author: I, WILLIAM H. BYRNES, III, Chief Judge.

text:
    Jonathan B. AINSWORTH v. Harold R. AINSWORTH, Jr. & Richard C. Ainsworth.
    No. 2003-C-1626.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2003.
    Writ Denied Jan. 9, 2004.

      Jonathan B. Ainsworth, New Orleans, LA, In Proper Person, Relator.
    Claude A. Schlesinger, Sidney L. Shush-an, Guste, Barnett & Shushan, L.L.P., New Orleans, LA, for Respondents.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge JOAN BERNARD ARMSTRONG, and Judge TERRI F. LOVE).
   I, WILLIAM H. BYRNES, III, Chief Judge.

The relator, Jonathan B. Ainsworth, requests expedited consideration of his writ application to enjoin the civil sheriffs sale of property. The relator’s request to proceed in forma pauperis is denied. His request for a stay order is denied. Although his request for expedited review is granted, relief is denied. We affirm the trial court’s judgments.

The relator and his two brothers, Harold R. Ainsworth, Jr., and Richard C. Ains-worth, each inherited as co-owners, equal interest in the property, 7500 General Haig, New Orleans, as part of their father’s succession. Harold and Richard Ainsworth filed a petition for partition of the property, and Jonathan Ainsworth contested the partition and sale. On July 21, 2003, the trial court entered three judgments, including the ordering of the partition of the property at the civil sheriffs sale, ordering the reimbursement to Richard Ainsworth for taxes paid, and changing the relator’s pauper status.

Jonathan Ainsworth contends that: (1) he was not properly served with the citation and summons; (2) he was not advised or served with the date of the June 27, 2003 hearing; and (3) he was not sent a notice of signing the July 21, 2003 judgment until September 10, 2003.

| ¡.Further, Jonathan Ainsworth argues that: (4) the trial court erred in not appointing a curator and attorney to represent his brother, Harold, based on the relator’s claim that Harold is mentally incompetent and has interests that conflict with that of his brother Richard; and (5) the trial court did not review the relator’s motion for recusal of the trial judge. The relator also asks that: (6) he may proceed in forma pauperis on appeal because he has a bad back, is totally disabled, and receives government disability payments. The relator also claims that: (7) the minimum bid for the sale of the property is too low. The relator asks that this Court restrain, prohibit or enjoin the Orleans Parish Sheriffs Office from selling the property.

In Forma Pauperis

The relator Jonathan Ainsworth asserts that he should be allowed to proceed in forma pauperis to pursue a review of his claims because he is indigent.

The trial court is afforded wide discretion in determining whether to grant the privilege to litigate informa pauperis. La. C.C.P. art. 5181; Starks v. Universal Life Ins. Co., 95-1003 (La.App. 1 Cir. 12/15/95), 666 So.2d 387; Armont v. Board of Com’rs of Gramercy Recreation Dist., 358 So.2d 358 (La.App. 4 Cir.1978). Such discretion must be exercised reasonably and is subject to review for abuse. McCoy v. Winn-Dixie Louisiana, Inc., 339 So.2d 976 (La.App. 4 Cir.1976), reversed on other grounds, 345 So.2d 1175 (La.1977).

Although Jonathan Ainsworth initially was allowed to proceed in former pauperis in the trial court, by judgment of July 21, 2003, the trial court granted Harold and Richard Ainsworth’s motion to revoke Jonathan’s pauper status.

In addition to his disability payments, the relator resides on the property at issue without paying rent. Relator is a co-owner of the property. Although the | ^relator asserts that he does not have the inheritance yet, his deceased aunt also left him a $1,000 legacy, as well as an additional legacy of $50,000. Respondents noted that: “However, [the relator] is challenging the legitimacy of the will, alleging that his deceased aunt had made a verbal commitment to leave her entire estate to himself and his fiance’.... ”

In making his claims, the relator omitted some facts and embellished others. His assertions are misleading. For example, the relator did not mention that the trial court revoked his pauper status although he included a copy of that judgment. The relator states that he “may receive a $50,000 bequest from his late aunt’s estate; however, there is a -will contest currently pending and [he] cannot say when or if he will ever see or receive an inheritance with any degree of certainty.” The relator did not mention that he is contesting the will based on the claim that his aunt left him even more than the $50,000 bequest, i.e. her entire estate. The relator does not show that any parties claim that the $50,000 bequest to him is invalid.

The relator also will receive one-third of the proceeds from the judicial sale of the property bequeathed by his father.

Further, the relator did not provide an affidavit of a person supporting the mover’s pauper status as required by La. C.C.P. art. 5183(2).

The relator’s portion of the inheritances is delayed by his challenge to his aunt’s will, as well as his challenge to the partition of his father’s property at issue. The record shows that the relator filed various pleadings with claims that are needlessly repetitive. The relator should not be entitled to abuse the system by continuing to file extensive pleadings that result in needless delay. We infer that the most likely reason for this delay is for the relator to continue to live on the property rent-free.

|4The relator did not give sufficient evidence to show that he is destitute to a degree that would qualify him to proceed informa pauperis. The trial court did not abuse its discretion in determining that the relator is not entitled to pauper status. Jonathan Ainsworth’s application to proceed in forma pauperis in this Court is denied.

Partition

Partitions can be either nonjudicial or judicial, but must be judicial when the parties cannot agree upon a nonjudicial partition. La. C.C. art. 809; La. C.C.P. arts. 4601, 4602; Welch v. Zucco, 27,634 (La.App. 2 Cir. 12/6/95), 665 So.2d 697. Limitations on the right to partition are to be strictly construed. Campbell v. Pasternack Holding Co., Inc., 625 So.2d 477 (La.1993).

It must be shown that an agreement by the parties not to partition is definite and certain. Walker v. Chapital, 218 La. 668, 50 So.2d 641 (1951). In Giardina v. Giardina, 181 La. 42, 158 So. 615 (1935), the Louisiana Supreme Court rejected an agreement between co-heirs of realty to postpone a partition until the realty values improved and a fair price could be obtained. The Supreme Court held that the agreement was unenforceable for indefiniteness.

In the present case, the relator failed to show that the parties continue to agree to a private sale or nonjudicial partition. The respondents asserted that the parties could not agree to a private sale after the attempted sale of the property by a real estate agent. When the nature of the property is such that it cannot be | Rconveniently divided in kind, it is not necessary to produce additional evidence in order for the property to be partitioned by licitation. Bulliard v. Bienvenu, 95-297 (La.App. 3 Cir. 10/4/95), 663 So.2d 373. The nature of the property at issue in the present case is not susceptible to partition in kind but must be ordered by judicial partition by licitation.

In Walker v. Chapital, supra, the Louisiana Supreme Court held that the statutory right, that is granted to anyone who holds property with another to demand the division of the thing held in common by an action of partition, is absolute. Once the interest of the parties in the property has been admitted, the action is not subject to any defense. Id. See also Grouchy v. Williams, 161 La. 909, 109 So. 545 (1926).

In the present case, ultimately, even if the relator succeeds in delaying the partition and sale of the property, even if Harold were interdicted, the relator cannot prevent the partition because any co-owner has the right to demand a partition of the property. Co-owners cannot be compelled to own property in indivisión. La. C.C. art. 807.

In Succession of Riehlman, (1907) 4 Orleans App. 400, the rights of the heir, whose death was presumed, was not lost to him if he reappeared, but his action is against his co-heirs and not against the purchasers at the partition sale; the title to the property so acquired by the purchasers is above attack in that regard.

The relator has no valid claim against the partition of the property. He cannot prevent the partition.

| fíNotice

Jonathan Ainsworth argues that he did not receive proper service of the hearing.

Proper citation is the cornerstone of all actions and actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation. Rivers v. Groth Corp., 95-2509 (La.App. 1 Cir. 9/27/96), 680 So.2d 762. The return of service is prima facie evidence of proper service. La. C.C.P. art. 1292; Billiot Bros., Inc. v. Bercier, 447 So.2d 1090 (La.App. 1 Cir.1988). For purposes of determining whether proper service was made, the return of the officer on the citation is given great weight, and the burden rests on the party attacking it to establish otherwise by clear and convincing evidence. Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451 (La.App. 1 Cir. 6/20/97), 706 So.2d 999. A single witness’ uncorroborated testimony regarding improper service of process is insufficient to overcome the presumption of correctness afforded to a sheriffs return of service. Smith v. Moore, 539 So.2d 888 (La.App. 4 Cir.1989).

In the present case, the respondents provided a copy of the Orleans Parish Sheriffs return, which shows that the sheriff personally served the relator with the original petition on June 18, 2002. Further, Jonathan Ainsworth filed an answer to the petition for partition, as well as a reconventional demand signed on June 19, 2002. The relator’s answer and recon-ventional demand constitute a general appearance, and the relator submitted himself to the jurisdiction of the trial court. La. C.C.P. arts. 6, 925, and 928.

17Subsequent pleadings can be legally served by regular mail. La. C.C.P. art. 1313. However, if a pleading requires an appearance or answer, service by mail is not authorized, and the sheriffs service is

required. La. C.C.P. arts. 2591-2594, 1201; Barrios v. Barrios, 95-1390 (La. App. 1 Cir. 2/23/96), 694 So.2d 290; Johnson v. Johnson, 94-0018 (La.App. 1 Cir. 11/10/94), 645 So.2d 1260.

In In re Medical Review Panel for Claim of Brunet, 578 So.2d 1011 (La.App. 4 Cir.1991), this Court held that the judgment dismissing the petition in a medical malpractice action was an absolute nullity, where the plaintiff did not receive notice of the hearing and did not appear at the hearing or file an opposition.

In the present case, the respondents filed motions and exceptions, including a motion for summary judgment. A motion for summary judgment is a pleading that requires an answer and proper service by the sheriff. Strickland v. Board of Sup’rs of Louisiana State University and Agr. And Mechanical College, 432 So.2d 964 (La.App. 4 Cir.1983). A motion for summary judgment in the form of a rule to show cause requires service by the sheriff. Bergeron v. Hymel, 98-737 (La.App. 5 Cir. 1/26/99), 726 So.2d 482. In Pyle v. Pyle, 2000-55 (La.App. 3 Cir. 6/28/00), 769 So.2d 626, the Third Circuit found that the failure to receive notice of trial did not come within the purview of any of the grounds for annulment of judgment for vices of form.

In Jones v. Decuers, 320 So.2d 348 (La.App. 4 Cir.1975), the appellate court found that where service of a creditor’s attorney’s motion to withdraw and the creditor’s motion to substitute counsel and one other ex parte motion could not have prevented a default judgment from being rendered, the failure of the creditor to serve the judgment debtor with the three ex parte motions was not considered to be “vices of form” under La. C.C.P. art. 2002 or “ill practice” under La. C.C.P. art.2004, resulting in an inequitable situation that would require the annulment of the default judgment. This Court stated:

A motion to substitute counsel is a pleading which requires service upon an adverse party under LSA-C.C.P. Art. 1312. See LSA-C.C.P. Book II, Tit. 1, Chapter 4, Preliminary Statement; 28 La.L.R. 552. Nevertheless, we conclude that this failure to serve does not constitute grounds for nullity under LSA-C.C.P. Art.2002. Comment d to C.C.P. Art.2002 indicates that Subsection 2 only applies when there has been a total lack of citation linof the original petition or when citation is defective. Here, defendant has admitted that he was personally served with process in the original action and the record indicates he also made an appearance in a rule to traverse. Accordingly, the judgment cannot now be nullified for “vices of form.” [Emphasis added.]

Id., 320 So.2d at 350.

In the present case, considering that the relator was personally served with the original petition, and the relator made an appearance, the partition judgment cannot now be nullified for “vices of form” under La. C.C.P. art.2002.

The party seeking an annulment of a final judgment based on fraud or ill practices must show both that the challenged judgment resulted from a deprivation of a legal right and that its enforcement would be unconscionable and inequitable. Guidry v. First Nat. Bank of Commerce, 98-2383 (La.App. 4 Cir. 3/1/00), 755 So.2d 1033.

In Jones v. Decuers, supra, 320 So.2d at 350, this Court further stated:

The failure of the defendant to be served with the motions also does not constitute an [fill practice which would annul the judgment for [v]ices of substance under LSA-C.C.P. Art.2004. LSA-C.C.P. Art.2004[A] provides:
A final judgment obtained by fraud or ill practices may be annulled.
To come within this article and have a default judgment nullified, one must demonstrate how he was prevented or excused from asserting his defenses. Pryor v. Gions, 188 So.2d 739 (La.App. 2 Cir.1968[1966]). Defendant has not shown, since he was represented by counsel, how failure to be notified of the changes of plaintiffs counsel prevented him from filing an answer. Defendant had six years to act. He did nothing. Any improper procedure which enables a party to obtain a final judgment is subject to an action for nullity under LSA-C.C.P. Art.2004. However, in Alonso v. Bowers, 222 La. 1093, 64 So.2d 443, 444 (1953) it is stated:
* * * The courts have looked at each case from a purely equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or | ^unconscionable in view of the practice or procedure which enabled the party to obtain such judgment. * * *
We find that the failure to serve the three ex parte motions did not in any way result in an inequitable situation. We cannot see how service of these motions could have prevented a default judgment from being rendered and, accordingly, the judgment will not be annulled for [i]ll practices. [Emphasis added.]

In Demery v. Nelken, 385 So.2d 531, 532-533 (La.App. 3 Cir.1980), the Third Circuit stated:

The plaintiffs argue that the partition judgment was obtained as a result of “ill practices” on the part of Mr. Nelken and Mr. Gahagan in failing to notify them of the partition suit, failing to conduct the proceedings contradictorily and failing to comply with other duties provided for an attorney appointed to represent an absentee by Articles 5091 through 5096 of our Code of Civil Procedure. Their position in this respect is that the requirements of these articles constitute matters of substance which must be complied with or else the legal proceeding is an absolute nullity, as distinguished from mere informalities or defects which are only relative nullities cured by the prescriptions of Articles 3542 and 3543 of our Civil Code.
We do not agree.
In the first place the record does not reveal that either Mr. Nelken or Mr. Gahagan committed any ill practice under Article 2004. According to the Official Revision Comment:
(b): * * *
Although the courts do not sanction negligence or laches, they have not hesitated “to afford relief against judgments irrespective of any issue of inattention or neglect, when the circumstances under which the judgment is rendered show the deprivation of the legal rights of the litigant who seeks relief, and when the enforcement of the judgment would be uncon-scientious and inequitable.” (Emphasis added.)
The plaintiffs have not shown that either attorney knew of any better addresses for the Demery heirs than those used in the curator’s November 7, 1973, letter or |1%that they did not exercise reasonable diligence to communicate with the defendants in the partition suit and inform them of its pendency. To the contrary, the evidence indicates that most if not all of the heirs received such a notice.
In addition, there is no indication that the Demery heirs were deprived of any legal rights. LSA-C.C.P. Article 4621 provides:
When one of the co-owners of property sought to be partitioned is an absentee, the partition may be effected by licitation, as provided in this Chapter, whether the property is divisible in kind or not.
The petition contains no allegation that the plaintiffs had any defense to the partition suit of which they were deprived or that the price bid for the property at the sale was inadequate.
Although the code provides for a contradictory proceeding against the attorney for an absent heir, in our opinion he is not absolutely required thereby to contest the suit or interpose any defense unless he is aware of same.
Furthermore, LSA-C.C.P. Article 5098 specifically provides:
The failure of an attorney appointed by the court to represent an unrepresented party to perform any duty imposed upon him by, or the violation by any person of, the provisions of Articles 5092 through 5096 shall not affect the validity of any proceeding, trial, order, judgment, seizure, or judicial sale of any property in the action or proceeding, or in connection therewith. [Emphasis added.]

In the present case, the respondents assert that the relator, respondents, and respondents’ counsel attended a hearing on December 6, 2002. The trial court reset the matter until January 10, 2003, in open court with the relator present. The relator did not appear on January 10, 2003, and the civil sheriff was unable to make service on the relator. The matter was continued until February 21, 2003. On January 27, 2003, the trial court granted the respondents’ motion and order to appoint private process server after the civil sheriffs attempts to serve the relator were in vain. The relator does not contest these facts.

11sThe respondents note that on February 21, 2003, the matter was taken off the docket because the private process server was unable to obtain service “[d]espite numerous efforts.” After various futile attempts at service, the matter was continued until April 11, 2003, and then to June 27, 2003. After a hearing on that date, the trial court denied the relator’s exceptions and motion for summary judgment. The relator does not dispute these facts.

The respondents assert that initially the first continuance notice of the next date was properly served. The respondents’ attorney provided an affidavit of service filed on June 27, 2003, as well as a copy of the registered receipt for the total of $12.38, which were filed in the trial court. The attorney signed a notarized affidavit, stating that he sent Jonathan Ainsworth a copy of motions and orders to reset the hearing date by registered mail, return receipt requested, as well as by regular mail; however, the mailings were not claimed by the relator. A litigant may not defeat service by merely refusing to accept a letter containing a citation. Amin v. Bakhaty, 2000-2710 (La.App. 1 Cir. 5/11/01), 812 So.2d 12; Ahlers v. Ahlers, 384 So.2d 474 (La.App. 2 Cir.1980); McFarland v. Dippel, 99-0584 (La.App. 1 Cir. 3/31/00), 756 So.2d 618, 622.

In the present case, the hearing was continued several times in an attempt for the relator to receive notice. It was evident that the relator avoided being served and avoided receiving notice of the hearing date. It is in his best interest to delay the proceedings so that he can live on the property rent-free.

As previously discussed, a co-owner cannot defeat a partition of the property when one of the co-owners requests a partition. We find that the failure to serve notice of the continuances did not in any way result in an inequitable situation. We

cannot see how service of these notice of continuances could have prevented a | ^judgment for partition of the property from being rendered and, accordingly, the judgment will not be annulled for ill practices under La. C.C.P. art. 2004.

Jonathan Ainsworth also asserts that he was not mailed a copy of the judgments until September 10, 2003. Although the relator was not mailed a copy of the judgments when rendered, the relator states that the trial court sent him copies of the judgments on September 10, 2003. The respondents do not contend that the period for the relator’s timely appeal has passed, and the relator was not prejudiced. The relator was not denied his right to due process.

Considering that the relator avoided receiving notice, we cannot say that the relator has a justifiable claim of improper service in the present case where he cannot prevent the partition of the property based on the claims asserted in this writ application.

Appointment of Representatives on behalf of Harold Ainsioorth Where Co-owners have Conflicting Interests

Jonathan Ainsworth avers that the trial court erred in not finding that his brother Harold Ainsworth is mentally incompetent so that, under La. C.C.P. art. 4643, a curator and/or attorney should have been appointed to represent Harold at the June 27, 2003 hearing.

“The petitioner in an interdiction proceeding shall prove by clear and convincing evidence of the facts justifying interdiction.” La. C.C.P. art. 4548. |1S In Wales v. Maroma, 589 So.2d 51 (La.App. 1 Cir.1991), the First Circuit held that the curator of the interdict failed to present sufficient evidence that the interdict was mentally incompetent at the time of the separation and divorce to warrant the annulment of judgments. Although the interdict suffered from mental illness, where there was no evidence showing the exact dates of her illness or proximity of her hospitalization to the time of the proceedings in question, the evidence was inadequate.

In the present case, the relator maintains that his brother Richard Ainsworth tried to have Harold committed to a mental institution, which fact was admitted by Harold and Richard in the requests for admission.

On August 5, 2002, Jonathan Ainsworth signed a declaration (without being notarized) that was filed in civil district court. In his declaration, Jonathan Ainsworth included his account of a background of the family history and the problems that occurred. With reference to his brother Harold, the relator stated in part:

My brother, Richard, believes that our brother, Harold, is non compis mentis. Richard once attempted to have[]Harold Commited [sic] to a mental institution! I intervened and prevented it. Harold was a recluse, confined to bed and let his toenails grow.... Harold, Jr. is a diabetic and I have personally taken him to the Emergency Room of Baptist Hospital on several occasions. Last year he was admitted twice, for several months duration, due to diabetes[ ]and congestive heart failure....

The relator did not show that Harold was committed to an institution or has been interdicted. In fact, Jonathan declared that he intervened and prevented Harold from being committed.

|1fiThe relator failed to provide sufficient evidence to show that Harold was mentally incompetent at the time that the judgments were rendered. The trial court did not err in not appointing a curator for Harold.

Jonathan Ainsworth also contends that the same attorney should not represent Richard and Harold because they have conflicting interests. Jonathan complains that Richard is influencing Harold’s decisions.

The three brothers equally own the property. La. C.C. art. 797. Jonathan’s concern for Harold’s interest is suspect where Jonathan does not dispute that he is living on the property rent-free. Co-owners cannot be compelled to pay rent. La. C.C. art. 802; Pelafigue v. Sudduth, 95-1305 (La.App. 3 Cir. 12/7/95), 666 So.2d 1135, appeal after remand, 2001-807 (La.App. 3 Cir. 5/15/02), 820 So.2d 583, writ denied, 2002-2157 (La.11/8/02), 828 So.2d 1124. A co-owner need not pay rent to another co-owner for his exclusive use of the co-owned property. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, on remand 99-0046 (La.App. 1 Cir. 5/12/00), 767 So.2d 715, writ denied, 2000-2370 (La.11/3/00), 773 So.2d 146. It is not in Harold’s best interest for Jonathan to continue to live on the property rent-free. It is in both Harold and Richard’s interest to have the property partitioned.

The relator did not show that Harold and Richard have conflicting interests. The trial court did not err in failing to appoint an independent attorney to represent Harold at the hearing.

117Minimum Bid

Jonathan Ainsworth maintains that the minimum bid of $270,000 set for the sheriffs sale of the property is too low as the property was appraised for $400,000.

The relator did not cite any authority in support of his contention that the minimum bid is too low, and this Court uncovered no such authority. In fact, there is no requirement that there be a minimum bid at all in a partition by licitation. La. C.C. art. 811.

Only an extrajudicial partition may be rescinded on grounds of lesion under the partition article, La. C.C. art. 814, and under the lesion article, La. C.C. art. 2589. Pursuant to the third sentence of La. C.C. art. 2589, lesion cannot be alleged in a sale by order of the court. La. C.C. art. 814 only refers to an extrajudicial partition that can be rescinded if the co-owner gets less than% of the fair market value of his interest.

In the present case, the sheriffs sale is by order of the trial court and is not an extrajudicial partition. The articles on lesion and recision do not apply.

The relator did not support his claim that the minimum bid is too low.

|1SProperty Taxes

Jonathan Ainsworth argues that the trial court erred in reimbursing Richard Ainsworth for $5,113.36 paid for the 2001, 2002 and 2003 property taxes on the property in question. The relator maintains that Richard Ainsworth was not entitled to $5,113.36 that he paid in property taxes because he owned one-third of the property so that two-thirds of that amount is all that Richard Ainsworth is entitled.

Necessary steps for the preservation of the property held in indivisión may be taken by any of the co-owners acting alone. La. C.C. art. 800. La. C.C. art. 801 provides that: “The use and management of the thing held in indivisión is determined by agreement of all the co-owners.” Without an agreement of the co-owners when a partition is not available, upon petition of an owner, a court may determine the use and management of the property held in indivisión under La. C.C. art. 803. The trial court shall order reimbursement due to a co-owner out of the proceeds of the sale under La. C.C.P. art. 4626.

In Sharp v. Zeller, 38 So. 449, 114 La. 549 (1905), the Louisiana Supreme Court stated that a joint owner in possession is accountable for rents, and is entitled to recover money expended for taxes, insurance, and necessary repairs, inuring to the benefit of his co-owners. The Supreme Court stated:

Defendant’s first contention is that the judgment of January 2, 1901, decreed that the whole sum of $3,900 |19be paid by plaintiffs, and not by the community. Taking the decree as a whole, it is evident that it was adjudged that said amount represented the separate claim of Henry Zeller against the community. Hence the expression judgment ‘against plaintiff should be construed with reference to the context, and as meaning that the decree was against plaintiffs, as owners in indivisión of the community property, and not against them individually. In Sharp v. Zeller, 110 La. [61,] 66, 34 South. [129,] 131 [(La.1902)], this decree was paraphrased as follows: ‘That Henry Zeller recover of the community the sum of $3,900, amount of his separate claim against it, with legal interest from the date of dissolution.’

Id., 38 So. at 450,114 La. at 551.

In Sharp v. Zeller, the debt was against the community or the property rather than the co-owners individually. Similarly, in the present case, the debt was owed to the succession or the property rather than the co-owners individually. The entire amount of taxes should be deducted from the proceeds of the property sale so that ultimately each co-owner will share the payment of the taxes equally.

The trial court did not err in allocating reimbursement of the entire amount of the property taxes to Richard from the proceeds of the sale as it was a debt of the bequeathed property.

Recusal

Jonathan Ainsworth argues that the trial judge should be recused pursuant to La. C.C.P. art. 151 B(5), because he can be influenced by those who contribute to his campaign.

Jonathan maintains that he did not contribute to the trial judge’s campaign, and Richard and Howard’s attorney may have contributed. The relator provided a copy of judicial misconduct complaint attached to his writ application. The relator 12pstated: “In my opinion, [the trial judge] showed favoritism to a politically well-connected law[]firm and denied me due process notice of a hearing thereby. Several judgments were illegally taken against me, even though I was not given any notice whatsoever of the hearing dates.... ”

The relator’s allegation does not show that Richard and Howard’s attorney in fact contributed to the trial judge’s campaign. This Court reviewed the relator’s claims, and has affirmed the rulings of the trial court. The relator provided no showing of the trial court’s impropriety in his judgments. The relator provided no supported reason to believe that the trial judge was prejudiced one way or the other in this matter or that the trial judge was biased, prejudiced, or interested in the respondents’ cause or attorney to such an extent that the trial judge would be unable to conduct fair and impartial hearings. Because, as stated previously, the property must be partitioned when requested by a co-owner, the trial court has no discretion and is mandated by law to partition and order the sheriffs sale of the co-owners’ property.

The relator’s claims for the recusal of the trial judge are not justified.

Accordingly, the relator’s request to proceed informa pauperis is denied. The relator’s request for a stay order is denied. The judgments of the trial court are affirmed.

WRIT GRANTED; RELIEF DENIED; REQUEST TO PROCEED IN FORMA PAUPERIS DENIED; REQUEST FOR STAY ORDER DENIED; JUDGMENTS AFFIRMED

      . La. C.C. art. 809 states:
      Art. 809. Judicial and extrajudicial partition
      The mode of partition may be determined by agreement of all the co-owners. In the absence of such an agreement, a co-owner may demand judicial partition.
      La. C.C.P. art. 4601 provides:
      Art. 4602. Judicial partition
      Partition of property may be made either nonjudicially or judicially.
      La. C.C.P. art. 4602 states:
      Art. 6402. Judicial partition
      Partition must be judicial when:
      (1) A parly is an unrepresented absentee, minor, or mental incompetent; or
      (2) All the interested parties cannot agree upon a nonjudicial partition.

      . La. C.C. art. 807 provides:
      Art. 807. Right to partition; exclusion by agreement
      No one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act.
      Any co-owner has a right to demand parition of a thing held in indivisión. Partition may be excluded by agreement for up to fifteen years, or for such other period as provided in R.S. 9:1702 or other specific law.

      . La. C.C.P. art. 1312 states:
      Art. 1312. Service of pleadings subsequent to petition; exceptions
      Except as otherwise provided in the second paragraph hereof, every pleading subsequent to the original petition shall be served on the adverse party as provided by Article 1313 or 1314, which ever is applicable.
      No service on the adverse party need be made of a motion or petition for an appeal, of a petition for the examination of a judgment debtor, of a petition for the issuance of garnishment interrogatories in the execution of a final judgment, or of any pleading not required by law to be in writing.
      La. C.C.P. art. 1313 provides:
      Art. 1313. Service by mail, delivery, or facsimile
      A. Except as otherwise provided by law, every pleading subsequent to the original petition, and every pleading which under an express provision of law may be served as provided in this Article, may be served either by the sheriff or by:
      (1) Mailing a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party at his last known address, this service being complete upon mailing.
      (2) Delivering a copy thereof to the counsel of record, or if there is no counsel of record, to the adverse party.
      (3) Delivering a copy thereof to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
      (4) Facsimile transmission of a copy thereof to the counsel of record at his number designated for facsimile transmission, or if there is no counsel of record, to the adverse party at his number designated for facsimile transmission, this service being complete upon receipt of the transmission.
      B. When service is made by mail, delivery, or facsimile transmission, the party or counsel making the service shall file in the record a certificate of the manner in which service was made.
      C. Notwithstanding Paragraph A of this Article, if a pleading or order sets a court date, then service shall be made by registered or certified mail or as provided in Article 1314. [Emphasis added.]
      The Editor's Notes following the above article state in pertinent part:
      The 1999 amendment allows all pleadings subsequent to the petition to be served by mail or fax, “except as otherwise provided by law.” Some exceptions to the rule are: the reconvention, C.C.P. art. 1063, cross-claim, C.C.P. art. 1072; most interventions, C.C.P. art. 1093; third-party demand, C.C.P. art. 1114; presumably subpoenas, C.C.P. art. 1355 (and C.C.P. arts. 1231-36); rules to show cause, see C.C.P. art. 2594 and C.C.P. art. 1313(C); habeas corpus, C.C.P. art. 3824; mandamus and quo war-ranto, see C.C.P. arts. 2594 and 1313(C). While the latter three are summary proceedings that are initiated by petition, they might be part of a broader suit and thus be "subsequent” to the original petition.
      La. C.C.P. art. 1314 states:
      Art. 1314. Same; service by sheriff
      A. pleading which is required to be served, but which may not be served under Article 1313, shall be served by the sheriff by either of the following:
      (1) Service on the adverse party in any manner permitted under Articles 1231 through 1266.
      (2)(a) Personal service on the counsel of record of the adverse party or delivery of a copy of the pleading to the clerk of court, if there is no counsel of record and the address of the adverse party is not known.
      (b) Except as otherwise provided in Article 2293, service may not be made on the counsel of record after a final judgment terminating or disposing of all issues litigated has been rendered, the delays for appeal have lapsed, and no timely appeal has been taken.
      B. Personal service on a partner or office associate of a counsel of record, in the office of such counsel of record shall constitute valid service under Paragraph A of this Article.

      . La. C.C.P. art. 2591 provides:
      Art. 2591. Proceedings conducted with rapidity
      Summary proceedings are those which are conducted with rapidity, within the delays allowed by the court, and without citation and the observance of all the formalities required in ordinary proceedings.
      La. C.C. art. 2592 states in pertinent part:
      Art. 2592. Use of summary proceedings
      Summary proceedings may be used for trial or disposition of the following matters only:
      (3)An issue which may be raised properly by an exception, contradictoiy motion, or rule to show cause;

      (5) The homologation of a judicial partition, of a tableau of distribution or account filed by a legal representative, or of a report submitted by an auditor, accountant, or other expert appointed by the court; and an opposition to any of the forgoing, to the appointment of a legal representative, or to a petition for authority filed by a legal representative. [Emphasis added.]
      La. C.C.P. art. 2593 provides:
      Art. 2593. Pleadings
      A summary proceeding may be commenced by the filing of a contradictoiy motion or by a rule to show cause, except as otherwise provided by law.
      Exceptions to a contradictoiy motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed pri- or to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.
      La. C.C.P. art. 2594 states:
      Art. 2594. Service of process
      Citation and service thereof are not necessary in a summary proceeding. A copy of the contradictoiy motion, rule to show cause, or other pleading filed by the plaintiff in the proceeding, and of any order of court assigning the date and hour of the trial thereof, shall be served upon the defendant.
      La. C.C.P. art. 1201 provides:

        Art. 1201. Citation; waiver; delay for service
      A. Citation and service thereof are essential in all civil actions except summary and executory proceedings and divorce actions under Civil Code Article 102. Without them all proceedings are absolutely null. [Emphasis added.]
      B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
      C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.

      . La. C.C.P. art. 2002 A(2) provides:
      Art.2002. Annulment for vices of form; time for action
      A. A final judgment shall be annulled if it is rendered:

      (2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

      . La. C.C.P. art. 2004 A states:
      Art.2004. Annulment for vices of substance; preemption of action
      A. A final judgment obtained by fraud or ill practices may be annulled.

      . La. C.C.P. art. 4643 states:
      Art. 4643. Appointment of attorney for incompetent when interests conflict
      In any partition of property, whether in kind or by licitation, and whether judicial or conventional, of which an incompetent is co-owner, and the interests of the incompetent conflict with those of his legal representative, undertutor, or undercurator, as the case my be, the court shall appoint an attorney at law to represent and act for the incompetent in the partition. If two or more incompetent co-owners whose interests conflict have the same legal representative, undertutor, or undercurator, the court shall appoint an attorney at law to represent and act for each of these incompetents in the partition.
      For the purposes of the partition, the attorney at law so appointed shall act in lieu of, and has all of the power and authority of, the legal representative, undertutor, or undercurator referred to in the first paragraph hereof. [Emphasis added.]

      . La. C.C. art. 797 provides:
      Art. 797. Ownership in indivisión; definition
      Ownership of the same thing by two or more persons is ownership in indivisión. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.

      . La. C.C. Art. 802 states:
      Art. 802. Right to use the thing
      Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from making such use of it. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner.

      . La. C.C. art. 811 provides:
      Art. 811. Partition by licitation or by private sale
      When the thing held in indivisión is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to co-owners in portion to their shares.

      . La. C.C. art. 814 states:
      Art. 814. Rescission of partition for lesion
      An extrajudicial partition may be rescinded on account of lesion if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received. [Emphasis added.]

      . La. C.C. art. 2589 provides:
      Art. 2589. Rescission for lesion beyond moiety
      The sale of an immovable may be rescinded for lesion when the price is less than one half of the fair market value of the immovable. Lesion can be claimed only by the seller and only in sales of corporeal immov-ables. It cannot be alleged in a sale made by order o the court. [Emphasis added.]
      The seller may invoke lesion even if he has renounced the right to claim it.

      . La. C.C. art. 800 states:
      Art. 800. Preservation of the thing
      A co-owner may without the concurrence of any other co-owner take necessary steps for the preservation of the thing held in indivisión.

      . La. C.C.P. art. 4626 provides:
      Art. 4626. Judgment ordering reimbursement or payment of amounts due co-owner out of proceeds of such sale
      A judgment ordering the public sale of property to effect a partition under the provisions of this Chapter shall order, out of the proceeds of such sale:
      (1) The reimbursement to a co-owner of the amount proven to be due him for the payment of taxes on the property, and the expenses of preservation thereof; and
      (2) The payment to a co-owner of the amount proven to be due him by another co-owner who has received and retained the fruits and revenues of the property. [Emphasis added.]

      . La. C.C.P. art. 151 B(5) states in pertinent part:
      B. A judge of any court, trial or appellate, may be recused when he: ... (5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties' attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.

      . This opinion was approved by Chief Judge Byrnes prior to his death.


source: Caselaw Access Project

author: JjLEON A. CANNIZZARO, JR, Judge.

license: Public Domain

text:
    Leo MISEWICZ v. Dorene G. GAMSO, American Deposit Insurance Company and Government Employees Insurance Company.
    No. 2003-CA-1052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2003.

      Jeffrey Perigoni, Law Office of Jeffrey Perigoni, Chalmette, LA, Counsel for Plaintiff/Appellee, Leo Misewicz.
    Wayne R. Maldonado, Ginger K. DeForest, Ungarino & Eckert L.L.C., Metairie, LA, Counsel for Defendant/Appellant, American Deposit Insurance, Co.
    Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.
   JjLEON A. CANNIZZARO, JR, Judge.

This case involves an appeal by American Deposit Insurance Company (“American”) from a judgment awarding the plaintiff, Leo Misewicz, damages in connection with an automobile accident. American is appealing the amount of damages awarded for lost wages and the assignment of all of the fault in the accident to its insured, Doreen Gamso.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Mr. Misewicz was traveling eastbound in the left lane of Louisiana Highway 39, which is also known as East Judge Perez Drive (“Judge Perez”), in his Honda Accord (the “Accord”). He was approaching the intersection of Judge Perez and Tournefort Street when he saw a car, which was towing a trailer, cross the westbound lanes of traffic of Judge Perez and enter the median. When he saw that the trailer was blocking the innermost westbound lane of Judge Perez, Mr. Misewicz slowed down, because he was not sure whether the driver of the car in the median would wait for a break in the traffic to turn left or would pull out in front of him and make a left turn. Apparently, when the driver of the car in the median saw Mr. Misewicz slow down, the driver accelerated and began to complete the left turn in front of Mr. Misewicz’s Accord. Mr. Misewicz then ^stopped the Accord in the eastbound left lane of Judge Perez to avoid hitting the car as it completed the left turn in front of his Accord. When Mr. Misew-icz stopped his Accord, a Ford Expedition (the “Expedition”) driven by Ms. Gamso hit the Accord from the rear, causing damage to both vehicles.

The car towing the trailer continued to proceed down Judge Perez, and the driver was never identified. The first police officer to arrive at the scene of the accident was either a plain clothes officer or an off-duty officer, who was identified as a police officer by the badge that was hanging from his waist and the blue lights in his unmarked ear. The officer told Mr. Mi-sewicz and Ms. Gamso to move their vehicles out of the traffic lanes of Judge Perez, and the officer called a traffic accident investigator to the scene.

St. Bernard Parish Deputy Dick A. Beebe investigated the accident. The Accord and the Expedition had been moved out of the roadway, but Deputy Beebe did not note that there were any skid marks where the accident occurred. After speaking with both Mr. Misewicz and Ms. Gam-so, Deputy Beebe issued a ticket to Ms. Gamso for following another vehicle too closely in violation of La. R.S. 32:81(A). She pled guilty to the offense.

Mr. Misewicz told Deputy Bebee that he was not injured. Two days after the accident, however, Mr. Misewicz awoke with a very painful neck, and he went to his family doctor, Dr. Andres G. Pedroza. Mr. Misewicz complained of pain and stiffness in his neck and headaches that occurred when he bent over or raised his arms above his head. Mr. Misewicz told Dr. Pedroza that he had been involved in a rear end collision in which he was wearing a seat belt and that his head had snapped forward when his car was hit from the rear. Dr. Pedroza examined Mr. DMisewicz and determined that his headaches were secondary to acute muscle strain in his neck and back resulting from the automobile accident.

Dr. Pedroza referred Mr. Misewicz to Dr. Gary Carroll for x-rays. Dr. Carroll’s report showed that Mr. Misewicz had physical evidence of acute muscular injury. After Dr. Pedroza received the radiologist’s report, he prescribed physical therapy three times a week in addition to rest, hot compresses, muscle relaxants, and analgesics that he had already prescribed for Mr. Misewicz.

Because The Health Care Center of St. Bernard (the “Center”) was more conveniently located than Dr. Pedroza’s office, Mr. Misewicz stopped seeing Dr. Pedroza and began treatment with Dr. Janis A. Walder at the Center. Dr. Walder diagnosed Mr. Misewicz’s condition as acute muscle strain, and she prescribed physical therapy as well as medication. Mr. Mi-sewicz saw Dr. Walder on several occasions during his treatment. He then began to see Dr. Michael T. Howard, who also worked at the Center.

Dr. Howard thought that one of Mr. Misewicz’s cervical disks might have been involved in his injuries, and he prescribed additional medication and continued physical therapy. Dr. Howard continued to treat Mr. Misewicz, and he ordered that an MRI be performed on Mr. Misewicz. The MRI showed some abnormalities including a minimal bulge of one of the disks in the spinal column in his neck.

Dr. Howard referred Mr. Misewicz to Dr. Salvador E. Murra for a neurological consultation. Dr. Murra performed a nerve conduction study that revealed a chronic disk herniation on the left side of one of the bones in the spinal column in Mr. Misewicz’s neck. Dr. Murra saw Mr. Misewicz for several months | ¿during which he added additional drugs and a soft cervical collar to Mr. Misewicz’s treatment regimen.

When Mr. Misewicz returned to Dr. Howard, the doctor noted that Mr. Misew-icz continued to have a reduction in motor strength. Dr. Howard also advised Mr. Misewicz that he could not help him improve any further, and he discharged Mr. Misewicz with instructions for him to return to Dr. Murra.

When Mr. Misewicz returned to Dr. Murra, he complained of tingling sensations in his neck and in the area above his left collar bone that radiated into his left shoulder. He also continued to suffer from headaches. Dr. Murra instructed Mr. Misewicz to continue taking the medications he had prescribed for him and to continue wearing the soft cervical collar. Approximately six months later, Mr. Mi-sewicz again saw Dr. Murra, who advised Mr. Misewicz that he could return to work and that his condition would continue to improve.

Approximately three months after he was authorized to return to work, Mr. Misewicz found employment. Mr. Misew-icz testified that he had been instructed not to return to work for an indeterminate amount of time by his doctors. The Center’s records do not reflect that he was ever authorized to return to work, but he was permitted to return to school almost six months after the accident. A year and a half after the accident, Mr. Misewicz was allowed to return to work by Dr. Murra.

Prior to the accident Mr. Misewicz had been working full time as an air conditioning technician. He had just returned to school the week before the accident. He testified that he had arranged his class schedule so that he would not have any classes on Monday, Wednesday, and Friday so that he could continue to work three days a week.

| ¡¡Mr. Misewicz filed suit against Ms. Gamso and her insurer, American, and his uninsured motorist carrier, Government Employees Insurance Company (“GEI-CO”). GEICO was dismissed from the case prior to the trial. After a bench trial before the judge, the court rendered judgment against American and in favor of Mr. Misewicz in the amount of $49,941.63, and Ms. Gamso was dismissed from the case.

In giving reasons for judgment, the trial court stated that Ms. Gamso was at fault for striking the Accord in the rear with her Expedition. The court also found that Mr. Misewicz’s Accord slowed and then stopped when the car, which was towing a trailer, pulled out from the median on Judge Perez in front of the Accord. The court further found that the only evidence offered by American and Ms. Gamso to show fault on the part of Mr. Misewicz was Ms. Gamso’s testimony that Mr. Misewicz stopped abruptly to avoid a collision with the car that was emerging from the median. Ms. Gamso, however, testified that she, too, saw the car emerging from the median, and the court determined that what she saw should have alerted her to an impending stop by Mr. Misewicz. The trial court found that she breached her duty to maintain control of her Expedition so that she could avoid hitting the Accord.

LAW AND DISCUSSION

Lost Wages

American complains on appeal that the trial court erred in awarding lost wages in the amount of $20,592 to Mr. Misewicz. American alleges that Mr. Misewicz failed to prove that he was entitled to wages in that amount.

In Boyette v. United Services Automobile Association, 2000-1918 (La.4/3/01), 783 So.2d 1276, the Louisiana Supreme Court discussed the law | fiapplicable to determining the amount of recovery for lost wages accruing prior to trial. The Supreme Court stated:

To recover for actual wage loss, a plaintiff must prove that he would have been earning wages but for the accident in question. In other words, it is the plaintiffs burden to prove past lost earnings and the length of time missed from work due to the accident.

2000-1918, p. 3, 783 So.2d at 1279 (citations omitted).

This Court has also considered the method for determining the amount of lost wages that accrue before trial. This Court has stated that “[i]n order to be entitled to an award for lost wages, a plaintiff must prove positively that he would have been earning the wages but for the accident in question.” Falgout v. Louis-Jeune, 2000-2453, p. 10-11 (La.App. 4 Cir. 10/3/01), 799 So.2d 610, 617. In Reichert v. Bertucci, 96-1213 (La.App. 4 Cir. 12/4/96), 684 So.2d 1041, this Court stated that “[p]ast lost wages are susceptible of mathematical calculation, and the award is not subject to the much discretion rule.” 96-1213, p. 5, 684 So.2d at 1044-45. See also Stark v. National Tea Co., 94-2633 (La.App. 4 Cir. 5/16/95), 655 So.2d 769.

On August 26, 2000, Mr. Misewicz sustained injuries when Ms. Gamso’s Expedition hit the Accord he was driving. At trial Mr. Misewicz presented evidence in the form of three paycheck stubs for pay periods ending August 1, 2000, August 4, 2000, and August 12, 2000, showing that he worked 36.5 hours, 41.5 hours, and 45 hours, respectively, for each of three weeks. Mr. Misewicz also introduced into evidence a copy of his Internal Revenue Service Form W-2 for year 2000, which showed that he earned $10,851.66 in gross wages that year.

| ^American introduced into evidence an additional paycheck stub, which was for the period ending August 25, 2000, showing that Mr. Misewicz worked only six hours the first week that Mr. Misewicz attended classes at the University of New Orleans. Even though he had arranged his class schedule so that he would be able to work three days a week, the evidence shows that he did not do so the first week he attended school.

Mr. Misewicz contends that the number of hours he worked the week ending the day before the accident was an aberration, because that was his first week of school when he had to spend more time than usual attending to school matters. He further contends that he had scheduled his classes so that he could work 24 hours a week while he was attending school. American, however, argues that six hours per week is the basis upon which Mr. Misewiez’s lost wages should be calculated.

In the instant case, we find that Mr. Misewicz sustained his burden of proof with respect to his lost wages and that the trial court did not err in its method of calculating the amount of damages awarded to Mr. Misewicz for lost earnings. The evidence produced at trial shows that he was working full time for $11.00 an hour prior to the accident except for the first week of school when he had nonrecurring school matters that reduced the time available for him to work that week. Mr. Misewicz had arranged his class schedule so that he would have no classes three full days a week, and he testified that he intended to work full time those days. There was also evidence to support Mr. Misewicz’s claim that he was unable to work due to injuries from the accident from September 2000, until March 2002, when his medical treatment was completed.

As required by the jurisprudence discussed above, the trial court calculated Mr. Misewicz’s lost wages mathematically, based on his earnings of $11.00 per |shour prior to the accident. The trial court also reduced the hours he would have been able to work had he not had the accident from his usual 40 hours to 24 hours, which is the amount of time that Mr. Misewicz planned to work while he was in school. The trial court then determined that there were 78 work weeks during the 18 months Mr. Misewicz was restricted from working by his physicians. Finally, the trial court awarded damages for lost wages in the amount of $20,592, which were calculated by multiplying $11 per hour by 24 hours a week by 78 weeks. We find that this assessment of damages was made by the trial court’s mathematical calculations as required by the legal standards for the calculation of lost wages prior to trial.

Allocation of Fault

American argues that the trial court erred when it did not apportion any of the fault in the accident to the driver of the car that turned left from the median in front of Mr. Misewicz’s Accord. American contends that under La. Civil Code art. 2323(A) Louisiana has a comparative fault system that requires some allocation of fault to be made to all parties at fault in an accident.

La. Civil Code art. 2323(A) provides as follows:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty ... or that the other person’s identity is not known or reasonably ascertainable.

Each defendant in a lawsuit, who is at fault, is responsible for the fault allocated to that defendant.

Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La.1985), is the seminal case in Louisiana on allocation of fault. In Watson the [¡¡Louisiana Supreme Court set forth the following guidelines for determining the percentage of fault to be allocated among tortfeasors:

In assessing the nature of the conduct of the parties, various factors may influence the degree of fault assigned, including: (1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

469 So.2d at 974. See also Joseph v. Broussard Rice Mill, Inc., 2000-0628 (La.10/30/00), 772 So.2d 94.

In Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, the Louisiana Supreme Court stated that “the trier of fact is owed some deference in allocating fault, for the finding of percentages of fault pursuant to the comparative fault article, La. Civ.Code art. 2323, is also a factual determination.” 95-1119, p. 7, 666 So.2d at 610 (footnote omitted). See also Molina v. City of New Orleans, 2001-1411 (La.App. 4 Cir. 10/2/02), 830 So.2d 994.

Applying the law applicable to the allocation of fault, we find that the trial court properly allocated all of the fault in the accident to Ms. Gamso. Ms. Gamso does not contest that she was at fault. American just wants some of the fault allocated to the unknown driver who turned left in front of Mr. Misewicz’s Accord, causing Mr. Misewicz to stop the Accord abruptly in front of her Expedition.

In his Reasons for Judgment the trial court judge stated that the only evidence offered by Ms. Gamso to rebut the presumption of lack of fault on behalf of Mr. Misewicz was evidence that Mr. Misewicz stopped abruptly to avoid an |inaccident with the vehicle that emerged from a median on Judge Perez and turned left in front of the Accord. The trial court found that both Ms. Gamso and Mr. Misewicz saw the vehicle emerge from the median. Therefore, Ms. Gamso, as well as Mr. Mi-sewicz, should have been alerted to the fact that Mr. Misewicz would have to stop the Accord to avoid hitting the emerging vehicle. In turn, Ms. Gamso should have been alerted to the fact that she would have to stop the Expedition to avoid hitting the Accord. The trial court found that Ms. Gamso did not maintain the Expedition at a safe enough distance behind the Accord so that she could avoid hitting the Accord when Mr. Misewicz was forced to stop it in front of the Expedition. The trial court judge allocated all of the fault in this accident to Ms. Gamso on the basis of her failure to maintain a proper distance between her Expedition and the Accord. If she had not failed to do this, the accident could have been avoided. We defer to the trial court’s findings of fact and his judgment on this matter.

CONCLUSION

Based on the foregoing, we find no error in the trial court’s judgment. The judgment is affirmed.

AFFIRMED.

      . The paycheck stubs cover three weeks of work, although they are not dated three weeks apart. Mr. Misewicz testified that his employer did not always pay him each week to explain why the dates on the paycheck stubs were not always a week apart.

      . This opinion was approved by Chief Judge Byrnes prior to his death.


author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    Kathleen Ducote and Norman DUCOTE v. TOURO INFIRMARY.
    No. 2003-CA-0755.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 2003.

      John L. Hammons, Cornell R. Flournoy, Nelson, Hammons & Self, Shreveport, LA, Counsel for Plaintiffs/Appellants, Kathleen Ducote and Norman Ducote.

      C. William Bradley, Jr., Nicole Duarte, Michael S. Sepcich, Lemle & Kelleher, L.L.P., New Orleans, LA, Counsel for Defendant/Appellee, Touro Infirmary.
    Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.
   J^LEON A. CANNIZZARO, JR., Judge.

The claims of Kathleen Ducote, and her husband, Norman Ducote (the “Ducotes”) against the defendant, Touro Infirmary (“Touro”) were dismissed by the trial court on the grounds of prescription. The Du-cotes are now appealing the dismissal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The Ducotes filed this action on December 29, 1998. In their petition, they alleged that Mrs. Ducote was diagnosed as being infected with the hepatitis C virus (“HCV”) on January 23, 1998. The Du-cotes also alleged that Mrs. Ducote was infected with HCV as a result of a transfusion of blood or blood products tainted with HCV that she received at Touro when she was hospitalized for childbirth in 1972.

In 1992, Mrs. Ducote donated blood at a blood drive being held at her place of employment. Shortly after she donated blood, she received a letter from the blood bank. Mrs. Ducote testified in her deposition that the letter stated that “I had [ 3the Hepatitis C; and I couldn’t donate blood anymore; and for me to seek my own physician.”

Mrs. Ducote further testified in her deposition that after receiving the letter from the blood bank, she visited her physician at the time, a Dr. Fontenelle, who is now deceased. She testified that Dr. Fonte-nelle “drew the blood; and he told me that I did have it; and there was nothing to worry about.” Dr. Fontenelle also told her that if she started “feeling bad”, she should “come in and have tests every now and then.” Although Dr. Fontenelle confirmed that Mrs. Ducote was infected with HCV, she did not realize at that time the seriousness of the infection.

Several years later Mrs. Ducote began to experience fatigue, lightheadedness, and blackouts. Because of these symptoms she went to see Dr. Nancy Michaelis, who ordered blood tests for Mrs. Ducote. When she received the results of those tests, Dr. Michaelis advised Mrs. Ducote that she was infected with HCV and referred her to a specialist, Dr. Louis Mau-mus. In January or February of 1998, Dr. Maumus ordered a liver biopsy to evaluate the status of Mrs. Ducote’s liver, and he prescribed a treatment regimen. Dr. Maumus also told Mrs. Ducote that she must have contracted the HCV infection from the transfusion of blood or blood products that she received from Touro in 1972. He reached this conclusion after questioning Mrs. Ducote about the various risk factors for acquiring HCV and finding that the only risk factor applicable to her was receiving a transfusion of blood or blood products when her son was born.

laThe treatment regimen prescribed by Dr. Maumus was very debilitating, and Mrs. Ducote was placed on short-term disability leave from her job. Also, because of her illness, Mrs. Ducote is no longer able to participate in many of the activities she previously enjoyed.

After Dr. Maumus explained to Mrs. Ducote the implications of being infected with HCV, she and her husband subsequently filed the instant suit. Suit was filed within one year from the time Mrs. Ducote realized what those implications were.

Touro filed an exception of prescription in this case claiming that the one year prescriptive period for any action against Touro had run. Touro contended that the prescriptive period ran from the time Mrs. Ducote received the letter from the blood bank advising her that she was infected with HCV. The Ducotes, however, contended that prescription began to run only after Mrs. Ducote’s HCV infection became symptomatic and her physicians explained to her in 1998 the meaning of her diagnosis.

STANDARD OF REVIEW

The instant case involves both questions of fact and questions of law. We must review the factual issues to determine whether the findings of fact by the trial court were clearly wrong or manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). With respect to the issues of law, however, this Court must determine whether the trial court applied the law appropriately. Glass v. Alton Ochsner Medical Foundation, 2002-0412 (La.App. 4 Cir. 11/6/02), 832 So.2d 403. In K.K.D. Smith v. Cutter Biological, 99-2068, p. 13 (La.App. 4 Cir. 9/6/00), 770 So.2d 392, 400-01, after determining that the issue of prescription raises questions of both fact and law, this Court stated that “[t]he trial judge’s factual findings concerning prescription should not be reversed by this Court in the absence of manifest error.” Therefore, this Court should determine whether, considering all of the evidence, the trial court judgment is clearly wrong or manifestly erroneous.

APPLICABLE LAW

Prescriptive Period

In Williams v. Jackson Parish Hospital, 2000-3170 (La.10/16/01), 798 So.2d 921, the Louisiana Supreme Court considered the prescriptive periods applicable to claims arising out of tainted blood transfusions. The Supreme Court stated that “all pre-1982 (pre-blood shield statutes) claims against hospitals in strict products liability arising out of defective blood transfusions ... are not traditional medical malpractice claims and thus are not governed by § 5628, but rather are governed by Article 3492.” 2000-3170, p. 15-16; 798 So.2d at 932 (footnote added).

Because the blood transfusion in the instant case is alleged to have occurred in 1972, La. Civil Code art. 3492 is applicable in the instant case. Article 3492 provides, in relevant part, that “[d]elictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.

| r,Contra Non Valentem

In certain situations the jurisprudential doctrine of contra non valentem agere nulla currit praescriptio, which means that prescription does not ran against a plaintiff who could not bring suit, operates to interrupt the running of prescription. Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (1970). See also Corsey v. State, Through Department of Corrections, 375 So.2d 1319 (La.1979).

In Renfroe v. State, Through Department of Transportation and Development, 2001-1646 (La.2/26/02), 809 So.2d 947, the Louisiana Supreme Court discussed this doctrine as follows:

This Court has recognized four factual situations in which the doctrine of cow- tra non valentem applies so as to prevent the running of liberative prescription:
(1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiffs action;
(2) where there was some condition coupled with
the contract or connected with the proceedings which prevented the creditor from suing or acting;
(3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; or
(4) where the cause of action is neither known nor reasonably knowable by the plaintiff even though plaintiffs ignorance is not induced by the defendant.

2001-1646, p. 9; 809 So.2d at 953. The fourth application of contra non valentem is relevant in the instant case.

The Louisiana Supreme Court has stated that “[t]he doctrine [of contra non va-lentem] itself is based on the theory that when the claimant is not aware of the facts giving rise to his or her cause of action against the particular defendant, the running of prescription is for that reason suspended until the tort victim discovers |fior should have discovered the facts upon which his or her cause of action is based.” In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La.1991). The Supreme has also recognized that “[i]t is often difficult to identify a precise point in time at which the claimant becomes aware of sufficient facts to begin the running of prescription.” Id. See also Cole v. Celotex Corp., 620 So.2d 1154 (La.1993).

In Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502, the Supreme Court stated that “[prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort.” 2001-2707, p. 11-12, 828 So.2d at 510. Prescription will run if the plaintiff has constructive knowledge of the facts that would entitle the plaintiff to bring suit, even if the plaintiff does not have actual knowledge of those facts. The Supreme Court has defined “constructive knowledge” to mean “whatever notice is enough to excite attention and put the injured party on guard and call for inquiry.” Additionally, the notice is tantamount to knowledge of everything to which the inquiry might lead. 2001-2707, p. 12; 828 So.2d at 510-11. Information or knowledge “as ought to reasonably put the alleged victim on inquiry is sufficient to start the running of prescription.” 2001-2707, p. 12; 828 So.2d at 511. Mere apprehension that something might be wrong, however, is insufficient to begin the running of prescription unless “the plaintiff knew or should have known through the exercise of reasonable diligence” that the injury suffered may have been caused by certain acts. Id.

In Renfroe v. State, Through Department of Transportation and Development, 2001-1646, p. 10 (La.2/26/02), 809 So.2d 947, 953, the Supreme Court stated that the plaintiff in an action will be deemed to know what could have |7been learned through reasonable diligence. Additionally, even though the plaintiff may be ignorant of, or misunderstand, the extent or duration of his or her injuries, the plaintiff may still have the requisite knowledge to commence prescription. See Fontenot v. ABC Insurance Co., 95-1707, p. 8 (La.6/7/96), 674 So.2d 960, 964, where the Supreme Court stated that “[i]gnorance or misunderstanding of the probable extent or duration of injuries materially differs from ignorance of actionable harm which delays commencement of prescription.

DISCUSSION

If Mrs. Ducote received tainted blood products from Touro during her hospitalization for her son’s birth, her injury was sustained in 1972. The issue before this Court is whether the trial court was clearly wrong or her decision was manifestly erroneous when she determined that Mrs. Ducote’s damages manifested themselves when Mrs. Ducote received the letter from the blood bank advising her that she was infected with HCV. It is clear that the doctrine of contra non valentón is applicable in the instant case, but we must determine whether prescription began to run from the date Mrs. Ducote received the letter from the blood bank or whether prescription began to run only after she developed symptoms of the disease.

The central inquiry in this case is when did Mrs. Ducote receive knowledge that she had received tainted blood products that had caused damage to her. There is no evidence that Mrs. Ducote knew of her infection with HCV for the approximately twenty years between the time she allegedly received blood or blood products from Touro and the time she received the letter from the blood bank advising her that she had been infected with HCV. Therefore, the doctrine of contra non valentón prevented prescription from running during that time period.

IsWhen Mrs. Ducote received a letter from a blood bank advising her that she was infected with HCV, that her blood could never be donated to another individual, and that she should see her physician, she visited her physician, Dr. Fontenelle, who, apparently, gave her a false sense of security. While ignorance of actionable harm delays prescription, ignorance or misunderstanding of the probable consequences of such harm does not. In the instant case, Mrs. Ducote had notice of the actionable harm, the HCV infection, when she received the letter from the blood bank, although she may have been misled regarding the consequences of the infection by Dr. Fontenelle’s statements to her.

Mrs. Ducote was deemed to know what she could have learned from reasonable diligence in investigating the HCV infection she had contracted. The letter from the blood bank was notice that was tantamount to knowledge of everything to which her inquiry might lead. Therefore, it was incumbent upon Mrs. Ducote to ask Dr. Fontenelle what HCV was, how she might have contracted it, and what were the health implications of being infected. Even if Dr. Fontenelle dismissed the letter from the blood bank as a routine form letter, the fact that the blood bank had advised Mrs. Ducote that she should never donate blood again should have alerted her to ask more probing questions than those that she testified that she did ask.

Blood banks actively seek donations from as many healthy donors as are willing to donate blood. Therefore, a letter from a blood bank stating that Mrs. Ducote should never donate blood again should have aroused sufficient suspicion in her mind to have caused her to probe much deeper into the meaning of this admonition than she did, even if it meant getting a second opinion to determine whether Dr. Fontenelle’s lack of concern regarding Mrs. Ducote’s condition was | ^justified. An average, reasonable person is aware of blood borne infections, in part due to the widespread educational campaigns regarding the prevention of AIDS, and a letter advising such a person that his or her blood should never be donated again is sufficient to command that person’s attention. We find that the average, reasonable person would have pursued the matter of an HCV infection much further than did Mrs. Ducote.

For the reasons discussed above, ■ we conclude that the trial court’s finding that Mrs. Ducote had notice sufficient to begin the running of prescription when she received the letter from the blood bank in 1992 was neither clearly wrong nor manifestly erroneous. Prescription began to run in this case in 1992, and the case had prescribed when it was filed in 1998.

CONCLUSION

Based on the foregoing discussion, we affirm the trial court’s judgment granting Touro’s exception of prescription. This case is dismissed with prejudice.

AFFIRMED.

      . La. R.S. 9:5628 provides, in relevant part, that medical malpractice claims shall be brought "within one year from the date the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.”


author: J^CLARENCE E. McMANUS, Judge.

text:
    Joseph P. VOIRON, Jr. v. KOSTMAYER CONSTRUCTION COMPANY, INC.
    No. 03-CA-607.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 28, 2003.

      Gerald P. Webre, Webre Law Firm, Me-tairie, LA, for plaintiff-appellant.
    Joseph B. Guilbeau, Keith E. Pittman, Juge, Napolitano, Guilbeau, Ruli & Frie-man, Metairie, LA, for defendant-appellee.
    Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

This is an appeal by the Estate of Joseph P. Voiron, Jr., plaintiff-appellant, from a judgment finding that the spud barge upon which he was injured was not a “vessel” resulting in the dismissal of a petition for damages. For the following reasons, we affirm that judgment.

FACTS AND PROCEDURAL HISTORY

Plaintiff/decedent, Joseph Voiron, was employed by Kostmayer Construction Company, Inc. since 1995 as a heavy equipment operator. He operated a crane that was mounted on a stationary work platform that was moored through the use of spuds and cables to the banks of the Mississippi River at the Kostmayer auxiliary dock in LaPlace, Louisiana. The work platform was used to assist a land-based crane in off-loading finished steel from the Bayou Steel facility to river barges. Kostmayer contends that at all times during Mr. Voiron’s employment, the work platform was either moored or “spudded” to the river banks by safety cables anchored to land.

The accidents giving rise to this litigation occurred on December 16, 1996 and May 23, 1998. In the- first accident, plaintiff was allegedly injured while greasing and fueling the crane. In order to accomplish that task, he had to jump pdown about three feet from the cat walk to a track to cut the fuel off. He contends that as he jumped from the cat walk to the track, his feet hit the edge of the track causing him to fall backwards onto a turnbuckle then fall to the deck of the barge. In the second accident, plaintiff alleges that he was injured when he slipped on a combination of early morning dew and 90 weight oil which had been leaking from a chain casing for quite some time.

Plaintiff brought suit in state court against Kostmayer under the Jones Act and General Maritime Law, seeking damages for negligence, wages and maintenance and cure. After a bench trial, the trial judge determined that the barge upon which plaintiff was injured did not meet the requirements for a vessel and dismissed his petition for damages. In reasons for judgment the trial judge noted that the evidence indicated the barge was stationary and was moored by spuds and cables and that in a four year period, the barge moved no more than four times. Moreover, on those occasions when the barge was moved to clean the river, a tug boat pushed the barge down river to the Bayou Steel site. Additionally, there was no evidence that the crane was operated while the barge was in transit. The trial judge relied on Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir.1995), stating that the structure was used primarily as a work platform; it was secured at the time of the accident; and its movement was incidental to its purpose. The trial judge noted that the barge was used to house a crane that loaded and unloaded steel and that plaintiffs own witness testified that he never worked on the barge when it was in transit. This appeal followed.

DISCUSSION

Plaintiff argues that the trial court committed manifest error by finding that the spud barge on which he was injured was not a vessel. Plaintiff maintains that the barge at issue is a vessel based on the following characteristics: navigation aids; raked bows; life boats and other life saving equipment; bilge pumps; crew 14quarters; registration as a vessel with the Coast Guard; and the structure’s frequency of movement. Kostmayer asserts the barge is not a vessel because it was more or less permanently moored; it was not used to transport personnel, equipment or materials; it was not capable of being moved on its own; it was moved on a few occasions; and its primary purpose was to load and unload finished steel.

In Milstead v. Diamond M Offshore, Inc., 95-2446 (La.7/2/96), 676 So.2d 89, the Louisiana Supreme Court directed state appellate courts to apply Louisiana’s manifest error standard of review in general maritime and Jones Act cases. Under the manifest error standard of review enunciated in Stobart v. State of Louisiana, Department of Transportation and Development, 617 So.2d 880 (La.1993), in order to reverse a factual determination, an appellate court must find (1) a reasonable factual basis does not exist in the record for the finding and (2) the record establishes that the finding is clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the factfin-der’s conclusion is right or wrong, but whether the conclusion is a reasonable one. Nevertheless, although this Court must give great deference to the trier of fact, we have a constitutional duty to review facts and reverse trial court judgments that are clearly wrong based on the evidence, or are clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. With those guiding principles in mind, we turn our attention to the issue presented for review.

In determining whether a structure is a vessel, we must look to the purpose for which the craft was built and the business in which it was engaged. Gumpert v. Pittman Construction Co., Inc., 98-2269, 99-0709 (La.App. 4 Cir. 6/9/99), 736 So.2d 1026, unit denied, 99-1995 (La.10/15/99), 748 So.2d 1151; 99-2012 (La.10/15/99), 748 So.2d 1152. In looking to the primary purpose of the structure, we Ismust determine whether the structure was used primarily for the transportation of cargo, equipment and persons across navigable waters, because transportation or commerce is the purpose of a traditional seafaring vessel. Van Atta v. Team Services, Inc., 96-0190 (La.App. 1 Cir. 11/08/96), 684 So.2d 472, writ denied, 97-0341 (La.4/18/97), 692 So.2d 447. If the primary purpose of the structure is transportation, the federal courts have traditionally accorded the structure vessel status, even if it lacked all attributes of conventional seafaring vessels, and even if it was not engaged in actual navigation at the time of the incident sued upon. Id.

In the present case, the trial judge found that the barge was used to house a crane that facilitated the loading and unloading of steel. The evidence did not show that the barge was used to transport this steel or anything else. Nor was it in transit at the time of the accident. In this case, the barge was firmly moored, seldom moved, was not used for navigation and was in use as a stationary work platform. Based on these findings, we are unable to say the trial judge’s finding that the barge did meet the test for “vessel” status are manifestly erroneous or are clearly wrong. Accordingly, we affirm that determination.

AFFIRMED.

      . The record reflects that Mr. Voiron died on August 19, 1999 after being struck by lightening, not as a result of any injuries that are the subject of this litigation.