text:
    STATE ex rel. Cardell HULL v. STATE of Louisiana.
    No. 2003-KH-0065.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Hull, Cardell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Union, 3rd Judicial District Court Div. B, Nos. 18,016,18,017.

Granted for the sole purpose of transferring the pleading to the district court with instructions to the district judge to act on relator’s application for post-conviction relief filed on or about May 24, 2002. The district court is ordered to provide this Court with a copy of its judgment.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. James BUNCH v. STATE of Louisiana.
    No. 2003-KH-0269.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Bunch, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 286-606.

Relator represents that the district court has failed to act timely on an application for post conviction relief filed on or about October 15, 2002. If relator’s representation is correct, the district court is ordered to consider and act on the application. If relator’s representation is incorrect, the district court is ordered to accept, file and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    Edward Lee RICHARD, et al. v. CONOCO, INC., et al.
    No. 2003-CC-0740.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Sasol North America Inc. f/k/a; Condea Vista Company; ConoeoPhillips Co. successor to; Conoco Inc.; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 99-2268; to the Court of Appeal, Third Circuit, No. CW 02-01234.

Granted. Remanded to court of appeal for briefing, argument and opinion.


text:
    STATE ex rel. Ezra RICHARDSON v. STATE of Louisiana.
    No. 2002-KH-1986.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Richardson, Ezra; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish- of Tangipahoa, 21st Judicial District Court Div. C, No. 83,461; to the Court of Appeal, First Circuit, No(s). 2002 KW 0957, 2002 KW 0692.

Relator represents that the district court has failed to act timely on a motion for production of district attorney case file he filed on or about February 11, 2002. If relator’s representation is correct, the district court is ordered to consider and act on the motion. If relator’s representation is incorrect, the district court is ordered to accept, file, and act upon the pleading which is herewith transferred to the district court. The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. Gregory WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-2242.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Williams, Gregory; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 98-4243; to the Court of Appeal, Fifth Circuit, No. 02-KH-475.

Granted for the sole purpose of transferring the pleading to the district court for enforcement of its order of May 29, 2002, in which it ordered the production of relator’s Boykin transcript, if it has not done so already. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Jacob AMAR v. STATE of Louisiana.
    No. 2002-KH-2542.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Amar, Jácob; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 493104.

Granted for the sole purpose of transferring the application to the district court with instructions to the district judge to act on relator’s writ of habeas corpus filed on March 7, 2002, as evidenced by the district court’s “Notice of Filing.” The district court is ordered to provide this Court with a copy of its judgment.


text:
    STATE ex rel. Joe MILLER v. STATE of Louisiana.
    No. 2002-KH-2608.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Miller, Joe; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 850-157; to the Court of Appeal, Fifth Circuit, No. 02-KH-868.

Granted for the sole purpose of transferring the writ application to the district court with instructions to the district judge to act on relator’s motion to quash and motion for speedy trial filed via certified mail on June 14, 2002. The district court is ordered to provide this Court with a copy of its judgments.


text:
    STATE of Louisiana v. Larry PHILLIPS.
    No. 2002-K-0737.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Phillips, Larry — Defendant (s);— Applying for Rehearing of an Order of this Court dated November 15, 2002; Parish of St. Martin, 16th JDC Div. “A”, No. 98-184609; to the Court of Appeal, Third Circuit, No. 01-0253.

Rehearing denied.


text:
    STATE of Louisiana v. Travis HAYES.
    No. 2002-K-0263.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Hayes, Travis; — Defendant; Applying for Reconsideration of this Court’s action dated October 25, 2002; Parish of Jefferson, 24th Judicial District Court Div. M No. 97-3780; to the Court of Appeal 01-KA-736.

Denied.


text:
    STATE ex rel. Clarence J. MENESSES, Jr. v. STATE of Louisiana.
    No. 2002-KH-3193.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Menesses, Clarence J. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-1876; to the Court of Appeal, Fifth Circuit, No. 02-KH-1065.

Application dismissed at relator’s request.


text:
    STATE ex rel. Reginald ADAMS v. STATE of Louisiana.
    No. 2001-KH-2244.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Reginald Adams; Applying for a Motion to Enforce this Court’s order dated February 8, 2002; Parish of Orleans Criminal District Court Div. A, No. 278-951.

Motion to enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. Adams v. State, 01-2244 (La.2/8/02), 809 So.2d 136, within thirty days, if it has not done so already. The district court is further ordered to provide this Court with proof of compliance.


text:
    STATE ex rel. Clifford DOLEMAN v. STATE of Louisiana.
    No. 2002-KH-0619.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Doleman, Clifford; -Plaintiff; Applying for Motion to Enforce Order of this Court dated July 31, 2002; Parish of Orleans Criminal District Court Div. “D”. No. 275-550.

Motion to enforce granted. The district court is ordered to comply with this Court’s earlier order, see State ex rel. Doleman v. State, 02-0619 (La.7/31/02), 821 So.2d 489, within thirty days, if it has not done so already. The district court is further ordered to provide this Court with proof of compliance.


text:
    Regina ROBINSON v. HEALTH WORKS INTERNATIONAL, L.L.C.
    No. 2003-C-0965.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Robinson, Regina; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Franklin, 5th Judicial District Court Div. B, No. 35,102; to the Court of Appeal, Second Circuit, No. 36,-802-CA.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Sylvester HOWARD, Sr. a/k/a Sylvester Griffin a/k/a Roger Johnson.
    No. 2002-KO-1485.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Howard, Sylvester Sr. a/k/a; Griffin, Sylvester a/k/a; Johnson, Roger; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 345,872; to the Court of Appeal, First Circuit, No. 2001 KA 1487.

Denied.


text:
    STATE of Louisiana v. Roy M. MCLAUGHLIN, Jr.
    No. 2002-KO-1504.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re McLaughlin, Roy M. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 07-99-862; to the Court of Appeal, First Circuit, No. 2001 KA 1789.

Denied.


text:
    STATE of Louisiana v. Rodney E. TURBERVILLE.
    No. 2002-KO-1534.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Turberville, Rodney, E.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Franklin, 5th Judicial District Court Div. B, No. 2000 313 F; to the Court of Appeal, Second Circuit, No. 35,863 KA.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Ronald BROOKS v. STATE of Louisiana.
    No. 2002-KH-1585.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Brooks, Ronald;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 390-582; to the Court of Appeal, Fourth Circuit, No. 2002 K 524.

Denied.


text:
    STATE ex rel. Torey GILLARD v. STATE of Louisiana.
    No. 2002-KH-1618.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Gillard, Torey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 389-162; to the Court of Appeal, Fourth Circuit, No. 2002 K 695.

Denied.


text:
    STATE ex rel. Eldridge STEWART v. STATE of Louisiana.
    No. 2002-KH-1619.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Stewart, Eldridge; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 414-533; to the Court of Appeal, Fourth Circuit, No. 2002 K 462.-

Denied.


text:
    STATE of Louisiana v. John Henry SCOTT.
    No. 2002-KH-1622.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Applying for Supervisory and/or Remedial Writs, Parish of Lincoln, 3rd Judicial District Court Div. B, No. 45,633; to the Court of Appeal, Second Circuit, No. 34,949 KA.

Denied.


text:
    STATE ex rel. Antoine HOLLINS v. STATE of Louisiana.
    No. 2002-KH-1643.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Hollins, Antoine; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 97-2823; to the Court of Appeal, Fifth Circuit, No. 2002 KH 139.

Denied.

KNOLL, J., recused.

JOHNSON, J., would grant the writ.


text:
    STATE ex rel. Dwayne VIZIER v. STATE of Louisiana.
    No. 2002-KH-1644.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Vizier, Dwayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafourche, 17th Judicial District Court Div. B, No. 310 884; to the Court of Appeal, First Circuit, No. 2001 KW 2777.

Denied.


text:
    STATE ex rel. Wallace WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1648.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Williams, Wallace; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 371-118; to the Court of Appeal, Fourth Circuit, No. 2002-K-0590.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Julius JONES v. STATE of Louisiana.
    No. 2002-KH-1649.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Jones, Julius; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 00-5591; to the Court of Appeal, Fifth Circuit, No. 02-KH-412.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Melvin R. PORCHE v. STATE of Louisiana.
    No. 2002-KH-1650.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Porche, Melvin R.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 404-218; to the Court of Appeal, Fourth Circuit, No. 2002-K-0525.

Denied.


text:
    STATE ex rel. Herbert WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1651.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Williams, Herbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, Nos. 197-713,197-714.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Preston G. DEMOUCHET, Jr. v. STATE of Louisiana.
    No. 2002-KH-1652.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Demouchet, Preston G. Jr.;— Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Acadia, 15th Judicial District Court Div. B, No. 31681.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Ernest M. SERIO v. STATE of Louisiana.
    No. 2002-KH-1653.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Serio, Ernest; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 99-605; to the Court of Appeal, Fifth Circuit, No. 02-KH-393.

Denied.


text:
    STATE ex rel. Derrick PRICE v. STATE of Louisiana.
    No. 2002-KH-1655.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Price, Derrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. G, No. 352-537; to the Court of Appeal, Fourth Circuit, No. 2002-K-0449.

Denied.


text:
    STATE ex rel. Quentin COLEMAN v. STATE of Louisiana.
    No. 2002-KH-1656.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Coleman, Quentin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 229918; to the Court of Appeal, First Circuit, No. 2001 KW 2671.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(A).


text:
    STATE ex rel. Donald WILLIAMS v. STATE of Louisiana.
    No. 2002-KH-1657.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Williams, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 305-606; to the Court of Appeal, Fourth Circuit, No(s). 2002-K-143, 2002-K-0485, 2002-K-0598.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Cedric J. DUNBAR v. STATE of Louisiana.
    No. 2002-KH-1694.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Dunbar, Cedric J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, Nos. 381-506, 381-498; to the Court of Appeal, Fourth Circuit, No. 2002-K-0580.

Denied.


text:
    Steven GALLAGHER v. Edgar C. DAY, Jr., Warden, Lynn Pigott, Records Clerk, Gloria Woods, Records Clerk, and Richard L. Stalder, Secretary, Department of Public Safety and Corrections.
    No. 2002-CI-1718.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Gallagher, Steven; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 471,803; to the Court of Appeal, First Circuit, No. 2001 CA 0936.

Denied.


text:
    STATE ex rel. Joseph ZINA v. STATE of Louisiana.
    No. 2002-KH-1719.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Zina, Joseph;' — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 282-576.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Thadius WEBB v. STATE of Louisiana.
    No. 2002-KH-1720.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Webb, Thadius; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 184, 452; to the Court of Appeal, Second Circuit, No(s). 36252-KH, 36409-KH.

Denied.


text:
    STATE ex rel. John E. SPELLMAN v. STATE of Louisiana.
    No. 2002-KH-1721.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Spellman, John E.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. B, No. .99-250; to the Court of Appeal, Fourth Circuit, No. 2002-K-0727.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Steven BOZANT v. STATE of Louisiana.
    No. 2002-KH-1723.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Bozant, Steven; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Bernard, 34th Judicial District Court Div. A, No. 177-231; to the Court of Appeal, Fourth Circuit, No. 2002-K-0677.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Willie DIXON v. STATE of Louisiana.
    No. 2002-KH-1724.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Dixon, Willie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 361-684; to the Court of Appeal, Fourth Circuit, No. 2002-K-0647.

Denied.


text:
    STATE ex rel. Elaine BAILEY v. STATE of Louisiana.
    No. 2002-KH-1726.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Bailey, Elaine; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 7-97-365; to the Court of Appeal, First Circuit, No. 2002-KW-0215.

Denied. Moot. The court of appeal has acted.


text:
    STATE ex rel. Victor MOORE v. STATE of Louisiana.
    No. 2002-KH-1727.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Moore, Victor; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. K, No. 406-289; to the Court of Appeal, Fourth Circuit, No. 2002-K-0688.

Denied. State ex rel. Bernard, v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE of Louisiana v. Elgin McCLAY, et al.
    No. 2003-K-0354.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re McClay, Elgin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 392-507; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0694.

Denied.


text:
    STATE of Louisiana v. Alfred POUNDS.
    No. 2003-K-0369.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Pounds, Alfred; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. F, No. 419-070; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0771.

Denied.

CALOGERO, C.J., recused.


text:
    MOBIL EXPLORATION & PRODUCING U.S. INC., Mobil Producing Texas & New Mexico Inc., Mobil Oil Exploration & Producing Southeast Inc., Mobil Exploration & Producing North America Inc., St. Mary Land & Exploration Company, St. Mary Operating Company and Samuel Gary Jr. & Associates Inc. v. CERTAIN UNDERWRITERS SUBSCRIBING TO COVER NOTE 95-3317(A), Certain Underwriters Subscribing to Policy of Insurance 95-3317(B), Certain Underwriters Subscribing to Cover Note 96-3393(A) and Certain Underwriters Subscribing to Policy of Insurance 96-3393(B), Cliffs Drilling Company, Soriero & Company Inc., and AON Texas Acquisitions Corporation.
    No. 2003-C-0417.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re St. Mary Land & Exploration Company; St. Mary Operating Company; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 99,091; to the Court of Appeal, First Circuit, No. 2001 CA 2219.

Writ denied as to all matters not voluntarily dismissed by the parties. “Procedural Status Report” filed April 16, 2003 is not considered.


text:
    MOBIL EXPLORATION & PRODUCING U.S. INC., Mobil Producing Texas & New Mexico Inc., Mobil Oil Exploration & Producing Southeast Inc., Mobil Exploration and Producing North America Inc., St. Mary Land & Exploration Company, St. Mary Operating Company and Samuel Gary Jr. & Associates, Inc. v. CERTAIN UNDERWRITERS SUBSCRIBING TO COVER NOTE 95-3317(A), Certain Underwriters Subscribing to Policy of Insurance 95-3317(B), Certain Underwriters Subscribing to Cover Note 96-3393(A), and Certain Underwriters Subscribing to Policy of Insurance 96-3393(B), Cliffs Drilling Company, Soriero & Company, Inc., and AON Texas Acquisitions Corporation.
    No. 2003-C-0427.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Certain Underwriters Subscribing to Cover Note 95-3317(A); Certain Underwriters Subscribing to Policy of Insurance 95-3317(B); Certain Underwriters Subscribing to Cover Note 96-3393(A); Certain Underwriters Subscribing to Policy of Insurance 96 — 3393(B);—Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 99,091; to the Court of Appeal, First Circuit, No. 2001 CA 2219.

Writ denied as to all matters not voluntarily dismissed by the parties. “Procedural Status Report” filed April 16, 2003, is not considered.


text:
    MOBIL EXPLORATION & PRODUCING U.S. INC., Mobil Producing Texas & New Mexico Inc., Mobil Oil Exploration & Producing Southeast Inc., Mobil Exploration and Producing North America Inc., St. Mary Land & Exploration Company, St. Mary Operating Company and Samuel Gary Jr. & Associates, Inc. v. CERTAIN UNDERWRITERS SUBSCRIBING TO COVER NOTE 95-3317(A), Certain Underwriters Subscribing to Policy of Insurance 95-3317(B), Certain Underwriters Subscribing to Cover Note 96-3393(A), and Certain Underwriters Subscribing to Policy of Insurance 96-3393(B), Cliffs Drilling Company, Soriero & Company, Inc., and AON Texas Acquisitions Corporation.
    No. 2003-C-0438.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Cliffs Drilling Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. E, No. 99,091; to the Court of Appeal, First Circuit, No. 2001 CA 2219.

Writ denied as to all matters not voluntarily dismissed by the parties. “Procedural Status Report” filed April 16, 2003, is not considered.


text:
    STATE of Louisiana v. James PALMER.
    No. 2003-K-0433.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Palmer, James; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Morehouse, 4th Judicial District Court Div. H, No. 99-105; to the Court of Appeal, Second Circuit, No. 36,-779-KA.

Denied.


text:
    STATE of Louisiana v. Jennifer Denise QUIAMBAO.
    No. 2003-K-0477.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Quiambao, Jennifer Denise; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 99-F-1885; to the Court of Appeal, Second Circuit, No. 36,587-KA.

Denied.


text:
    Kelvin and Vonni CONTREARY v. DEROSE BUILDING, INC., et al.
    No. 2003-C-0603.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Contreary, Kelvin et al.; Con-treary, Yonni; — -Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, Orleans Parish Civil District Court Div. A, No. 2002-1771; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1680.

Denied.


text:
    Wendy Leonard, Wife of/and Dean MARULLO, Sr., Individually and on Behalf of Their Minor Son, Dean Marullo, Jr. v. Troy A. SENS, Enterprise Rent-A-Car Company and State Farm Mutual Automobile Insurance Company.
    No. 2003-C-0614.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Leonard, Wendy; Marullo, Dean Sr.; Marullo, Dean Jr.;- — -Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 97-18180; to the Court of Appeal, Fourth Circuit, No. 2002-CA-0613.

Denied.


text:
    Caroline Caffery GILLY, et al. v. IMC SALT, INC., et al.
    No. 2003-CC-0630.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re IMC Salt Inc. et al.; IMC Global Operations Inc.;- — -Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, No. 106510; to the Court of Appeal, First Circuit, No. 2002 CW 2050.

Denied.

TRAYLOR, J., recused.


text:
    Stephen Ray BURDETTE v. Ron DRUSHELL.
    No. 2003-C-0682.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Drushell, Ron; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, No. 73,528; to the Court of Appeal, First Circuit, No. 2001 CA 2494.

Denied.


text:
    Bruno J. DELEO, et al. v. BAYOU LAFOURCHE FRESH WATER DISTRICT and Peoples Water Service Company of Louisiana, Inc.
    No. 2003-C-0695.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Deleo, Bruno J. et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. B, No. 60,108; to the Court of Appeal, First Circuit, No. 2002 CA 0513.

Denied.


text:
    Julian E. LONG v. Linda Long MINTON.
    No. 2003-CC-0838.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Minton, Linda Long; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. E, No. 204,289; to the Court of Appeal, Third Circuit, No. CW 03-00154.

Denied.


text:
    Gloria MORRIS v. WESTSIDE TRANSIT LINE and/or American Transit Corp.
    No. 2003-C-0852.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Morris, Gloria; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 529-457; to the Court of Appeal, Fifth Circuit, No. 02-CA-1029.

Denied.


text:
    Carolyn LEJEUNE and Charlie Garic v. Ross Vincent MANCUSO and Westport Insurance Corporation.
    No. 2003-CC-0867.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Mancuso, Ross Vincent et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 2001-11064; to the Court of Appeal, First Circuit, No. 2002 CW 1353.

Denied.


text:
    Deatra JOSEPH v. HOUSING AUTHORITY OF NEW ORLEANS. Lorraine Cox v. Housing Authority of New Orleans. Karen Celious v. Housing Authority of New Orleans.
    No. 2003-OC-0871.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Joseph, Deatra; Cox, Lorraine; Celious, Karen; — Plaintiff(s); Applying for Writ of Certiorari and/or Review State Civil Service Commission, Nos. S-14239, S-14241, S-14251,; to the Court of Appeal, First Circuit, No(s). 2002 CA 0013, 2002 CA 0014, 2002 CA 0015.

Denied.


text:
    Adinena CASBORN v. Phillip SEDRISH, M.D.
    No. 2003-CC-0875.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Casborn, Adinena; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 96-12957; to the Court of Appeal, First Circuit, No. 2002 CW 2054.

Denied.


text:
    Howard J. LEGER v. DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS.
    No. 2003-CP-0883.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Leger, Howard J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 34412; to the Court of Appeal, First Circuit, No. 2002-CW-2277.

Denied.


text:
    TIMBERLANE IMPROVEMENT ASSOCIATION v. Roy L. JUNCKER.
    No. 2003-CC-0885.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Juncker, Roy L.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, Second Parish Court, No. 81532; to the Court of Appeal, Fifth Circuit, No. 03-C-240.

Denied.


text:
    Cecil E. ATWOOD v. EWING TIMBER INC.
    No. 2003-C-0888.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Ewing Timber Inc.;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita* Office Of Workers’ Comp. Dist. le, No. 98-07540; to the Court of Appeal, Second Circuit, No. 36,-732-WCA.

Denied.


text:
    Carolyn Caffery GILLY, et al. v. IMC SALT, INC., et al.
    No. 2003-CC-0890.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re IMC Salt Inc.; IMC Global Operations Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. H, No. 106510; to the Court of Appeal, First Circuit, No(s). 2002 CW 2027, 2002 CW 2050.

Denied.

TRAYLOR, J., recused.


text:
    Gerryleigh K. GALEANO v. TACO BELL CORPORATION.
    No. 2003-C-0892.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Galeano, Gerryleigh K; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 7, No. 01-04468; to the Court of Appeal, Fifth Circuit, No. 02-CA-904.

Denied.


text:
    STATE of Louisiana v. $11,000.00 U.S. CURRENCY AND (5) FIREARMS, Marcus B. and Cynthia Gordon.
    No. 2003-CP-0893.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Gordon, Cynthia;' — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. 266-98; to the Court of Appeal, Third Circuit, No. 02-1118.

Denied.


text:
    STATE of Louisiana v. Frank PALERMO.
    No. 2003-KK-0902.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Palermo, Frank; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 98-5860; to the Court of Appeal, Fifth Circuit, No. 03-K-66.

Denied.


text:
    Aurelie Roussel HILTON v. CRESCENT CITY TOYOTA, L.L.C. and Crescent City Dealership, L.L.C.
    No. 2003-CC-0903.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Hilton, Aurelie Roussel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. 0, No. 542-926; to the Court of Appeal, Fifth Circuit, No. 03-C-137.

Denied.


text:
    Sheryl A. JENKINS v. Anthony T. CAPASSO, La Auto Insurance and State Farm Mutual Automobile Insurance Company. Anthony T. Capasso v. Sheryl A. Jenkins.
    No. 2003-C-0904.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Jenkins, Sheryl A.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, Nos. 2001-4879, 96-21018; to the Court of Appeal, Fourth Circuit, No(s). 2002-CA-0625, 2002-CA-0626.

Denied.

VICTORY, J., would grant the writ.


text:
    Rita COLGATE v. MUGHAL BROTHERS, INC. d/b/a The Extremes Nightclub.
    No. 2003-C-0923.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Colgate, Rita; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 99-0758; to the Court of Appeal, Second Circuit, No. 36,754-CA.

Denied.

KNOLL, J., would grant the writ.


text:
    STATE of Louisiana v. Frank PALERMO.
    No. 2003-KK-0932.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 98-5860; to the Court of Appeal, Fifth Circuit, No. 03-K-66.

Denied.

JOHNSON, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    James Daryl LYNCH & Regina Bufkin Lynch, Husband and Wife v. Kim S. CAVANAUGH & Hillary G. Cavanaugh, Husband and Wife, and Liberty Mutual Fire Insurance Company.
    No. 2003-CC-0944.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Liberty Mutual Fire Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 466,524; to the Court of Appeal, Second Circuit, No. 37278-CW.

Denied.


text:
    Donald Lane SOUTHERLAND, et ux. v. CONTINENTAL CASUALTY COMPANY and Ryan’s Family Steakhouses, Inc.
    No. 2003-C-0955.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Southerland, Donald Lane, et ah; Southerland, Whitney Lee; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. A, No. 104,377; to the Court of Appeal, Second Circuit, No. 36,-782-CA.

Denied.


text:
    Darryl COULON v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2003-C-0967.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Coulon, Darryl; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Orleans Civil Service Commission, No. 6126; to the Court of Appeal, Fourth Circuit, No. 2002-CA-1688.

Denied.


text:
    Dan C. FRISARD v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 2003-C-0969.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Frisard, Dan C.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 572-545; to the Court of Appeal, Fifth Circuit, No. 02-CA-987.

Denied.


text:
    Brandi HOWARD, Songkane Simmaly, and Donna Atkins v. WILLIS-KNIGHTON MEDICAL CENTER.
    No. 2003-CC-0976.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Health Plus/Louisiana Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. K, No. 455,488; to the Court of Appeal, Second Circuit, No. 37341-CW.

Denied.


text:
    Leon CLIPPS, Jr. v. STATE of Louisiana DEPARTMENT OF LABOR and East Baton Parish School Board.
    No. 2003-C-0977.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Clipps, Leon Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 490,721; to the Court of Appeal, First Circuit, No. 2002-CA-1780.

Denied.


text:
    Gerryleigh K. GALEANO v. TACO BELL CORPORATION.
    No. 2003-C-0984.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Taco Bell Corporation; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 7, No. 01-04468; to the Court of Appeal, Fifth Circuit, No. 02-CA-904.

Denied.


text:
    STATE of Louisiana v. Wendell HARRISON, Sr.
    No. 2003-KH-1249.
    Supreme Court of Louisiana.
    May 16, 2003.
   In re Harrison, Wendell Sr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. D, No. 92142; to the Court of Appeal, Third Circuit, No(s). KH 03-00216, KH 03-00211.

Denied.


author: h TOBIAS, Jr., J.

text:
    Frank W. PARKER v. RITE AID CORPORATION
    No. 2003-C-0208.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 26, 2003.
    Lawrence G. Pugh, Alison S. Borison, Edward R. McGowan, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., New Orleans, Counsel for Defendant/Relator.
    Preston G. Sutherland, New Orleans, Counsel for Plaintiff/Respondent.
    Court Composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, and Judge MAX N. TOBIAS, Jr.
   h TOBIAS, Jr., J.

We grant the application for a supervisory writ of the defendant/relator, Rite Aid Corporation, to determine whether the trial court erred in denying the defendani/re-lator’s motion to dismiss without prejudice the plaintiff/respondent’s suit for failure to request service of the petition upon the defendant/relator within ninety (90) days. See La. C.C.P. arts. 1201(C) and 1672(C). For the following reasons, we affirm.

The petition as originally filed by the plaintiff/respondent requested service upon the defendant/relator through its registered agent for service of process. At the time of the filing of the petition, the plaintiff/respondent did not deliver a payment for the service of the petition to the civil sheriff as is the custom with the Orleans Parish Civil Sheriff. The precise issue before us is to whom must the request for service be made, for neither La. C.C.P. art. 1201(C) nor La. C.C.P. art. 1672(C) mandates to whom the request for service should be made.

Under La. C.C.P. art. 1202, the clerk must issue the citation under the clerk’s signature and seal of the court. (A citation must accompany a certified copy of the petition in order to complete proper citation and service.) It therefore follows that the initial request for service should be made to the clerk of court, not the civil 1 ^sheriff. The plaintiff/respondent in the case at bar made the request for service to the clerk of court at the time of filing of his petition. The requirements of La. C.C.P. arts. 1201(C) and 1672(C) have been met.

Accordingly, we find that the plaintiff/respondent timely made a request for service of the petition. The trial court did not err.

SUPERVISORY WRIT GRANTED; JUDGMENT AFFIRMED.

      . We do not address the issue of what the result would be if, after preparation of citation and delivery thereof with a certified copy of the petition to the sheriff, the plaintiff discovers that he, she, or it has stated an incorrect address in the original request for service.


author: 1 .GUIDRY, J. 1 ¶ FITZSIMMONS, J.,

text:
    James LIRETTE v. BABIN FARM, INC.

    No. 2002 CA 1402.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      Frank E. Brown, III, Baton Rouge, Ap-pellee Babin Farms, Inc. and LWCC.
    Nancy S. Silbert, New Orleans, Counsel for Appellant James Lirette.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.

      . We note that throughout the record the defendant, Babin Farm, Inc., is referred to interchangeably as "Babin Farm” and "Babin Farms.” For the purposes of this opinion, we will refer to the defendant as Babin Farms.

   1 .GUIDRY, J.

Claimant appeals a judgment of the Office of Workers’ Compensation (OWC) dismissing his suit with prejudice. That judgment was rendered as a result of claimant’s failure to attend two scheduled depositions.

FACTS AND PROCEDURAL HISTORY

Claimant, James Lirette, filed a disputed claim for workers’ compensation on June 27, 2001, against defendant, Babin Farms, Inc. The parties agreed to take the deposition of claimant on October 30, 2001, but claimant was unable to attend that deposition. Accordingly, the pre-trial conference and claimant’s deposition had to be rescheduled. Defendant subsequently scheduled to take claimant’s deposition on January 11, 2002, but he again failed to appear at his deposition. Defendant subsequently filed a motion to dismiss claimant’s suit. A hearing was held on the matter, and the OWC judge rendered judgment on February 28, 2001, dismissing claimant’s suit with prejudice. Claimant filed this devolutive appeal.

MOTION TO DISMISS

Claimant asserts that the OWC judge erred in granting defendant’s Motion to Dismiss “in that dismissal is an extreme sanction and in this case, does not serve the ends of justice.” Pursuant to La.Code Civ. P. arts. 1473 and 1471(3), when a |sparty fails to appear at his properly noticed deposition the court may, among other things, order the dismissal of the action. Allen v. Smith, 390 So.2d 1300, 1301 (La.1980); Tabor v. McDermott, Inc., 521 So.2d 625, 626 (La.App. 1st Cir.1988); see Moody v. Moody, 622 So.2d 1376, 1380 (La.App. 1st Cir.), writs denied, 629 So.2d 1168 (La.1993). The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling will not be reversed absent an abuse of discretion. Moody, 622 So.2d at 1381. However, dismissal is a draconian penalty that should be applied only in extreme circumstances. Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203. A sanction of dismissal involves property rights and, therefore, should be reserved for the most culpable conduct. Horton, 93-2315 at p. 10, 635 So.2d at 203. Dismissal is generally reserved for those cases in which the client, as well as the attorney, is at fault. Horton, 93-2315 at p. 11, 635 So.2d at 203. In addition, the record must contain sufficient evidence of plaintiffs willful disobedience, bad faith, or fault, in order to justify dismissal. Horton, 93-2315 at p. 11, 635 So.2d at 203; In re Medical Review Panel, 99-2088, p. 8 (La.App. 1st Cir.12/22/00), 775 So.2d 1214, 1218.

The record shows that claimant’s attorney did not initially provide a reason for claimant’s absence at his first scheduled deposition, although at the hearing on the motion to dismiss, she alleged that claimant’s absence was due to problems with transportation. Also, the record shows that claimant’s attorney did not send him a letter informing him about the second scheduled deposition until January 7, 2002. That deposition was scheduled for January 11, 2002. In addition, the letter was sent to a post office box and not claimant’s residence. At that time claimant also did not have a telephone. At the hearing on the motion to dismiss, claimant’s attorney stated that claimant did not receive the letter she sent him until the day after the deposition.

l4The record does not contain sufficient evidence of claimant’s willful disobedience, bad faith, or fault, in order to justify the ultimate penalty of dismissal. In addition, the record indicates that claimant’s counsel may have contributed to his failure to appear at the January 11, 2002 deposition.

DECREE

Accordingly, the judgment of the Office of Workers’ Compensation judge dismissing claimant’s suit with prejudice is reversed. This case is remanded to the Office of Workers’ Compensation for further proceedings consistent herewith. All cost to this appeal are assessed to Babin Farms, Inc.

REVERSED AND REMANDED

FITZSIMMONS, J., dissents in part and assigns reasons.

1 ¶ FITZSIMMONS, J.,

dissenting, in part, with reasons.

I respectfully dissent, in part. I agree that the defendant failed to show that plaintiff willfully disobeyed, acted in bad faith, or was at fault without reason. However, I do not agree with the majority’s failure to reimburse defendant for its reasonable expenses incurred as a result of the missed depositions. I would remand for a hearing to determine the amount of those expenses.

      . Claimant asserts as an assignment of error that the "Administrative Law Judge erred in granting Defendant’s Motion to Strike under La. C.C.P. art. 964.” However, that ruling was contained in a judgment rendered on April 16, 2002. Claimant appealed the judgment of February 28, 2002. Therefore, we do not consider that assignment of error.

      . Louisiana Code of Civil Procedure Article 1473 states, in pertinent part:
      If a party ... fails to appear before the officer who is to take his deposition, after being served with a proper notice ... [a] court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under Paragraphs (1), (2), and (3) of Article 1471....

      . Louisiana Code of Civil Procedure Article 1471 states, in pertinent part:
      If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
      * * *
      (3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.


author: 1 .GUIDRY, J.

text:
    John D. FIRMIN v. ST. MARY PARISH SCHOOL BOARD.
    No. 2002 CA 0631.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      C.E. Bourg, II, Morgan City, Counsel for Plaintiff/Appellant John D. Firmin.
    Charles C. Holbrook, Baton Rouge, Counsel for Defendant/Appellee St. Mary Parish School Board.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 .GUIDRY, J.

In this workers’ compensation case, John D. Firmin appeals the Office of Workers’ Compensation’s (OWC) judgment in favor of St. Mary Parish School Board (School Board). For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

John D. Firmin worked for the School Board as a truck driver, a job he held since 1993. As part of his job, Mr. Firmin delivered food items to local schools. On March 12, 2001, Mr. Firmin filed a disputed claim form with the OWC, claiming that he was totally disabled as a result of work-related injuries occurring on August 10, 2000 and January 18, 2001. Mr. Firmin alleged that he injured his back on August 10, 2000, while unloading bales of flour. He further alleged that on January 18, 2001, he stepped out of a food service truck, whereupon he experienced back pain, which traveled down through his hip and into his leg.

At the trial held on November 14, 2001, only Mr. Firmin and his girlfriend testified as to the alleged accidents and his resulting injuries. Additionally, medical records of Mr. Firmin’s treating physicians were admitted into evidence. In a judgment signed on December 14, 2001, the workers’ compensation judge ruled in favor of the School Board, finding that Mr. Firmin failed to carry his burden of proving that he was injured as a result of a work-related accident on August 11, 2000 or a job accident on January 10 or 18, 2001, and dismissed Mr. Firmin’s claim with prejudice.

ASSIGNMENTS OF ERROR

Mr. Firmin now appeals from this judgment and asserts the following assignments of error:

1. The workers’ compensation judge committed manifest error when he | .found that claimant failed to carry his burden in proving that he was injured as a result of a work-related accident on August 11, 2000 or a work-related accident on January 10 or 18, 2001.
2. The workers’ compensation judge erred when he dismissed claimant’s suit with prejudice.

LAW AND DISCUSSION

Whether a claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Williams v. Wal-Mart Stores, Inc., 00-1347, p. 5 (La.App. 1st Cir.9/28/01), 809 So.2d 294, 298. Factual findings in a workers’ compensation case are subject to the manifest error standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As such, in order for an appellate court to reverse a workers’ compensation judge’s factual findings, it must find from the record that a reasonable factual basis does not exist for the findings of the workers’ compensation judge and that the record establishes that the findings are clearly wrong. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Furthermore, when factual findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact’s findings; for only the fact finder can be aware of the variations in demeanor and tone that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In order for a claimant to be entitled to recover workers’ compensation benefits, he must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the | circumstances following the alleged incident. Williams v. Wal-Mart Stores, Inc., 00-1347 at 4, 809 So.2d at 298. Corroboration of the claimant’s testimony may be provided by the testimony of co-workers, spouses, friends, or by medical evidence. Murphy v. Brookshire Grocery Company, 02-808, p. 4 (La.App. 3rd Cir.12/11/02), 832 So.2d 1157, 1161. Barring circumstances that cast suspicion on the reliability of the claimant’s uncontradicted testimony, the trial court should accept the testimony as true when determining whether the claimant has discharged his burden. Brown v. Kwok Wong, 01-2525, p. 5 (La.App. 1st Cir.12/20/02), 836 So.2d 315, 319.

After careful review of the record, we find no manifest error in the workers’ compensation judge’s determination that Mr. Firmin failed to meet his burden of proving that he was injured as the result of a work-related injury. Additionally, Mr. Firmin’s testimony contained various inconsistencies, in particular as to the date of the alleged January 2001 injury and his ability to work following that injury. Also, the medical evidence showed that Mr. Fir-min, contrary to his own testimony and the testimony of his girlfriend, Wanda Kahl, had received treatment on several occasions for back and hip pain prior to August of 2000.

Further, the reports of Dr. Edison Ong, who treated Mr. Firmin on August 11, 2000, and Dr. Ricardo R. Leoni, Sr. who began treating Mr. Firmin on January 30, 2001, are inconsistent as to whether Mr. Firmin had a work accident. While Dr. Ong’s medical records do document that Mr. Firmin complained of back pain on August 11, 2000, they do not indicate that Mr. Firmin injured his back while at work, nor that he received any treatment or diagnosis of back pain on that date. Additionally, subsequent medical records from Dr. Ong do not show that Mr. Firmin sought or received treatment or diagnosis of back pain from August 11, 2000, to January 18, 2001, even though he had seen Dr. Ong on several occasions during this time frame for other unrelated conditions.

|kA1so, Dr. Leoni, in a March 8, 2001 report, indicated that he was unaware of any injury at work and that he was at a loss as to whether Mr. Firmin had a work accident, because Mr. Firmin did not mention it to him. However, Dr. Leoni later corrected this statement in a report dated April 5, 2001, relying on a notation made on the patient intake form stating that Mr. Firmin was injured while lifting flour. Dr. Leoni stated that he was not aware that Mr. Firmin was lifting flour at work, and based on that information, he now believed that Mr. Firmin’s injury was a workers’ compensation injury.

Despite the corrected statement of Dr. Leoni, the record evidences that Dr. Leoni did not see Mr. Firmin until sometime after the alleged January 2001 accident. Further, the only information Dr. Leoni had as to the nature of Mr. Firmin’s injury came from Mr. Firmin himself. As the record indicates, Mr. Firmin told Dr. Leo-ni that his pain started eight months ago and that he thought lifting flour caused it. Contrary to Mr. Firmin’s testimony at trial, the record does not show any direct mention to Dr. Leoni of the alleged January 18, 2001 accident. As such, Dr. Leo-ni’s determination in his April 5, 2001, report, indicating that Mr. Firmiris injury was work-related, rested solely on the alleged August 11, 2000 injury. However, as outlined previously, the circumstances and medical records following the alleged August 2000 accident do not corroborate Mr. Firmiris contention.

Therefore, we find that it was reasonable for the workers’ compensation judge to find that the testimony of Mr. Firmin was unreliable and that neither the medical evidence presented nor the events following Mr. Firmiris alleged injury supported or corroborated Mr. Firmin’s claim of a work-related injury.

I ^CONCLUSION

For the foregoing reasons, we affirm the judgment of the OWC. All costs of this appeal are to be borne by the appellant, John D. Firmin.

AFFIRMED.

      . The medical records indicate, and the parties and workers’ compensation judge acknowledged at the trial and on appeal, that the date of the alleged August 2000 injury was actually August 11, 2000.

      . Additionally, the record does not show that any mention of a January 2001 accident, work-related or otherwise, was ever made to any of Mr. Firmiris other treating physicians.


author: | .PETTIGREW, J. | FITZSIMMONS, J.,

text:
    Todd JOINER and Carla Joiner v. BILL HOOD FORD, INC.
    No. 2002 CA 0996.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      L. Stephen Rastanis, Baton Rouge, for Plaintiffs-Appellants Todd and Carla Joiner.
    Paul L. Billingsley, Hammond, for Defendant-Appellee Bill Hood Ford, Inc.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .PETTIGREW, J.

In this case, plaintiffs filed a motion to dissolve a writ of sequestration that had previously been issued by the trial court. After hearing testimony and argument on the motion, the trial court denied same, finding that there was no contract of sale between the parties and that defendant owned the truck in question. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On April 28, 2001, plaintiffs, Todd and Carla Joiner (the “Joiners”) visited an automobile dealership owned and operated by defendant, Bill Hood Ford, Inc. (“Bill Hood”), for the purpose of purchasing a vehicle. After deciding on a 2000 Ford F-350 Pickup Truck, the Joiners indicated their intent to trade in their 1998 Ford Mustang and were offered a gross trade-in allowance of $11,000.00 toward the purchase of the truck. The Joiners agreed to the offer and subsequently signed a contract entitled “RETAIL INSTALLMENT SALES CONTRACT, COMBINATION PROMISSORY NOTE, TRUTH IN LENDING DISCLOSURE STATEMENT AND SECURITY AGREEMENT.” The contract provided for the purchase of the truck at a cash price of $26,908.31, with the understanding that Bill Hood would promptly pay Ford Motor Credit Company the balance owed on the Mustang. The lender that Bill Hood was going to use for this transaction was Hibernia National Bank. However, stamped on the face of the agreement was “SUBJECT TO CREDIT APPROVAL.” After signing the contract, the Joiners left their Mustang as a trade-in and were allowed to take the Ford truck home with them.

Shortly thereafter, an employee of Bill Hood contacted the Joiners and advised them that Hibernia had rejected the loan, but that a different company would be used to finance the deal. Thereafter, on May 26, 2001, the Joiners returned to Bill Hood and signed a new contract entitled “LOUISIANA SIMPLE INTEREST PROPERTY RETAIL INSTALLMENT CONTRACT,” a second document entitled “RETAIL BUYER’S ORDER/LEASE FORM,” and a final document entitled “VEHICLE APPLICATION” for the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles. According to these documents, the selling price was listed as $26,855.00. Fairlane Credit |aLLC was going to finance $25,582.36 for the Joiners’ purchase of the truck. Unlike the first contract signed by the Joiners, these documents did not have “SUBJECT TO CREDIT APPROVAL” stamped anywhere on them. However, despite the fact that the Joiners signed these documents on May 26, 2001, neither document was signed by a representative of Bill Hood. Again, the Joiners were allowed to retain possession of the truck, but were advised by a representative of Bill Hood that they would need to provide certain information in connection with their credit application. According to the record, the Joiners never produced the information necessary to complete the deal, in spite of numerous requests by Bill Hood and its representatives. Thereafter, Bill Hood asked the Joiners to return the truck, a request that the Joiners did not honor.

Sometime between the original application for credit on April 28, 2001, and the second one on May 26, 2001, Bill Hood sold the Joiners’ 1998 Mustang to a third party in Baton Rouge. When Bill Hood realized that the transaction with the Joiners was not going to be finalized, the Mustang was reacquired, and the Joiners were advised that it was at the dealership. Before the Mustang was returned to Bill Hood, it was driven approximately four thousand miles. There were also new tires and rims put on the Mustang by Bill Hood.

On August 14, 2001, the Joiners filed the instant suit for damages against Bill Hood seeking damages they suffered as a result of Bill Hood’s tortious conduct. In response, Bill Hood filed an answer, generally denying the allegations of the Joiners’ petition, and a reconventional demand, requesting a rescission of the transaction and a writ of sequestration. The truck was subsequently seized pursuant to a writ of sequestration that was issued without bond and was signed by the trial court on September 6, 2001. A $5,000.00 bond was later posted by Bill Hood on October 17, 2001.

On November 9, 2001, this matter came before the trial court on a motion filed by the Joiners to dissolve the writ of sequestration. After hearing the evidence and arguments from counsel, the trial court denied the motion for dissolution of the writ of sequestration, finding that no contract existed between the Joiners and Bill Hood. A judgment in accordance with the court’s findings was signed on January 22, 2002, | ¿wherein the court ordered that the judgment be deemed final for purposes of appeal. It is from this judgment that the Joiners have appealed, assigning the following specifications of error:

1. The trial court erred when it failed to dissolve a Writ of Sequestration which was obtained prematurely and in improper form as it lacked the required security provided in LA. C.C.P. Article 3501 (i.e. a bond) and the demonstration of a lawful cause.
2. The trial court erred when it failed to find a contract of sale existed and was ratified when, despite the lack of signatures, a buyer signs a contract that is not marked “subject to credit approval” and relinquishes their vehicle as a trade-in, which was sold to a third party before being offered to be returned in an altered condition.

VALIDITY OF THE WRIT OF SEQUESTRATION (Assignment of Error 1)

In their first assignment of error, the Joiners assert that the writ issued by the trial court on September 6, 2001, was obtained prematurely and was in improper form because it lacked the security required by La.Code Civ. P. art. 3501. We disagree.

The Louisiana Supreme Court has described a writ of sequestration as an “extremely harsh remedy which is only extended where the formalities of the law have been strictly and literally complied with.” Hancock Bank v. Alexander, 256 La. 643, 652, 237 So.2d 669, 672 (1970); Matherne v. Estate of Matherne, 341 So.2d 1254, 1257 (La.App. 1 Cir.1976), writ denied, 343 So.2d 1072 (La.1977). Pursuant to La.Code Civ. P. art. 3501, a writ of sequestration “shall issue only when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the petition verified by, or by the separate affidavit of, the petitioner, his counsel or agent.” Article 3501 further provides that anyone applying for a writ of sequestration “shall furnish security as required by law.”

Louisiana Code of Civil Procedure article 3571 prescribes the grounds for sequestration as follows:

When one claims the ownership or right to possession of property, or a mortgage, security interest, lien, or privilege thereon, he may have the property seized under a writ of sequestration, if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the parish, during the pendency of the action.

| sWith regard to the security required for a writ of sequestration, La.Code Civ. P. art. 3574 provides that “[a]n applicant for a writ of sequestration shall furnish security for an amount determined by the court to be sufficient to protect the defendant against any damage resulting from a wrongful issuance, unless security is dispensed with by law.” Moreover, under certain circumstances, the court may order sequestration on its own motion. Pursuant to La.Code Civ. P. art. 3573, “[t]he court on its own motion may order the sequestration of property the ownership of which is in dispute without requiring security when one of the parties does not appear to have a better right to possession than the other.” Thus, a trial court may order a sequestration upon finding that ownership over the property is in dispute and that neither party appears to have a better right of possession. A trial court’s exercise of its discretion to order a sequestration on its own motion is given much deference and will not be disturbed absent manifest error. Conway v. Stratton, 434 So.2d 1197, 1200 (La.App. 1 Cir.1983).

In the instant case, Bill Hood filed a reconventional demand on September 4, 2001, requesting that a writ of sequestration issue, without bond, to protect its rights with regard to the 2000 Ford pickup truck in question. The sequestration was issued as prayed for, without bond, by the trial court on September 6, 2001, ordering the Sheriff of Tangipahoa to sequester the truck and hold it subject to further orders of the court. Subsequently, on October 17, 2001, a $5,000.00 bond was posted by Bill Hood as security for the sequestration that was previously issued by the trial court.

In denying the Joiners’ motion to dissolve the writ of sequestration, the trial court noted that pursuant to Article 3573, the court, on its own motion, could order a sequestration without bond. The court continued indicating that although a bond had been posted in this case, it may not have been necessary based on the evidence presented to the court. The court declined, however, to disturb the bond, stating it would rather the bond remain in case the court’s decision was reversed on appeal and there were damages associated therewith.

The Joiners have cited no authority for their position that the failure to post a bond alone was a fatal defect to the writ of sequestration in this case. Rather, the cases cited |fiby the Joiners in brief were instances where writs of sequestration were dissolved due to a lack of foundation. See, e.g. Hancock Bank v. Alexander, 256 La. 643, 237 So.2d 669 (1970) and Huval Tractor, Inc. v. Journet, 413 So.2d 978 (La.App. 3 Cir.), writ denied, 420 So.2d 446 (La.1982). This is certainly not the case here. Bill Hood’s request for a writ of sequestration was fundamentally sound. The foundation for the sequestration was clearly stated by Bill Hood in its reconven-tional demand as is required by Article 3501 for a valid writ of sequestration.

Based on our review of the evidence before us now, we find no manifest error in the trial court’s decision to maintain the writ of sequestration in this case. The law is clear that “the allowance or disallowance of sequestration is a matter of judicial discretion, likewise the allowance without bond.” J.C. Trahan Drilling Contractor, Inc. v. Sterling, 335 F.2d 65, 66 (5th Cir.1964). See also Ludwig v. Calloway, 191 La. 1000, 1005, 187 So. 4, 5 (1939) (holding that the mere fact that the litigants requested a writ of sequestration had no effect on the validity of the trial court’s order granting the sequestration without bond). In the instant case, we cannot say that the trial court exceeded the wide latitude and discretion afforded it in ordering the sequestration without bond. We find no manifest error, and thus, will not interfere with the trial court’s discretion in this matter. This assignment of error is without merit.

VALIDITY OF THE SALE (Assignment of Error 2)

In assignment of error number two, the Joiners attack the trial court’s finding that there was no contract of sale between the parties. The Joiners contend that the May 26, 2001 contract of sale was a valid contract, as it was not conditioned on financing. Further, the Joiners argue that the contract was ratified when their trade-in was sold by Bill Hood. Following our review of the record, we agree with the trial court’s finding that no contract of sale existed between the Joiners and Bill Hood.

The contract of sale is an agreement by which one gives a thing for a price in current money, and the other gives the price in order to have the thing itself. Three circumstances must exist for perfection of the contract: the thing sold, the price, and |7consent. La. Civ.Code art. 2439; Alco Collections, Inc. v. Poirier, 95-2582, p. 5 (La.App. 1 Cir. 9/27/96), 680 So.2d 735, 739, writ denied, 96-2628 (La.12/13/96), 692 So.2d 1067; Evans v. Graves Pontiac-Buick-GMC Truck, Inc., 576 So.2d 1025, 1028 (La.App. 1 Cir.), writ denied, 581 So.2d 687 (La.1991). “A conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.” La. Civ.Code art. 1767. The obligation subject to a condition in the instant case is the sale of the 2000 Ford F-350 truck.

At the hearing on November 9, 2001, Eddie Collier, general sales manager of Bill Hood, testified regarding the events surrounding the transaction with the Joiners. Mr. Collier indicated that when the original credit application — which was signed by the Joiners on April 28, 2001— was denied by Hibernia National Bank, the Joiners were advised that they needed to return to Bill Hood to sign another contract. When asked why it took a month to get the second contract signed, Mr. Collier responded, “It did not take a month. They had another approval the first week of May. The Joiners did not come back in until May 26th.” According to Mr. Collier, Bill Hood had obtained conditional approval for the Joiners’ loan through a sub-prime lender, Fairlane Credit LLC. Mr. Collier maintained that this approval was conditioned upon certain stipulations being satisfied. The Joiners returned to Bill Hood, after hours, on Saturday, May 26, 2001. Mr. Collier testified that two Bill Hood employees, “Allen” and “Wayne,” stayed to finalize the deal with the Joiners. “Allen” was later identified by Mr. Collier as Allen Sanders, finance manager for Bill Hood.

During his testimony concerning the details of this transaction, Mr. Collier was asked to identify a document that was later introduced into evidence, over the objection of counsel for the Joiners, as “Hood # 6.” Mr. Collier described “Hood # 6” as a list prepared by Allen Sanders on May 26, 2001, indicating what documents the Joiners would need to produce in order to get financing through Fairlane Credit LLC. The following colloquy occurred between Mr. Collier and counsel for Bill Hood:

|SQ As a sales manager you’re familiar with records and documents in connection with various deals is that correct?
A Yes.
Q I’m going to show you a document and ask if you can recognize this as a portion of the Joiner record in your file? A This is the document that Allen Sanders wrote down everything that was needed to complete the sale the late night that they were there and wrote on it that they were faxing in on Monday everything else that was needed on there to complete the sale.
Q And that is a regular type of record that you maintain in the course of business isn’t it?
A Oh yes, um-hum.
Q And you see these with some frequency?
A On all sub-prime deals.
Q Mr. Collier the document reflects what Mr. and Mrs. Joiner were producing in connection with their Fairlane Credit ap is that right?
A Yes it is.
Q Would you tell the court what the document indicates they were told to furnish?
A Proof of income, proof of residence, mortgage name and phone number, references, and tax returns which would include the Schedule C for POI [proof of income].
Q Now based on your familiarity with the finance aspect of the car deals when you’re dealing with sub-prime customers or lenders is this typical of the type of requirement that you would see based on your experience?
A Yes it is on all of them.
Q Is there anything unusual at all about these requirements?
A No.
Q Is there, as far as your company is concerned is there ever in terms of the company policy if you will, what are your sales people that work for you instructed to tell customers in terms of their financing requirements?
A What’s required for contract cashing and finalization of the sale.
Q Based on company policy then and based on that document Mr. and Mrs. Joiner would have been told that they had to furnish these documents?
A Yes they would have.
_k- • • •
Q Is there any possibility based on your experience that Mr. and Mrs. Joiner would have obtained financing from Fairlane based on the records that you had available? That they would obtain financing without those documents?
A No it would not.

A review of the documents signed by the Joiners on May 26, 2001, corroborates this testimony by Mr. Collier. On the “RETAIL BUYER’S ORDER/LEASE FORM,” the finance company is listed as Fairlane Credit LLC. Moreover, on the “VEHICLE APPLICATION,” Fairlane Credit LLC is named as the first lienholder. It is clear from the record "that Bill Hood never intended to finance the purchase price of the truck. Rather, approval of the financing in connection with the contract signed on May 26, 2001, was subject to a suspensive condition; i.e., that the Joiners would produce certain information regarding proof of income and proof of residence, a condition that never occurred. Even Mr. Joiner acknowledged that Bill Hood did not finance the purchase of the truck. When asked if he ever made payment to Bill Hood for his truck, he responded: “No sir because I wasn’t going to send them money for something, I mean, they didn’t finance me so there wasn’t no sense in me giving Bill Hood money.”

During their first visit to Bill Hood on April 28, 2001, the Joiners made representations to Bill Hood about their income in order to get financing for the purchase of the truck. When asked how much he told Bill Hood his income was, Mr. Joiner testified, “I put a lot less than what I make because they don’t need to know how much I make.... Yeah. I mean I could have put on there twenty thousand a month.” Bill Hood made this sale with the Joiners relying, in good faith, on the financial information provided by the Joiners. Assuming that the information was correct, Bill Hood knew that financing would not be a problem. However, as is clear from the record, the Joiners never fulfilled their obligation of providing the documents necessary to finalize the financing. The approval of financing by Fairlane Credit LLC was the uncertain event that 'suspended enforcement of the sale in this case. Because the suspensive condition in this case never occurred, the sale is null and void and unenforceable. See Evans, 576 So.2d at 1029. 1m Accordingly, the trial court was correct in its finding that there was no contract between the Joiners and Bill Hood and that Bill Hood still owns the truck in question. This assignment of error lacks merit.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs associated -with this appeal are assessed against plaintiffs-appellants, Todd and Carla Joiner.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

| FITZSIMMONS, J.,

concurring with reasons.

I respectfully concur. Before the hearing, a bond was posted. After the posting, the issue was whether the order lacked foundation. On this record, the trial court did not abuse its discretion in refusing to dissolve the writ of sequestration.

      . With regard to Bill Hood's sale and later reacquisition of the Joiners’ trade-in, we find, as did the trial court, that this is a separate issue that does not affect the validity of the sequestration. Although we acknowledge that Bill Hood mishandled the transaction involving the trade-in, these actions cannot, in anyway, be equated with ratification of a contract that never existed. The question of whether the Joiners suffered any damages as a result of Bill Hood’s actions with regard to the trade-in remains an issue to be resolved another day.


author: lguidry, J. b FITZSIMMONS, Judge,

text:
    STATE of Louisiana, o/b/o Lisa Brinson DILLASHAW v. Casey Joe BRINSON.
    No. 2002 CA 0896.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.
    Tony G. Sanders, Covington, Counsel for Plaintifi/Appellee State of Louisiana, o/b/o Lisa Brinson Dillashaw.
    James E. Moorman, III, Covington, Counsel for Defendant/Appellant Casey Joe Brinson.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   lguidry, J.

In this action to rescind a tax dependency deduction, the appellant, Casey Joe Brinson, appeals the trial court’s judgment granting appellee’s, State of Louisiana o/b/o Lisa Brinson Dillashaw (State), Motion to Rescind Income Tax Deduction and awarding the deduction for both children to Lisa Brinson Dillashaw. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Casey Joe Brinson and Lisa Brinson Dillashaw were previously married and were domiciled in the parish of St. Tammany, State of Louisiana. During the marriage, two children were born, Aleigha and Brooke Brinson. On February 12, 1996, Mr. Brinson and Ms. Dillashaw entered into a consent judgment. Pursuant to this judgment, the parties were awarded joint custody of their two children, with Ms. Dillashaw designated as the domiciliary parent, Mr. Brinson was ordered to pay child support in the amount of $900 per month, and Mr. Brinson was awarded the right to claim the state and federal income tax deduction for Aleigha. Thereafter, on October 9, 1996, a judgment of divorce was entered.

Ms. Dillashaw subsequently moved to Florida and instituted proceedings in that state for Mr. Brinson’s failure to pay child support. On February 4, 2000, the State filed a petition to register a foreign support order for enforcement and a rule to show cause for contempt. Additionally, on March 30, 2000, the State filed a UIFSA order to show cause. In response, on May 11, 2000, Mr. Brinson filed a motion to recognize exclusive jurisdiction, motion to transfer, and rule for reduction in child support. Following a hearing on May 25, 2000, the hearing officer modified Mr. Brinson’s child support obligation, deviating from the child support guidelines because of an ill child in Mr. Brinson’s home. Pursuant to this judgment, Mr. Brinson was ordered to pay $778 per month plus an additional $75 |aper month towards his ar-rearages. No appeal was taken from this judgment and the judgment became final on June 13, 2000.

On January 16, 2001, the State filed a Motion to Rescind Income Tax Deduction. Mr. Brinson filed an Exception of Insufficiency of Service and Vagueness, which was granted on March 1, 2001. The State thereafter filed another Motion to Rescind Income Tax Deduction on March 6, 2001. In a judgment rendered on April 6, 2001, the hearing officer denied the State’s motion. The hearing officer indicated in her reasons for judgment that Mr. Brinson bears more than fifty percent of the child support obligation, there were no new arrears since the last hearing, and he has a very ill child in his home. Furthermore, the hearing officer found that the benefit to Mr. Brinson outweighed any detriment to Ms. Dillashaw, who was then remarried.

Following the hearing officer’s decision, the State requested a judge hearing, which was held on June 28, 2001. In a judgment signed September 26, 2001, the trial court awarded the right to claim both children as dependency deductions to Ms. Dillashaw on her state and federal income tax returns, commencing with the 2001 tax year.

ASSIGNMENTS OF ERROR

Mr. Brinson now appeals the judgment of the district court and asserts the following assignments of error:

1. Ms. Dillashaw, the moving party, bore the burden of proof on her Rule to Rescind Income Tax Deduction, and the trial court’s holding that Mr. Brinson, the non-moving party, bore the burden of proof constituted manifest error.
2. The trial court committed manifest error in denying Mr. Brinson’s motion for directed verdict when the State failed to present any evidence to ^establish that Mr. Brinson was not entitled to claim the tax dependency deduction.
3. The trial court committed manifest error in granting the State’s Motion to Rescind Income Tax Deduction because the State failed to show a substantial change in circumstances occurring subsequent to the prior judgment awarding Mr. Brinson the deduction for Aleigha.

DISCUSSION

Louisiana Revised Statutes 9:315.1s provides in part:

A. The amounts set forth in the schedule in R.S. 9:315.14 presume that the custodial or domiciliary party has the right to claim the federal and state tax dependency deductions and any earned income credit. However, the claiming of dependents for federal and state tax purposes shall be as provided in Subsection B of this Section.
B. (1) The non-domiciliary party whose child support obligation equals or exceeds fifty percent of the total child support obligation shall be entitled to claim the federal and state tax dependency deductions if, after a contradictory motion, the judge finds both of the following:
(a) No arrearages are owed by the obligor.
(b) The right to claim the dependency deductions or, in the case of multiple children, a part thereof, would substantially benefit the non-domiciliary party without significantly harming the domiciliary party.

In the instant case, Mr. Brinson, the non-domiciliary party, was awarded the tax dependency deduction for Aleigha pursuant to the February 12, 1996 consent judgment. Therefore, in moving to have the tax dependency deduction for Aleigha taken away from Mr. Brinson and awarded to Ms. Dillashaw, the State bore the burden of proving that Mr. Brinson was not entitled to the tax deduction. Based on our review of the record before us, we do not ñnd that the trial court erred in determining that the State presented sufficient proof not only to withstand Mr. Brinson’s motion for a directed verdict, but also to prove Ms. Dillashaw’s entitlement to the tax deduction for both Aleigha and Brooke.

| RWhile the language of the above statute does not anticipate or directly deal with the situation where the non-domiciliary party was awarded the deduction and the domiciliary party seeks to have the deduction taken away, the basic presumption and criteria as outlined above are instructive as to what the State is required to prove in the instant case. At the hearing before the trial court, the State produced evidence not only that Mr. Brinson still had an existing arrearage on his child support obligation, which he was making payments on, but also that Ms. Dillashaw would be significantly harmed by paying substantially more in taxes if she were not awarded the tax deduction for Aleigha.

Both elements of La. R.S. 9:315.13(B)(1) must be satisfied in order for a non-domiciliary party to be entitled to the tax dependency deduction. In the instant case, on either ground, Mr. Brinson would not be entitled to the tax deduction for Aleigha as he has an existing arrearage, and significant harm to Ms. Dillashaw, as detailed above, would result if the tax deduction were not awarded to her. Therefore, based on our review of the record and the trial court’s findings, and the strong presumption that the domiciliary party should receive the tax dependency deductions, we do not find that the trial court erred in awarding the tax deduction for Aleigha to Ms. Dillashaw.

Additionally, we note that Mr. Brinson’s assignment of error relating to the failure of the State to show a substantial change of circumstances is without merit. The requirement that a change of circumstances be shown is only applicable when an increase or decrease in an award of support is sought. See La. R.S. 9:311 and |fiLa. C.C. art. 142. In the instant case, no modification of the child support obligation is sought. Rather, the State seeks, through this nonsupport action, a determination as to the allocation of the tax dependency deduction for Aleigha. Therefore, we do not find that a showing of a substantial change of circumstances was necessary to that determination.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court and all costs of this appeal are to be borne by the appellant, Casey Joe Brinson.

AFFIRMED.

FITZSIMMONS, J., concurs and assigns reasons.

b FITZSIMMONS, Judge,

concurring with reasons.

I respectfully concur in the result reached by the majority. Mr. Brinson was precluded from the right to claim the federal state tax dependency deductions and any earned income credit when the motion was asserted and granted, because he owed existing arrearages in his child support obligations. La. R.S. 9:315.13 B(l)(a).

      . Pursuant to 2001 La. Acts 1082, La. R.S. 9:315.13 was amended and reenacted as La. R.S. 9:315.18. However, the amendments and redesignation are not applicable to the instant action.

      . Mr. Brinson argues on appeal that because no new arrears accrued from the May 25, 2000 judgment, La R.S. 9:315.13(B)(1)(a) is satisfied. However, the language of this statute does not specify a time frame for accrual of an arrearage, but only requires that no arrearages are owed by the obligor. At the time of hearing on the above motion to rescind the income tax deduction, Mr. Brinson clearly had an existing arrearage, which he continued to make payments toward.


author: J^FITZSIMMONS, J. h GUIDRY, J.

text:
    Earl PENN v. ST. TAMMANY PARISH SHERIFF’S OFFICE, et al.
    No. 2002 CA 0893.
    Court of Appeal of Louisiana, First Circuit.
    April 2, 2003.

      William E. Bradley, Prescott L. Bar-field, Mandeville, Counsel for Plaintiff-Appellant Earl Penn.
    R. Bradley Lewis, Mandeville, Counsel for Defendants-Appellees St. Tammany Parish Sheriff Jack Strain and Deputy Jeffrey Mayo.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Earl Penn appeals the grant of summary judgment by the court in favor of Jack Strain, Sheriff of St. Tammany Parish, and Jeffrey Mayo. This court affirms; however, we do not adopt the reasoning supplied by the district court from the bench.

PROCEDURAL POSTURE

Mr. Penn filed suit against the Parish of St. Tammany; Jack Strain, St. Tammany Parish Sheriffs Office; Jeffrey Mayo, St. Tammany Parish Jail Correction officer (collectively the “Parish”), as well as the City of Covington and Officer Stefan Montgomery, City of Covington Police officer (collectively the “City”). Mr. Penn’s lawsuit alleged excessive force by the Parish when Deputy Mayo used an electronic shield against Mr. Penn’s back and shocked him after Mr. Penn was forced against a metal wall at the St. Tammany Parish jail.

Covington Police Officer Montgomery arrested Mr. Penn and transported him to the St. Tammany Parish jail, where custody of Mr. Penn was assumed by St. Tammany Parish Deputy Mayo. Mr. Penn was later convicted of a battery on Officer Montgomery committed during the arrest. The Parish of St. Tammany was voluntarily dismissed without prejudice in a joint motion filed by the Parish of St. Tammany and Mr. Penn. The City moved for summary judgment on the basis of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and its progeny. The unopposed summary judgment was granted by the court to the City.

The Parish, thereafter, similarly moved for summary judgment on the basis of the holding in Heck v. Humphrey, supra, reasonableness of force, and qualified immunity. The district court granted the Parish’s motion for summary judgment, stating in oral reasons issued from the bench that the court was “going to | .-¡apply a strict interpretation of the Heck case because [Mr. Penn] was subsequently convicted of battery on a police officer and is precluded from asserting any claim.”

DISCUSSION

In determining whether summary judgment is appropriate, appellate courts review evidence de novo, applying the same criteria that govern the lower court’s determination of whether summary judgment is justified. Sanders v. Ashland Oil, Inc., 96-1715, p. 7 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, 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. C.C.P. art. 966 B. Summary judgment is favored, and it “is designed to secure the just, speedy and inexpensive determination of every action.” La. C.C.P. art. 966 A(2). We first focus our attention on the holding in Heck and its application vel non to Mr. Penn’s allegations.

In Heck, the United States Supreme Court held that a 42 U.S.C. § 1983 claim to recover damages for an allegedly unconstitutional conviction or imprisonment does not accrue until or unless the conviction or sentence is reversed. Heck, 512 U.S. at 486-487, 114 S.Ct. at 2372. Following the Court’s explanation that a section 1983 claim for damages inextricably related to the viability of a conviction is not cognizable, the Court expressly limited the scope of Heck in the following language: “But if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487, 114 S.Ct. at 2372-2373. In the case before this court, the conviction for battery committed upon the Covington police officer pursuant to Mr. Penn’s arrest, is [ independent of the subsequent claim against the Parish officer for his use of an electric rod on Mr. Penn at the Parish prison. Applying the analysis established in Heck and its progeny, if Mr. Penn were to successfully prove the existence of a section 1983 violation by the Parish officer, such an action would not per se result in an invalidation of the judgment against Mr. Penn for the battery committed on the Covington police officer. Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.1995). Thus, this court cannot embrace the reasoning supplied by the district court in its dismissal of Mr. Penn’s claim.

Nevertheless, we agree with the district court’s grant of summary judgment because Mr. Penn failed to rebut the Parish’s demonstration that it did not use excessive force against Mr. Penn. An excessive force assertion based on section 1983 is a federal constitutional claim that is analyzed via Fourth Amendment constitutional standards. Stroik v. Ponseti, 35 F.3d 155, 157 (5th Cir.1994), cert denied, 514 U.S. 1064, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995). The relationship of the amount of force used to the need presented, the extent of injury, and the motives of the officer determines whether the Parish exceeded the constitutional limits such that there was also an actionable physical abuse under 42 U.S.C. § 1983. Ross v. Sheriff of Lafourche Parish, 479 So.2d 506, 512 (La.App. 1st Cir.1985) (quoting Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981)). If the officer’s actions were grossly disproportionate to the need for action under the circumstances, rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under section 1983. Id. The plaintiff is thus required to show a significant injury that resulted from the use of objectively unreasonable force that was clearly excessive of the need. Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.1991).

|Jn conjunction with its motion for summary judgment, the Parish attached several affidavits attesting to the verbally abusive, uncooperative, and aggressive actions by Mr. Penn prior to his arrival at the Parish jail and when he was entering the jail premises. Deputy Mayo stated that Mr. Penn had repetitively yelled at him and had turned aggressively toward the officer after being told to move forward. Deputy Mayo indicated that he did not apply the electric shield until after Mr. Penn had yelled and become aggressive and Deputy Mayo had been unsuccessful in getting cooperation with verbal commands.

Deputy Sheriff Lawrence Elsensohn, Jr. assisted Deputy Mayo. Deputy Elsensohn witnessed Mr. Penn’s verbally abusive, agitated attitude and his refusal to move forward when Deputy Mayo gave him several verbal commands. He attested to Mr. Penn’s refusal to comply on each of these two occasions, even after Deputy Mayo approached him with the electric shield and advised Mr. Penn to stop resisting before using the shield. Instead, Mr. Penn started yelling aggressively and turned toward Deputy Mayo.

Officer Montgomery also attested to Mr. Penn’s extreme violence and resistance as he and Police Officer Stephen Culotta attempted to place Mr. Penn under arrest. They required the assistance of a third person to handcuff and transport Mr. Penn, who continued to be verbally vulgar and to struggle with the deputies. The Covington police department alerted the officers at the Parish jail that the officers were en route with a combative prisoner. Officer Montgomery additionally observed Mr. Penn’s recalcitrant and boisterous behavior at the Parish jail door, and he saw Deputy Mayo apply a burst of the electric shield to control combative and resistive behavior. He witnessed Deputy Mayo apply another short burst of electric shield after several unsuccessful vocal orders by the deputies when Mr. Penn began yelling and cursing at the deputies, creating a disturbance, and exciting other prisoners who were being booked. Officer Montgomery indicated | fithat Deputy Mayo was attempting to control what was “becoming a possibly dangerous situation.”

Officer Culotta stated that as he approached Mr. Penn for a traffic stop, Mr. Penn jumped up and hit him in the chest with his right elbow and then pushed him away. When he and Officer Montgomery attempted to handcuff Mr. Penn to place him into custody, Mr. Penn became extremely violent and resistive and attempted to flee. Even after Officer Montgomery sprayed Mr. Penn with a burst of pepper spray, he continued to resist and exhibit combative behavior.

The initial burden of proof clearly rests with the Parish as the movant. However, after the mover has properly supported the motion and carried the initial burden of proof, the non-moving party must submit evidence showing the existence of specific facts establishing a genuine issue of material fact. Scott v. McDaniel, 96-1509, p. 5 (La.App. 1 Cir. 5/9/97), 694 So.2d 1189, 1191-1192, writ denied, 97-1551 (La.9/26/97), 701 So.2d 991. If the non-moving party fails to rebut the initial proof by the moving party, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967. Mr. Penn offered no affidavits or supporting documentation whatsoever to counter the documented evidence submitted on behalf of the Parish.

Mr. Penn’s prior abrasive behavior during his arrest by the City, the risks and dangers faced by the officers in dealing with a person who was physically difficult to restrain, the brevity of the use of the electric shield, the attempt at alternative prior means of restraint without success, the lack of demonstrated residual injury to Mr. Penn, and the need to maintain control of a potentially unruly situation collectively justify the application of two short bursts of the electric shield by Deputy Mayo. Deputy Mayo’s actions did not constitute excessive force under the circumstances or a violation of Mr. Penn’s constitutional rights under section 1983.

| ^Deputy Mayo’s actions also fail to rise to the level of excessive force under state law. Louisiana Code of Criminal Procedure article 220 provides:

A person shall submit peaceably to a lawful arrest. The person making a lawful arrest may use reasonable force to effect the arrest and detention, and also to overcome any resistance or threatened resistance of the person being arrested or detained. (Underlining added.)

The use of force by law enforcement officers is thus scrutinized by considering the “reasonable force” standard established by La.C.Cr.P. art. 220. Factors in determining whether the force exerted was reasonable under the circumstances entail: the known character of the arres-tee; the risks and dangers faced by the officer; the nature of the offense or behavior involved; the chance of escape if the particular means are not employed; the existence of alternative methods of arrest or subduing the arrestee; the physical strength, size and weaponry of the officers as compared to that of the arrestee; and the exigencies of the moment. See Kyle v. City of New Orleans, 353 So.2d 969, 973 (La.1977). Excessive force transforms ordinarily protected use of force into an actionable battery, rendering the defendant officer and his employer liable for damages. Ross, 479 So.2d at 511. Given the circumstances and Mr. Penn’s behavior at the jail, the force applied by Deputy Mayo constituted ordinarily protected use of force.

Summary judgment is affirmed. All costs associated with this appeal are assessed to Earl Penn.

AFFIRMED.

GUIDRY, J., concurs in the result and assigns reasons.

h GUIDRY, J.

concurring.

I respectfully concur in the result of the majority. According to Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) “all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.” In applying Graham, the Fifth Circuit has used a three-part test for section 1983 excessive force claims, requiring a plaintiff to show (1) significant injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Stroik v. Ponseti, 35 F.3d 155, 157 (5th Cir.1994), cert denied, 514 U.S. 1064, 115 S.Ct. 1692, 131 L.Ed.2d 556 (1995).

The “reasonableness inquiry” in an excessive force claim is an objective one, with the question being whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Reese v. Anderson, 926 F.2d 494, 500 (5th Cir.1991). While I agree with the majority that Mr. Penn failed to rebut the | ^Parish’s demonstration that the force used was reasonable and not excessive, I do not agree with the majority’s inclusion of substantive due process criteria in reaching its determination. Therefore, I write separately to concur in the result reached by the majority.