introduced to support or controvert the exception. However, a jurisprudentially recognized exception to this rule allows the court to consider evidence that is admitted without objection to enlarge the pleadings. For purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. The court must determine if the law affords plaintiff a remedy under those facts. Richardson, 808 So.2d at 546-547. Any doubts are resolved in favor of the sufficiency of the petition. The question, therefore, is whether, in the light most favorable to the plaintiff, and with every doubt resolved in her behalf, the petition states any valid cause of action for relief. Knight, 835 So.2d at 638. If two or more causes of Paction are based on separate and distinct operative facts, partial grants of the exception of no cause of action may be rendered, while preserving other causes of action. Hand v. Hand, 99-2420, p. 4 (La.App. 1st Cir.12/20/02), 834 So.2d 619, 622.

When the grounds of the peremptory exception raising the objection of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. LSA-C.C.P. art. 934. The decision to allow amendment is within the sound discretion of the trial court. Richardson, 808 So.2d at 547.

Louisiana Code of Civil Procedure article 2004 provides that a final judgment obtained by fraud or ill practices may be annulled. This article is not limited to cases of actual fraud or ill practices, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure. Courts must review petitions for nullity closely as actions for nullity based on fraud or ill practices are not intended as substitutes for appeals or second chances to prove claims previously denied for failure of proof. The purpose of an action for nullity is to prevent injustice that cannot be corrected through new trials and appeals. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149, p. 5 (La.10/16/01), 800 So.2d 762, 766.

The two criteria for determining whether a judgment has been rendered through fraud or ill practices and is subject to nullification are: 1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and 2) whether enforcement of the judgment would be unconscionable or inequitable. Belle Pass Terminal, Inc., 800 So.2d at 766. The “legal right” of which a litigant must be deprived to have a judgment annulled encompasses the right to a fair and impartial trial. However, a judgment will not be annulled on account of fraud or ill practice in the course of a legal proceeding if the fraud or ill practice pertained to a matter irrelevant to the |Bbasis of the decision and the judgment therefore was not obtained by fraud or ill practice. Belle Pass Terminal, Inc., 800 So.2d at 767.

In this case, the judgment that Ms. Barton seeks to have declared null is a consent judgment. In effect, a consent judgment is a bilateral contract between the parties, which must be based on consent. Thus, a consent judgment, as opposed to other final judgments rendered against a party without their consent, may be annulled for an error of fact or of the principal cause of the agreement. LSA-C.C. arts 1841 and 1824, et seq; State, Dept. of Transportation and Development v. K.G. Farms, 402 So.2d 304, 307 (La.App. 1st Cir.), writ denied, 406 So.2d 625 (La.1981).

Ms. Barton argues she was deprived of her right to appear and be heard because her own attorney also represented Darla Goodwin, Mr. Stroscher’s girlfriend, who was present in court as a potential witness. Ms. Barton avers that her attorney did not disclose his representation of Ms. Goodwin or that such representation posed a conflict of interest. Without knowing these facts, Ms. Barton relied on her attorney’s advice and agreed to the terms of the stipulations. She contends that if she had known, she would have obtained other counsel and would not have agreed to the terms of the stipulations.

The Family Court correctly observed, however, that the improper representation or misconduct of the moving party’s attorney is not a legally recognized basis for granting an action in nullity. See Melancon v. D & M Enterprises, 95-0644, pp. 5-6 (La.App. 4th Cir.9/28/95), 662 So.2d 54, 57; Golden v. Slack, 524 So.2d 175, 178 (La.App. 4th Cir.1988). Accordingly, the Family Court properly sustained the peremptory exception raising the objection of no cause of action.

PEREMPTORY EXCEPTION RAISING THE OBJECTION OF RES JUDICATA

Res judicata is an issue preclusion device found both in federal law and in state law. The purpose of both federal and state law on res judicata is essentially the same — to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Certified Finance, Inc. v. Cunard, 2001-0797, p. 4 (La.App. 1st Cir.4/17/02), 838 So.2d 1, 3, writ denied, 2002-1802 (La.10/14/02), 827 So.2d 424.

Louisiana Revised Statute 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Under LSA-R.S. 13:4231, res judicata bars relitigation of a subject matter arising from the same transaction or occurrence as a previous suit. Thus, the chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. The doctrine of res judicata is not discretionary and mandates the effect to be given final judgments. Certified Finance, Inc., 838 So.2d at 3.

After a final judgment, res ju-dicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. LSA-R.S. 13:4231; LSA-C.C.P. art. 425. Implicit in the concept of res judicata is the principle that a party had the opportunity to raise a claim in the first adjudication, but faded to do so. Once a final judgment acquires res judicata status, no court has jurisdiction to change the judgment. Certified Finance, Inc., 838 So.2d at 4.

Louisiana Revised Statute 13:4231 embraces the broad usage of the phrase “res judicata” to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, a res judicata judgment on the merits precludes the parties from relitigat-ing matters that were or could 17have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: 1) foreclosure of relitigating matters that have never been litigated but should have been advanced in the earlier suit; and 2) foreclosure of relitigating matters that have been previously litigated and decided. Certified Finance, Inc., 838 So.2d at 4.

Res judicata cannot be invoked unless all its essential elements are present and each necessary element has been established beyond all question. The res judicata doctrine must be strictly construed, and any doubt concerning its applicability is to be resolved against the party raising the objection. Certified Finance, Inc., 838 So.2d at 4.

Ms. Barton seeks to have the consent judgment annulled because Mr. Stroscher’s attorney inserted language that does not conform to the parties’ stipulations. Central to Ms. Barton’s claim is a finding that language that does not conform to the stipulations was, in fact, included in the judgment. However, this issue was previously litigated. The Family Court determined that the judgment conforms to the stipulations and rendered judgment accordingly. That judgment is now final.

Considering the above principles of law, we conclude the Family Court correctly determined that res judicata applies to bar relitigation of the issue central to Ms. Barton’s action for nullity based on ill practices by Mr. Stroscher’s attorney. Absent a finding on that issue in Ms. Barton’s favor, there can be no finding of ill practices on the part of the attorney. Accordingly, we affirm that portion of the Family Court’s judgment sustaining the peremptory exception raising the objection of res judicata.

I «SANCTIONS

To impose sanctions, a trial court must find that one of the affirmative duties imposed by LSA-C.C.P. art. 863 has been violated. Article 863 provides, in pertinent part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.

Article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith will not satisfy this duty of reasonable inquiry. Connelly v. Lee, 96-1213, p. 4 (La.App. 1st Cir.5/9/97), 699 So.2d 411, 414, writ denied, 97-2825 (La.1/30/98), 709 So.2d 710. The article does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Article 863 is intended to be used only in exceptional circumstances; where' there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Tubbs v. Tubbs, 96-2095, p. 7 (La.App. 1st Cir.9/19/97), 700 So.2d 941, 945.

A trial court’s determination regarding the imposition of sanctions is subject to the manifest error or clearly wrong standard of review. Once the trial court finds a violation of Article 863 and imposes sanctions, the determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the abuse of discretion standard. Connelly, 699 So.2d at 414.

|9The Family Court imposed sanctions on Ms. Barton and her attorney for arguing that Mr. Stroscher’s attorney committed ill practice by including language in the consent judgment that did not conform to the parties’ stipulations. In written reasons, the Family Court stated:

a cursory examination of the record shows that not only has this matter already been litigated by this Court, but the court found specifically that the language of “no prior act evidence” did in fact conform with the judgment. It is clear that counsel for Ms. Barton failed to make an objective reasonable inquiry into the facts of this case as required by LSA-C.C.P. art. 863, for if he had, there is no possibility he could have, in good faith, made such an allegation. (Emphasis in original.)

After review, we find no manifest error in the Family Court’s decision to impose sanctions against Ms. Barton. The issue of whether erroneous language was inserted in the judgment was previously litigated. Although Ms. Barton clearly disagrees with the Family Court’s judgment on that issue, she did not seek review thereof. Consequently, there is no basis for the allegation of ill practices by Mr. Stroscher’s attorney. Ms. Barton’s subjective belief that she did not agree to the “no prior act evidence” clause contained in the judgment is no defense.

Finally, we find no abuse of discretion in the amount of sanctions imposed. The portion of the Family Court’s judgment imposing sanctions against Ms. Barton is affirmed.

MOTION TO RETURN BRIEF

Mr. Stroscher has filed, with this court, a motion to return Ms. Barton’s appeal brief and for sanctions, which was referred to the merits of this appeal. Mr. Stroscher argues Ms. Barton’s brief contains unacceptable language in violation of Rule 2-12.4 of the Uniform Rules — -Courts of Appeal, which provides, in pertinent part:

The language used in the brief shall be courteous, free from vile, obscene, obnoxious, or offensive expressions, and free from insulting, abusive, discourteous, or irrelevant matter or criticism of any person ... or any court, or judge or other officer thereof .... Any violation of this Rule shall subject the author, or authors, of the brief to punishment for contempt of court, and to having such brief returned.

|inThe language Mr. Stroscher objects to is contained in a footnote and in the briefs conclusion. In the footnote, Ms. Barton offers her thoughts on the equities of rule day in Family Court and the “so-called ‘consent’ judgments” that are sometimes entered on rule day. Ms. Barton’s conclusion consists of three paragraphs on the topic of domestic violence and her belief that those who commit domestic violence continue to do so through the court system, “with the full weight of the judicial system behind [them].”

The acrimony in this bitter dispute is evident. However, the language of Ms. Barton’s brief is inappropriate, discourteous and insulting. In the interest of judicial efficiency, we decline to return Ms. Barton’s brief. However, we grant the motion for sanctions and order that footnote 1 on page 4 and the entire conclusion on page 23 of Ms. Barton’s brief be stricken. In representing their clients, attorneys must act within the bounds of professionalism. We condemn the sort of unprofessional conduct evidenced in the brief submitted to this court. |nIt is clearly inappropriate and unprofessional for Mr. Ducote and Ms. Nyman to utilize Ms. Barton’s appellate brief as a platform for casting aspersions on the integrity of the Family Court and the judiciary.

CONCLUSION

For the reasons set forth herein, the judgment of the Family Court is affirmed. The motion for return of appeal brief and for sanctions is affirmed in part. Costs of this appeal are assessed to Cynthia Barton.

AFFIRMED; MOTION TO RETURN BRIEF AND FOR SANCTIONS GRANTED IN PART.

WHIPPLE, J., concurs.

      . That judgment is now final. Its validity is not before this court.

      . In her assignment of error on this issue, Ms. Barton contends the Family Court erred in imposing sanctions against her and her counsel. However, Mr. Ducote has not appealed. Accordingly, the propriety of the Family Court’s decision to impose sanctions on Mr. Ducote is not before us and will not be addressed herein.

      . For an excellent discussion of this, see Judge (now Justice) Weimer’s concurring opinion in In re Fournet, 98-1510 (La.App. 1st Cir.9/24/99), 757 So.2d 689, wherein he set forth, in footnote 1, the following:
      It should be noted that the "zealous advocate" concept is no longer part of the Rules of Professional Conduct as stated in Michael H. Rubin and Judge Brady M. Fitz-simmons, Simply Complying with the Rules of Ethics Doesn’t Make You an Ethical Lawyer, in In Our Own Words: Reflections on Professionalism in the Law, 95-97 (Louisiana Bar Foundation 1998):
      The 'zealous advocate’ concept is at the heart of most arguments why attorneys are allowed to behave in certain ways. In an adversary system, this arguments asserts, the attorney's primary duty is to the client. If the client's interests are paramount then certain behavior not only must be tolerated, it must be encouraged; the ‘zealous advocate' provisions of the former Code of Professional Responsibility made this explicit. Canon 7 was entitled, "A Lawyer Should Represent A Client Zealously Within the Bounds of the Law.”

      [However, w]hen the Code of Professional Responsibility was being transformed into the Rules of Professional Conduct, the ABA's drafting committee debated the zealous lawyer standard and deleted it. The result of the debate was that Model Rule 1.3, which Louisiana adopted, omitted any reference to "zeal” and substituted instead the maxim that a “lawyer shall act with reasonable diligence and promptness in representing a client.” The ABA's Official Comment to Model Rule 1.3 actually seems to broaden the black letter law of the rule and states that a lawyer should “act with zeal in advocacy upon the client's behalf.” The tension between the ABA Model Rule and the Comment is noted but not resolved in the ABA’s own "comparison" section which recognizes that the Comment is "less neutrally worded” than the Rule. Louisiana did not adopt the ABA’s Official Comment to Model rule 1.3 (Footnotes omitted.)

      . After the brief was filed, Ms. Barton filed and this court granted a motion substituting co-counsel and striking Ms. Nyman's name from the record. However, the brief containing the offensive language bears the names of Mr. Ducote and Ms. Nyman and appears to have been signed by Ms. Nyman. Thus, it is appropriate that Ms. Nyman, as well as Mr. Ducote, is reprimanded herein.