author: I,TERRI F. LOVE, Judge.

text:
    Andrew ABADIE v. MARSIGLIA CONSTRUCTION COMPANY.
    No. 2002-CA-2108.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Writ Denied June 20, 2003.

      Joseph G. Albe, Metairie, LA, for Plain-tiffAppellee.
    Max K. Jones, Jr., John J. Rabalais, Janice B. Unland, Robert T. Lorio, Raba-lais, Unland & Lorio, Covington, LA, for Defendani/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.)
   I,TERRI F. LOVE, Judge.

Louisiana Commerce & Trade Association Self-Insurers’ Fund appeals the workers’ compensation court’s judgment finding it jointly and in solido hable with Hanover Insurance Company for the plaintiffs second work-related injury, because the plaintiff failed to provide evidence of the occurrence of a second accident. We reverse the workers’ compensation judge’s ruling for the following reasons.

FACTS AND PROCEDURAL HISTORY

On March 10, 2000, Andrew Abadie (“Abadie”) stepped into a hole while carrying a bucket of materials and injured his lower back in the course and scope of his employment as a laborer. At the time of the accident, he was employed by Marsig-lia Construction Company (“Marsiglia”), which was insured by Hanover Insurance Company (“Hanover”). Marsiglia’s company doctor, Dr. Robert A. Steiner, diagnosed Abadie with Degenerative Lumbar Disc Disease and Lumbar Spondylolisthe-sis. Despite receiving several epidural lumbar injections prescribed to alleviate pain, Abadie continued to experience pain in his lower back and legs. | s>Dr. Steiner released Abadie to work with restrictions, which permitted him to work light duty jobs. Subsequently, Abadie notified Dr. Steiner of the lack of availability of light duty jobs, and he stopped working. In June of 2000, Dr. Steiner released Abadie to work as a supervisor instead of as a laborer.

The following year, the week of March 19 through March 23, 2001, Abadie alleged he sustained a subsequent injury to his lower back. On March 29, 2001, Dr. Steiner noted, “Mr. Abadie has had a recurrence of back pain. He was doing more than his supervisory capacity last week while trying to meet a job deadline. At this time he is complaining of quite a bit of back pain and occasional radiation into the legs.” Dr. Steiner prescribed Celebrex and Darvoeet and advised Marsiglia that Abadie was not released for work for about two weeks.

In March of 2001, Marsiglia was insured by Louisiana Commerce & Trade Association Self-Insurers’ Fund (“LCTA”). Hanover refused to provide benefits for the subsequent injury. LCTA refused to pay benefits to Abadie, because he allegedly failed to report a new “accident”. Furthermore, LCTA argued that if there was a new “accident”, then the subsequent injury was an aggravation of the prior back injury, which Hanover was solely responsible for payment of workers’ compensation benefits. Both insurers maintained that the other was responsible for payment of benefits for Abadie’s subsequent injury. Hanover, however, continued to pay for medical treatment stemming from the initial injury.

A claim was filed against Hanover for the March 10, 2000, accident and separate claim was filed against LCTA for the subsequent injury, which alleged an aggravation of the March 10, 2000, back injury. The two actions were consolidated for trial. The workers’ compensation judge found Hanover liable for the payment of workers’ compensation benefits for both the initial and second | work-related accidents, and assessed applicable penalties and attorney’s fees against it for failure to pay indemnity and/or medical benefits for the second accident. Furthermore, the workers’ compensation judge found LCTA solidarity hable with Hanover for the plaintiffs workers’ compensation benefits related to the second work-related accident. In its written judgment, the workers’ compensation judge stated:

Claimant Andrew I. Abadie, Jr. suffered a second work-related accident and injury, within the course and scope of employment, in the week of March 19th through 23rd, 2001, when his employer was insured for workers’ compensation benefits by La. Commerce & Trade Association Self-Insurer’s Fund (LCTA) (OWC # 01-03712). Since the ‘second’ accident occurred March 19th through 23rd of 2001, LCTA is hable in worker’s compensation to claimant; LCTA and Hanover are jointly and in sohdo liable for workers’ compensation benefits for the ‘second’ accident March 19th through 23rd of 2001. Regardless of whether there was a ‘second’ accident on March 19th through 23rd of 2001 or the aggravation of the initial accident and/or injury on March 10, 2000, Hanover was at least partly liable for the second accident; “LCTA” did reasonably controvert whether or not a ‘second injury’ accident or re-injury occurred.

Therefore, LCTA was not ordered to pay attorney’s fees or penalties for its failure to pay benefits to Abadie.

DISCUSSION

LCTA argues that the workers’ compensation judge erred in finding that a second accident had occurred without any evidence to support the occurrence of a subsequent work-related accident or injury and holding LCTA solidarily liable for workers’ compensation benefits for Aba-die’s second work-related injury.

(New Accident dwring March 2001)

The appellant asserts Abadie failed to prove that an “accident” or specific event occurred in March of 2001. LCTA directs this court’s attention to Abadie’s ^testimony wherein he testified that his subsequent injury was not the result of a particular accident, but the result of overextending himself over the course of a three-week work period in March of 2001.

The standard of review for findings of fact by a hearing officer in a worker’s compensation case is “manifest error,” and it is the appellate court’s duty to determine not whether the fact finder’s conclusion was right or wrong, but whether it was reasonable. Where there are two permissible views of evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Seal v. Gaylord Container Corp., 97-0688 (La.12/2/97), 704 So.2d 1161, 1164.

La. R.S. 23:1021(1) defines an employment related accident as follows:

[A]n unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

It is a well-settled principle that the provisions of the worker’s compensation scheme should be liberally interpreted in favor of the worker. Bynum v. Capital City Press, Inc., 95-1395 (La.7/2/96), 676 So.2d 582, 586 (La.1996).

In order for the employee to recover, he must show that his employment somehow caused or contributed to the disability, but he need not establish the exact cause. Andrews v. Music Mountain Water Co., 25-634 (La.App. 2 Cir. 4/6/94), 637 So.2d 571, writ denied, 640 So.2d 1356 (La.1994). A claimant’s own testimony may be sufficient to prove causation by a preponderance of evidence, provided (1) no other evidence discredits or casts serious doubt upon the claimant’s version of the incident, and (2) the claimant’s testimony is corroborated by circumstances surrounding the alleged incident. Corroboration may also be ^provided by medical evidence. Bruno v. Harbert Int’l Inc., 593 So.2d 357 (La.1992).

The appellant argues that Abadie failed to prove that an event occurred and the lack of immediate onset of symptoms after the incident further substantiates that the event does not fall within the definition of “accident” as provided by La. R.S. 23:1021(1).

In 1990, La. R.S. 23:1021(1) was amended to include language added by Acts 1989, No. 454, effective Jan. 1, 1990, which “reflected the legislature’s intent ‘to reduce the circumstances which amounted to an accident under the pre-1990 law.’ ” Stuart v. New City Diner, 1999-2270, p. 4 (La.App. 4 Cir. 3/15/00), 758 So.2d 345, 348. In an effort to reflect the legislature’s intent to limiting the circumstances which amounted to an accident, this court has consistently held that a claimant involved in a work-related accident must show evidence of a traumatic event as defined in La. R.S. 23:1021(1). This requisite showing of a traumatic event was apparent in the Stuart case, in which the court noted “we know of no case, since the 1990 amendments to the statutory definition of ‘accident’, where a court has held that such a routine motion as lifting a tray is an ‘accident’.” Id. at p. 4, So.2d at 349.

In particular, this court requires the claimant to show that an identifiable traumatic event caused immediate or sudden onset of symptoms after the accident. Notably, in McCarroll v. Airport Shuttle, Inc., 1999-0511 (La.App. 4 Cir. 9/29/99), 743 So.2d 827, this circuit found the plaintiffs immediate, severe pain while lifting a wheelchair fit the statutory definition of an “accident”. Similarly, the Second Circuit held in Hill v. Manpower-Collier Investments, 30,444 (La.App. 2 Cir. 4/8/98), 712 So.2d 560, the claimant identified a specific event in which he | (¡suffered a shoulder injury while attempting to unhook a flat bed trailer from a truck. The court noted “Hill had immediate pain and limited motion since the incident”. In both the McCarroll and Hill cases, the claimants testified that on a particular date each one suffered a traumatic injury in which they had an immediate onset of symptoms. Accordingly, the courts held in each ease that the claimants suffered an identifiable accident wherein the symptoms were sudden or immediate as anticipated by the legislature’s amendments to the statute.

In the instant case, when Abadie was questioned as to the exact event or cause of his subsequent injury, he stated:

Q. Okay. And you also described the March 2000 aggravation as due to the heavy nature of the work assignment between March 19th to March 23rd, 2001, you felt severe pain in the same area of his lower back and was again sent to Dr. Steiner to be examined; is that correct?
A. Yes.
Q. Same area of your lower back?
A. Yes. Q. And, again, it wasn’t due to any accident, but it was just the nature of the work you are doing?
A. Yes.

Both Abadie’s testimony and the workers’ compensation judge’s written reasons expressly stated the subsequent injury was not due an identifiable event, but rather was the result of strenuous work activity over the course of a work week in March 2001. Adding to the uncertainty of the cause and date of the incident, Abadie stated it was possible that his subsequent injury may have been caused by a combination of activities during the week of March 19th in addition to the previous two weeks. Moreover, unlike the immediate onset of pain, which occurred in the first accident, Abadie stated the onset of symptoms after the subsequent incident came on gradually the weekend after he finished his work. This admission |7certainly mirrors the gradual deterioration or progressive degeneration type of injury the statute was amended to exclude.

Interestingly, the workers’ compensation judge stated in her judgment that the “Claimant testified that he exceeded his work restrictions in March 19th through 23rd of 2001 because of the employer’s deadline to complete the job with a reduced workforce.” Dr. Steiner’s deposition and notes provide sufficient evidence that he advised Abadie of the consequences of exceeding work limitations. Nevertheless, Abadie testified that he worked anywhere from fifty to fifty-five hours a week in order to build the structure by the deadline, and at no time did Abadie complain to his boss or anyone else regarding the overtime and its effect on him physically.

Equally important, the 1008 petition, filed on the same day Dr. Steiner diagnosed Abadie as having sustained a second accident, corroborated Abadie’s testimony by stating that he injured himself “During heavy concrete work over a period of several days and aggravated a pre-existing low back condition”. Abadie’s testimony failed to provide sufficient evidence that the March 21st incident produced a gradual deterioration over the course of a weekend is in direct contrast with the requisite “sudden objective findings of injury” under La. R.S. 28:1021(1).

Thus, this court finds Abadie’s lack of immediate onset of pain after the subsequent incident coupled with his inability to pinpoint a specific event does not constitute a traumatic event. Consequently, the injury he sustained due to overexertion over a period of days or weeks does not fit within the definition of an “accident” as defined by La. R.S. 23:1021(1). This court does note that in Abadie’s recorded statement submitted by the appellant into evidence at trial concerning the March 2001 “accident”, Abadie specifically cited lifting and loading heavy equipment and five gallon buckets of chemicals onto a truck on the 1 «Thursday prior to seeing Dr. Steiner as the catalyst for the recurrence of his back and leg pain. He neither attested to this specific event during his testimony nor did he notify Dr. Steiner of this event during his examination. However, we do not find the statement is so contradictory as to make Abadie’s testimony inconsistent or implausible.

Accordingly, this court finds Abadie’s testimony and Dr. Steiner’s medical reports fail to support the workers’ compensation judge’s finding that appellee’s recurrence of lower back pain and leg over the course of a three-week work period in March 2001 constituted an “accident”. Therefore, we find the workers’ compensation judge’s finding that a second “accident” occurred in March 2001 constitutes manifest error.

Incidentally, since no accident occurred in this case, we must consider whether Abadie’s subsequent injury can be considered an occupational disease according to La. R.S. 23:1031.1(B). In order for this concept to apply, Abadie must meet the overwhelming preponderance burden of proof contained in La. R.S. 23:1030.1(B), which provides:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

This classification “serves to relieve workers’ compensation claimants of the task of proving an ‘accident’ in connection with an occupational disease.” Stuart, 758 So.2d at 348.

IflAs previously noted, Abadie was diagnosed by Dr. Steiner as having Degenerative Lumbar Disc Disease and Lumbar Spondylolisthesis. Dr. Steiner’s specifically stated in his notes that “With the degenerative condition that is present in his spine I felt that if he had exceeded his limitations that I placed on him then there may be a risk of additional injury to his back.” Hence, Abadie’s diagnosis of a degenerative condition does not support a finding of an occupational disease as defined by La. R.S. 23:1031.1(B). Therefore, this court finds that Abadie’s diagnosis of degenerative disc disease precludes a finding that he met his burden of overwhelming preponderance in the instant case.

Solidary Liability of Successive Employers for Compensation Benefits and Medical Benefits

The appellant also argues the workers’ compensation judge erred in finding it solidarily liable with Hanover for Abadie’s compensation benefits and medical benefits for the second “accident” in March 2001.

If an employee in a workers’ compensation claim suffers disability due to the combination of two incidents or by virtue of the second incident aggravating the injury suffered in the first incident, both the subsequent compensation insurer and the insurer at the time of the first incident are solidarily liable for compensation benefits and medical expenses. Labeaud v. City of New Orleans, Dept. of Property Management, p. 4 (La.App. 4 Cir.1991), 576 So.2d 624, 627. See also Hill v. Manpower-Collier Investments, 30,444, p. 7 (La.App. 2 Cir. 4/8/99), 712 So.2d 560, 564, (citing, Loud v. Dixie Metal, Co., Inc., 506 So.2d 1355 (La.App. 2 Cir.1987)).

| ^Specifically, the appellant argues that the subsequent incident merely aggravated the pre-existing back injury, and consequently, solidarity does not exist in such cases.

In its written reasons, the court stated “LCTA did reasonably controvert whether or not a ‘second’ accident or re-injury occurred March 29th through 23rd of 2001 and, if there was not a second accident, LCTA was not liable. Therefore, LCTA is not accessed a penalty nor attorney fees for failure to pay indemnity and/or medical benefits;” Clearly, the language the workers’ compensation judge used to formulate her judgment, including emphasis on the word “did”, strongly suggests LCTA presented credible evidence sufficient to rebut the appellee’s contention that a subsequent accident occurred in March 2001.

Since this court did not find that the March 2001 incident constituted an “accident”, the judge incorrectly held LCTA solidarily liable with Hanover for the ap-pellee’s compensation benefits and medical expenses.

Based on the foregoing, we reverse the workers’ compensation court’s judgment.

REVERSED.


source: Caselaw Access Project

author: | .CLAIBORNE, J.

license: Public Domain

text:
    STATE of Louisiana v. Vernon ORANGE.
    No. 2002 KA 0711.
    Court of Appeal of Louisiana, First Circuit.
    April 11, 2003.

      Walter Reed, District Attorney, Coving-ton, Dorothy Pendergast, Special Appeals Counsel, Metairie, Counsel for Plaintiff-Appellee State of Louisiana.
    James A. Williams, Gretna, Counsel for Defendant-Appellant Vernon Orange.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

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

   | .CLAIBORNE, J.

The defendant, Vernon L. Orange, was charged by bill of information with armed robbery, a violation of La. R.S. 14:64. He entered a plea of not guilty. Following a hearing wherein doctor’s reports were admitted in evidence, the court found the defendant competent to stand trial. The defendant later withdrew his plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity. The defendant filed a motion to reopen the sanity commission, and the trial court granted said motion. Subsequently, the defendant withdrew his plea of not guilty and not guilty by reason of insanity and entered a plea of guilty. The trial court sentenced the defendant to forty years at hard labor without benefit of probation, parole, or suspension of sentence.

The defendant later filed an application for post conviction relief alleging that the trial court erred in failing to conduct a sanity hearing prior to the acceptance of his guilty plea. Upon contradictory hearing, the trial court granted the defendant’s application and vacated the guilty plea and sentence. The district attorney gave notice of application for writs, and a return date was set. However, nothing in the record reflects that the application was ever filed. The trial court later appointed a sanity commission. After a hearing the trial court found the defendant competent to stand trial. A trial by jury subsequently resulted in a verdict of guilty as charged. The trial court denied the defendant’s motion in arrest of judgment and motion for a new trial. Sentencing delays were waived, and the trial court imposed a sentence of forty years at hard labor without the benefit of probation, parole, or suspension of sentence. The defendant was then adjudicated a third felony offender and, again, waived sentencing delays. The trial court set aside the previous sentence and then imposed a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant now appeals urging through counsel and in pro se brief that the trial court erred in failing to hold a competency hearing after alterations in the defendant’s medication. In the defendant’s second and third counseled assignments of error, he avers that the trial court erred in imposing a sentence greater than the sentence he received for his original, vacated conviction and that the trial court erred in applying the habitual offender law in effect at the time of the offense. In the second and third pro se assignments of error the defendant submits that the trial court erred in denying the motion |3to obtain funds for an independent psychiatric evaluation and that the trial court erred in becoming a “non-impartial arbiter.”

COUNSELED ASSIGNMENT OF ERROR NUMBER ONE AND PRO SE ASSIGNMENT OF ERROR NUMBER ONE

The defendant avers, in his first eoun-séled assignment of error and first pro se assignment of error, that the trial court committed reversible error in failing to hold a competency hearing on the issue of the defendant’s medications and his ability to assist counsel in his defense. The defendant submits that defense counsel informed the court of a negative change in the defendant’s condition which may have been related to an alteration in medication. He also argues that, when the trial court requested a report concerning the change in medication from the doctors appointed to the defendant’s sanity commission, the commission was in effect reinstated, and, thus, a second hearing should have been held.

If a defendant lacks the ability to communicate effectively with counsel, he may be unable to exercise other rights deemed essential to a fair trial. Cooper v. Oklahoma, 517 U.S. 348, 364, 116 S.Ct. 1373, 1381, 134 L.Ed.2d 498 (1996). Constitutional due process requires that the trial of an accused be conducted only when he is legally competent. State v. Nomey, 613 So.2d 157, 161 (La.1993). A legal presumption exists that the defendant is sane and responsible for his actions. La. R.S. 15:432. Hence, the defendant has the burden to establish by a preponderance of the evidence his incapacity to stand trial. State v. Howard, 98-0064, pp. 3-4 (La.4/23/99), 751 So.2d 783, 791-792, cert. denied, 528 U.S. 974, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999). See Cooper v. Oklahoma, 517 U.S. at 355, 116 S.Ct. at 1377. The two-fold test of capacity to stand trial is whether the defendant: (1) understands the nature and consequences of the proceedings against him, and (2) has the ability to assist in his defense by consultation with counsel. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 903, 43 L.Ed.2d 103 (1975); State v. Bennett, 345 So.2d 1129, 1138 (La.1977) (on rehearing). While a court may receive the aid of expert medical testimony on the issue of competency to proceed, the ultimate decision of capacity rests with the trial court. La.Code Crim. P. arts. 647, 648; State v. Rogers, 419 So.2d 840, 843 (La.1982). Given the presumption of sanity, before the court is required to appoint a sanity commission, the defendant must establish by a preponderance of the evidence that reasonable grounds exist to doubt his mental Lcapacity to proceed. State v. Bickham, 404 So.2d 929, 934 (La.1981). A reviewing court owes the trial court’s determination on these matters great weight, and the trial court’s ruling will not be disturbed on appeal absent a clear abuse of discretion. State v. Bridgewater, 00-1529, p. 14 (La.1/15/02), 823 So.2d 877, 892.

In Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966), the Court held that the failure to observe procedures adequate to protect a defendant’s right not to be tried while incompetent deprives him of his due process right to a fair trial. If there is a sufficient doubt as to the mental competency of an accused, the trial court has a responsibility to order a hearing sua sponte. Griffin v. Lockhart, 935 F.2d 926, 929 (8th Cir.1991). The Pate procedural guarantee is violated when, in light of what was then known to the trial court, the failure to make further inquiry into defendant’s competence to stand trial denied him a fair trial. Lokos v. Capps, 625 F.2d 1258, 1261 (5th Cir.1980) (citing Drope, 420 U.S. at 174-175, 95 S.Ct. at 905). The relevant question is: “Did the trial judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted him to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his attorney in his defense.” Lokos, 625 F.2d at 1261.

In the instant case, the defendant was initially found competent to stand trial by a sanity commission appointed in 1996. On May 12, 1997, the defendant withdrew his not guilty plea and entered a plea of not guilty and not guilty by reason of insanity. He later withdrew this plea and entered a plea of guilty. After filing for post-conviction relief, the defendant was allowed to withdraw his guilty plea, and a trial date was set. The trial court appointed a second sanity commission to assist in the evaluation of the defendant’s competence to stand trial and sanity at the time of the offense. The sanity commission consisted of Dr. John W. Thompson and Dr. Rafael Salcedo. Both doctors conducted an examination of the defendant prior to the second sanity hearing and reviewed information concerning the defendant’s mental status. Dr. Salcedo also previously examined the defendant in 1996 and found him to be competent.

The trial court held the second sanity hearing on April 23, 2001. At the hearing, although the defendant had informed the doctors that he had difficulty remembering the ^events surrounding the offense in question, both doctors stated that they were confident in the defendant’s ability to understand the proceedings and assist his counsel. When asked to describe the defendant’s abilities and understandings of the courtroom, court personnel, court functions and legal system in general, Dr. Thompson stated that the defendant had “excellent understanding.” Dr. Salcedo described the defendant’s knowledge of the criminal justice system as above average.

At the time of the examinations, the defendant was taking antipsychotic (Ris-perdal) and antidepressant (Zoloft) medications. On cross-examination, the following colloquy took place between the defense counsel and Dr. Thompson:

Q. Now, what about if he’s not able to take these medications? Specifically, the Risperdal. Do you feel that might cause a problem if he wasn’t allowed to take these medications in terms of his ability to aid and assist me and to understand what’s going on?
A. Well, you have to take him off the medication and see how he did. It may affect him and it may not. Some individuals stop their medications and they don’t have a lot of effects. Others do and they do have effects, (emphasis added).

Both doctors, also on cross-examination, agreed that if the defendant stopped taking his current medication, the issue of competency to stand trial should be revisited. At the conclusion of the hearing, the trial court found the defendant competent to stand trial and ordered that he continue taking the medication that was currently prescribed pending the trial. Subsequently, the trial court signed joint motions by the state and defense to medicate the defendant which stipulated the prescriptions and dosages to be given the defendant.

A letter dated May 22, 2001, from Dr. Galvan of the St. Tammany Parish Jail Medical Department informed the court of minor alterations in the defendant’s medical treatment. On July 27, 2001, the defendant filed a motion to order mental examination based on the alterations in medication. The motion suggested that defense counsel was having difficulties in preparing for trial due to mood swings, lack of attention, anger, and the physical condition of the defendant. The trial court first heard arguments in support of this motion on its filing date. The court concluded that it would not be necessary to conduct another hearing on the issue of competency and did not feel that the changes in medication would affect the defendant’s ability to assist his counsel. The court stated that it would go forward. The trial judge also stated that he would allow a request for a ^report to address the defense counsel’s questions concerning the alteration in medication and the effect, if any, this would have as to the doctors’ previous competency determination. The record is unclear as to whether any such report was ever received or reviewed by the court, and in his brief on appeal, the defendant represents such reports were never prepared.

The fact that the trial judge ordered a report from the doctors previously appointed to the sanity commission was not a reinstatement or re-appointment of the sanity commission. It was an effort by the trial court to determine whether there was sufficient reason to require re-appointment of a sanity commission to be followed by a sanity hearing. The court by other means, including statements of Dr. Galvan and defense counsel, was eventually satisfied that no such reason existed.

This issue was revisited after the jury voir dire when defense counsel filed a motion for continuance. The defense counsel stated that he had been informed by the defendant that the antidepressant that he had been taking, Zoloft, was discontinued for a seven-day period and replaced by a different antidepressant called Remeron. Defense counsel also submitted that the defendant’s medications for stomach and back pains had been discontinued. He confirmed, however, the antipsychotic drug, Risperdal, had been maintained. The defense counsel stated that during that seven-day period the defendant was unable to assist him with the preparation of trial. On this basis, he requested a continuance.

The defense counsel, James A. Williams, stated that following that seven-day period, and for two weeks prior to trial, the defendant’s condition improved. When questioned as to the return of the defendant’s ability to assist his counsel, the following colloquy took place:

BY MR. WILLIAMS:
I would say, Judge, the last couple of weeks. The last two times I’ve been there he has been okay.
BY THE COURT:
Okay in the sense he’s been able to assist you in his defense?
BY MR. WILLIAMS:
Yes, sir. That’s correct.
BY THE COURT:
|7And he completely understands the proceedings and what’s going on today?
BY MR. WILLIAMS:
He, I believe, Judge, has always understood the nature of the proceedings against him, but his ability to communicate with me, I believe as an officer of the Court, I’ll report to the Court for the period of time when his medicines were changing, he was not able to aid and assist me and there was a great deal—
BY THE COURT:
So prior to that he was, for a short period he was not, and then he was again?
BY MR. WILLIAMS:
That’s correct, Judge.
BY THE COURT:
You’re telling me that today he is, in your opinion, fully able to assist you in the defense of his trial?
BY MR. WILLIAMS:
Absolutely, Judge....

The trial court reiterated its denial of the motion for mental re-examination and stated that its earlier denial was on the basis that there was no change in medication that would affect the defendant’s competency to stand trial as there were no changes in the defendant’s antipsychotic medication. The trial court also noted that defense counsel indicated that the defendant had been able to assist counsel for at least ten days prior to the trial. Defense counsel did not re-urge the motion for mental examination and reminded the trial judge that the issue was only revisited in the context of his motion for a continuance due to the time period during which the defendant was unable to assist him.

We find no abuse of discretion as to the trial court’s decision regarding the defendant’s competency to stand trial. The letter from Dr. Galvan provided the court with the specific medications that the defendant was taking and the minor alterations that took place in the antidepressant medication, i.e., the withdrawal and/or reduction in dose of Zoloft. The letter stated that the Zoloft medication was discontinued on April 30, 2001, and restarted on May 7, 2001. This was the seven-day period in which the defense counsel noted a change in the defendant’s behavior. On May 21, 2001, the dosage of Zoloft was decreased from 100 milligrams to 50 milligrams per day due to side effects. The letter clearly provided that the defendant’s antipsychotic treatment had not been altered since the examination by the members of the sanity commission. Defense | scounsel’s questioning of the members of the sanity commission at the sanity hearing concerning a change in the defendant’s medication was specifically in reference to the defendant’s antipsychotic medication. Furthermore, defense counsel clearly represented to the court that the defendant was able to assist him and understood the proceedings against him at the time of the trial. These assignments lack merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER TWO

In the second counseled assignment of error, the defendant avers that the trial court erred by imposing a sentence greater than the sentence appellant received for his original, vacated conviction. He specifically claims that the state did not seek habitual offender adjudication against the defendant after his original conviction following his previously entered and later withdrawn guilty plea, but, however, did so after the defendant was found guilty after trial by jury.

La. R.S. 15:529.1 D(l)(a) provides in part that:

If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state ... or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction .... (emphasis added).

Additionally, Code of Criminal Procedure article 61 provides as follows:

Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.

The discretion to charge a defendant under the habitual offender law lies with the district attorney. State v. Carter, 610 So.2d 972, 975 (La.App. 1st Cir.1992); see also La. R.S. 15:529.1. A defendant may be charged as an habitual offender at any time, even after conviction and sentence. La. R.S. 15:529.1 D.

Thus, a district attorney has great discretionary power to file an habitual offender bill under La. R.S. 15:529.1 D, just as he has the initial unlimited power to prosecute “whom, when, and how” he chooses. State v. Dorthey, 628 So.2d 1276, 1279 (La.1993). His use of the habitual offender laws simply provides an ancillary sentencing factor designed to serve important and legitimate societal purposes. See State v. Youngblood, 26,722, pp. 3-4 (La.App.2d Cir.12/22/94), 647 So.2d 1388, 1390, writ denied, 95-0221 (La.3/17/95), 651 So.2d 277. Furthermore, the use of the habitual offender law will not create a presumption of prosecutorial vindictiveness. The events in the course of prosecution will only create a presumption of vindictiveness if, to a reasonable mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the exercise of legal rights. See State v. Stewart, 27,049, pp. 4-5 (La.App.2d Cir.5/10/95), 656 So.2d 677, 680-681, writs denied, 95-1764 & 95-1768 (La.12/8/95), 664 So.2d 420. There is no merit in this assignment of error.

PRO SE ASSIGNMENT OF ERROR NUMBER TWO

The defendant’s second pro se assignment of error presents the contention that the trial court erred in denying the defendant’s motion to obtain funds for an independent psychiatric evaluation regarding the issue of his insanity at the time of the commission of the offense. The defendant argues that the trial court’s actions denied him the right to prepare a defense and properly place the true nature of his mental illness before the jury.

An accused has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); La. Const. art. I, § 16 (1974). Nonetheless, State v. Thomas, 310 So.2d 517, 522 (La.1975) stands for the proposition that our statutory procedure is not constitutionally infirm because it does not afford the defendant the right to have the state pay for an independent psychiatric examination.

In the instant case, as previously discussed, the trial court appointed a sanity commission to report on both the defendant’s mental capacity to stand trial and his mental capacity at the time of the offense. Dr. John W. Thompson of Tulane University in New Orleans, Louisiana and Dr. Rafael Salcedo, forensic clinical psychologist, were appointed to carry out this task. Dr. Thompson was determined to be an expert in the field of forensic psychiatry, and Dr. Salcedo was determined to be an expert in the field of forensic psychology. Dr. Salcedo and Dr. John Paul Pratt, an expert in the field of forensic psychiatry, testified during the trial. Both doctors concluded that the defendant did not suffer from any condition that would have compromised his ability to distinguish between right and wrong at the time of the offense. Both doctors conducted separate psychiatric interviews with the defendant, viewed a videotape of the incident in question, and reviewed other documents concerning the defendant’s mental status. The defense |incounsel cross-examined Dr. Salcedo and Dr. Pratt concerning the defendant’s mental capacity at the time of the offense.

The defendant relies on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 58 (1985), as authority for the proposition that he is entitled to an independent psychiatric evaluation and his contention that the trial court erred in denying funds to obtain such evaluation. However, the holding in Ake specifically provides as follows:

We therefore hold that when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense. This is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own. Our concern is that the indigent defendant have access to a competent psychiatrist for the purpose we have discussed, and as in the case of the provision of counsel we leave to the State the decision on how to implement this right.

Ake, 470 U.S. at 83, 105 S.Ct. at 1096.

We find no abuse of discretion in the trial court’s denial of the defendant’s motion requesting the court to provide funds for an independent psychiatric evaluation. The defendant was allowed sufficient access to competent psychiatrists, and appropriate examinations were conducted. This assignment is without merit.

PRO SE ASSIGNMENT OF ERROR NUMBER THREE

In the third and final pro se assignment of error, the defendant avers that his Sixth, Eighth, and Fourteenth Amendment rights under the United States Constitution were violated by acts of vindictive prosecution and sentencing. The defendant argues that the first act of vindictiveness occurred when his bond was raised, after his application for post-conviction relief was granted, from the original $50,000.00 to $750,000.00. He secondly argues that the trial court erred in allowing the defendant’s case to proceed to trial without holding a second hearing after changes in his medication occurred. Thirdly, the defendant states that the trial court was vindictive in denying him the use of an independent state-appointed expert to assist him in preparing and presenting a proper defense. Finally, the defendant avers that the trial court was vindictive in failing to consider his mental condition as a mitigating factor in sentencing.

At the outset, we note that the issues presented in the second and third contention of vindictiveness have been discussed in previous assignments. This court finds no merit Inin the defendant’s argument regarding these issues, and there is no need to discuss them again. As to the first and final issues presented, although we note that the defendant has not presented a clear legal argument in support thereof, we will, nevertheless, address these matters briefly.

Where no presumption applies, the defendant must affirmatively prove actual vindictiveness. Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed.2d 424 (1984). The defendant has failed to produce any evidence of vindictiveness on the part of the trial court or on the part of the prosecution. The defendant’s legal discussion seems to focus on prosecutorial vindictiveness. However, he has not provided a factual basis for such a contention. The defendant’s claims as to the trial court’s vindictiveness in increasing his bond and in imposing sentence is neither supported by the record nor developed in brief. We note that the trial court was fully aware of the defendant’s mental capacity at the time of the sentencing. This assignment lacks merit.

COUNSELED ASSIGNMENT OF ERROR NUMBER THREE

In the third and final counseled assignment of error, the defendant avers that the trial court erred in applying the habitual offender law in effect at the time of the offense, rather than the version of the law in effect at the time of the conviction.

The bill of information provides that the instant offense, armed robbery (in violation of La. R.S. 14:64), occurred on March 21, 1996. The defendant was convicted on August 17, 2001, and adjudicated as a third felony offender and sentenced on November 15, 2001. The defendant’s predicate offenses consisted of guilty pleas to armed robbery, in violation of La. R.S. 14:64, and attempting to obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception, or subterfuge, in violation of La. R.S. 40:971 B(l)(b). In 2001 La. Acts, No. 408, § 2, effective June 15, 2001, the Legislature amended La. R.S. 15:529.1 to require a life sentence for a third felony offender only if the third and both of the predicate offenses were crimes of violence, drug offenses punishable by imprisonment for more than ten years, and/or other types of offenses not applicable herein. Thus, applying the habitual offender law in effect at the time of the conviction and sentencing, the defendant would not be subject to a life sentence, since his prior drug offense was punishable by imprisonment for up to five years. However, the habitual offender law in effect at the Intime of commission of the instant offense required that only one of the felonies be defined as a crime of violence and mandated the imposition of a sentence of life imprisonment.

The recent case of State v. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526, applied the penalty provision of the 2001 amendment, by 2001 La. Acts, No. 1163, to La. R.S. 14:98 E (fourth-offense DWI) to an offense that occurred before the amendment. In that case the Louisiana Supreme Court concluded that although the amended version of La. R.S. 14:98 does not specifically mention the “retroactivity” of the new provisions, the statute contains three provisions which suggest that the amended version should apply in the case. Mayeux, 01-3195 at pp. 4-6, 820 So.2d at 529-530. While the Mayeux case is distinguishable because it did not deal with the provisions of LSA-R.S. 15:529.1, a similar analysis is applicable. See State v. Parker, 02-1477 (La.App. 1st Cir.3/05/03), 845 So.2d 546. State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, and the cases therein relied upon, did not deal with a habitual offender adjudication. For the reasons stated in State v. Parker, we conclude that the law in effect at the time of the adjudication is applicable. Therefore, the sentence must be vacated and the matter remanded for re-sentencing.

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED. SENTENCE VACATED. CASE REMANDED FOR RESEN-TENCING.

MCDONALD, J., concurs in part, and as to the applicable date of the habitual offender law, dissents in part for reasons given in State v. Parker, 2002 KA1477 decided March 5, 2003.

      . The trial court's denial of the defendant’s motion for continuance is not at issue on appeal.


author: LAMY, Judge.

text:
    STATE of Louisiana v. Roberto DELGADO.
    No. 03-46.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    William E. Tilley, District Attorney, 30th Judicial District Court, Leesville, LA, for Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Roberto Delgado.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   LAMY, Judge.

After pleading guilty to the charge of indecent behavior with a juvenile, the defendant appeals his sentence, alleging that the sentence is unconstitutionally excessive. For the following reasons, we affirm.

Factual and Procedural Background

The defendant, Roberto Delgado, was charged by bill of information with indecent behavior with a juvenile, a violation of La.R.S. 14:81. The defendant initially entered a plea of not guilty on May 21, 2001. However, on September 2, 2002, the defendant entered a guilty plea pursuant to a plea agreement, with the recommendation that his sentence run concurrently with any other sentence that he may receive in connection with the events at issue. According to a pre-sentence investigation report, the defendant and the thirteen-year-old victim were at a party at a residence in Leesville, Louisiana. The report further states that, after the victim had been drinking heavily, she was found in bed with the defendant lying on top of her; both the victim and defendant were described as being naked from the waist down. On November 2, 2002, the trial court sentenced the defendant to serve five years at hard labor, with all sentences imposed on the defendant in connection with the events at issue running concurrently, and to pay a fine of $1,200.00 plus costs of court. Notably, the defendant was given credit for time served. After a motion to reconsider his sentence was denied, the defendant brought the instant appeal, alleging the following assignment of error: “The sentence imposed is unconstitutionally excessive for this young offender.”

| ^Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of record and have found no such errors.

Excessive Sentence

In his brief, the defendant points out that he was twenty-one years old at the time of the offense. He contends that his youth should be viewed as a mitigating factor in considering an appropriate sentence. The defendant also notes that his criminal history, which was considered by the trial court when imposing sentence, is constituted of only non-violent offenses. In sum, the defendant asserts that the trial court failed to sufficiently particularize his sentence and that the five year sentence serves no useful purpose and constitutes a needless infliction of pain and suffering. We find that the defendant’s assignment of error lacks merit.

Article 1, § 20 of the Louisiana Constitution prohibits “cruel, excessive, or unusual punishment.” Since the trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case, it is given broad discretion to impose a sentence within the statutory limits. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924; State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). As such, when reviewing a sentence, “an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion.” State v. Blackmon, 99-391, p. 7 (La.App. 3 Cir. 11/3/99), 748 So.2d 50, 53, writ denied, 99-3328 (La.4/28/00), 760 So.2d 1174. In the absence of a manifest abuse of discretion, an appellate court will |3not set aside a sentence as excessive. State v. Roberts, 96-603 (La.App. 3 Cir. 11/6/96), 683 So.2d 1335.

The defendant may establish that the trial court abused its discretion by showing that “the sentence makes no measurable contribution to acceptable penal goals and therefore, constitutes nothing more than a needless imposition of pain and suffering.” State v. Jordan, 98-101, p. 7 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 39. A defendant may additionally challenge a sentence on the grounds that the trial court failed to adequately comply with La.Code Crim.P. art. 894.1 in particularizing the defendant’s sentence. Addressing the issue of compliance with La.Code Crim.P. art. 894.1, a panel of this court stated:

The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether a suspension of a sentence or probation is warranted. La.Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Ciim.P. art. 894.1. State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992). However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).
If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resen-tencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also, Smith, 433 So.2d 688 and State v. Stein, 611 So.2d 800 (La.App. 3 Cir.1992). Even though art. 894.1 has undergone several major revisions, the reasoning used in these cases is still applicable.

State v. Anderson, 95-1688, pp. 4-5 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.

|4The defendant pled guilty to indecent behavior with a juvenile. La.K.S. 14:81(C) provides:

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

When imposing the defendant’s sentence, the trial court stated:

All right, sir. The court also considered the factors under Article 894.1 of the Code of Criminal Procedure and found that the following were applicable. First, there was some harm of an emotional type to the victim in this case and I understand that she had had [sic] some history of, of some sexual abuse before. There are no substantial grounds which would tend to excuse or justify this defendant’s criminal conduct, nor did he act under strong provocation by the victim or anyone else at the party that night. He’s 23 years of age. He is single and has one child. He has some employment record or history in that he has worked primarily as a laborer or as a waiter. He has a high school education. He has some history of alcohol use and he has a prior criminal record and he has already referred to that briefly in that he’s been convicted on October 14th, 1997 in the 5th District Court in Cedar City Utah of the offense of forgery and theft of a vehicle. He was given 36 months probation for that and then his probation in April of this year was revoked and he is doing the time there apparently as well. He is, therefore, a second felony offender.

We conclude that the trial court gave adequate consideration to the factors set out in La.Code Crim.P. art. 894.1 when imposing the defendant’s sentence. Further, we note that the defendant’s sentence falls well within the statutory limits. We are also mindful that the defendant bene-fitted from his guilty plea. First, although the defendant was a second felony offender, he was not sentenced as a habitual offender; and, as a result, he was not exposed to the greater possible sentence of fourteen years. Second, the trial court ordered that all sentences imposed on the defendant for the events at issue would run concurrently rather than consecutively. Due to the benefit received by the defendant, as well as the considerations given by the trial court when | imposing sentence on the defendant, we conclude that the trial court did not manifestly abuse its discretion when it sentenced the defendant to serve five years at hard labor, to be served concurrently with any other sentence imposed, and to pay a fine of $1,200.00 plus costs of court.

DECREE

The sentence of the defendant, Roberto B. Delgado, is affirmed.

AFFIRMED.


author: | THIBODEAUX, Judge.

text:
    Bertha B. Bourque and Nelson J. BOURQUE v. LOUISIANA HEALTH SYSTEMS CORPORATION.
    No. 03-56.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Rehearing Denied June 4, 2003.

      Keith Dunn Jones, Stanley R. Aaron, Jones, Aaron & Smith, Baton Rouge, LA, for Plaintiff/Appellant, Bertha B. Bourque and Nelson J. Bourque.
    Nicholas Gachassin Jr., Juñe Savoy, Ga-chassin Law Firm, Lafayette, LA, for Defendant/Appellee, Louisiana Health Systems Corporation.
    Peter Elliot Sperling, Nairda Teresa Colón, Gary L. Hanes, Kathryn Montez Caraway, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, LA, for Defendant/Appellee, Blood Systems, Inc. d/b/a United Blood Services.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   | THIBODEAUX, Judge.

In this strict products liability action, the plaintiffs, Bertha and Nelson Bourque, appeal the trial court’s judgment granting defendants’, Louisiana Health Systems Corporation d/b/a Lafayette General Hospital (“Lafayette General”) and Blood Systems, Inc. d/b/a United Blood Services (“Blood Systems”), peremptory exceptions of prescription. The trial court found that Mrs. Bourque knew shortly after her motorcycle accident in 1975 that she had contracted hepatitis, and that her diagnosis was causally connected to blood transfusions she received as a result of the accident. According to the trial court, Mrs. Bourque’s knowledge in or about 1975 or 1976 that she likely contracted hepatitis from the transfusion commenced the running of the one-year prescriptive period pursuant to La.Civ.Code art. 3492. Thus, plaintiffs’ claim had prescribed.

We disagree and reverse. We find that Mrs. Bourque was not put on notice that she had Hepatitis C until April of 1998. She filed suit in March of 1999, less than one year after her diagnosis, which was timely. As a result, her claim has not prescribed.

I.

ISSUES

We shall consider whether prescription began to run as to Mrs. Bourque’s Hepatitis C claim when she was diagnosed with Hepatitis B in 1975.

II.

FACTS

Bertha and Nelson Bourque suffered severe injuries in a motorcycle collision in August of 1975. The Bourques were treated at Lafayette General. During |Pthe course of their treatments, both Mr. and Mrs. Bourque received blood transfusions; however, only Mrs. Bourque developed jaundice and extreme fatigue once she was released from the hospital. Within weeks of her release, Mrs. Bourque was diagnosed with hepatitis. She was later informed that she likely contracted serum hepatitis or Hepatitis B from the blood transfusions. From 1975 to 1977, Mrs. Bourque was bedridden as a result of her illness.

In April 1998, Mrs. Bourque was diagnosed with Hepatitis C. At that time, she was informed that she likely contracted Hepatitis C from the blood transfusions she received in 1975. Mrs. Bourque informed her doctor that she had been diagnosed with serum hepatitis or Hepatitis B before, but had no knowledge that she had contracted Hepatitis C.

On March 1, 1999, the Bourques filed suit against Lafayette General. In turn, Lafayette General filed a third-party demand against Blood Systems, the entity from which Lafayette General purchased the blood. Subsequently, the Bourques amended their petition and added Blood Systems as a defendant in their suit. Both Lafayette General and Blood Systems filed exceptions of prescription, maintaining that the Bourques’ cause of action had prescribed.

On July 22, 2002, the trial court heard the defendants’ exceptions in open court. On July 25, 2002, the trial court provided its written reasons for judgment, granting defendants’ exceptions and dismissing the Bourques’ claims against Lafayette General and Blood Systems. Lafayette General’s third-party demand against Blood Systems was also dismissed. On August 9, 2002, the trial court signed and entered judgment granting the exceptions. The Bourques appeal this judgment.

_b.ni.

LAW AND DISCUSSION

Plaintiffs assert that prescription did not begin to run as to Mrs. Bourque’s Hepatitis C claim when she was diagnosed with Hepatitis B in 1975. We agree.

La.Civ.Code art. 3492 provides that [d]elictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained. Damage is considered to have been sustained, within the meaning of the article, only when it has manifested itself with sufficient certainty to support accrual of a cause of action.
The doctrine of contra nonvalentem agere nulla currit praescriptio [often referred to as the discovery rule because the cause of action will not accrue until the plaintiff discovers the injury] prevents the running of liberative prescription where the cause of action is not known or reasonably knowable by the plaintiff...

(Emphasis added). (Citations omitted). Cole v. Celotex Corp., 620 So.2d 1154, 1156 (La.1993).

Plaintiffs allege that Mrs. Bo-urque’s Hepatitis C claim did not begin to accrue until Mrs. Bourque was diagnosed with Hepatitis C in 1998. At this time, Mrs. Bourque knew or reasonably would have known about the illness and its causal connection to the blood transfusions once her doctor informed her. However, prior to her diagnosis, plaintiffs maintain that Mrs. Bourque had no knowledge that she had contracted Hepatitis C.

Prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong. Prescription should not be used to force a person who believes [s]he may have been damaged in some way to rush to file suit against all parties who might have caused that damage. On the other hand, a plaintiff will be responsible to seek out those whom [s]he believes may be responsible for a specific injury.
|4When prescription begins to run depends on the reasonableness of a plaintiffs action or inaction.

(Emphasis added). Id.

Mi's. Bourque does not deny that she was informed that she had contracted serum hepatitis or Hepatitis B in 1975. In fact, Mrs. Bourque admitted that she was bedridden for approximately eighteen months as a result of this illness. However, no one told her that she had contracted Hepatitis C nor Hepatitis non-A, non-B, as it was commonly referred to in 1975, until 1998. Hepatitis B and Hepatitis C are not the same diseases, and knowledge of one does not provide knowledge of the other. Thus, Mrs. Bourque was not put on notice of contracting Hepatitis C when she contracted Hepatitis B in 1975, and prescription did not begin to run until 1998.

Defendants support their argument by relying on two Louisiana cases: (1) Anderson v. Beauregard Memorial Hosp., 97-1222 (La.App. 3 Cir. 3/6/98); 709 So.2d 283, and (2) Turnage v. Columbia Lakeside Hosp., 98-1263 (La.App. 5 Cir. 3/30/99); 731 So.2d 919, writ denied, 745 So.2d 26 (La.1999). Lafayette General and Blood Systems maintain that these two cases are strikingly similar to the facts before us in this case. We find that the facts in the instant ease are distinguishable from both Anderson and Tumage.

In Anderson, Paula Anderson was diagnosed with Hepatitis C in 1993. Previously in 1974, Anderson had received a blood transfusion during a complicated pregnancy. The plaintiff had received only one blood transfusion to her knowledge. The Andersons alleged that the blood given to Mrs. Anderson by the hospital was contaminated and filed suit thereafter. The trial court found that the Andersons’ claim had prescribed, and in Anderson, we affirmed the trial court’s judgment. However, this same set of circumstances is not presented in the present case.

|RWe find that Anderson is factually similar to the present case only to the extent that the plaintiff contracted Hepatitis C from a blood transfusion. This case concerns whether a plaintiffs claim for Hepatitis C exposure prescribed when the plaintiff contracted Hepatitis B in 1975. It addresses a very specific issue, and though Anderson involves a plaintiff who contracted Hepatitis C, we find that the novelty of this issue sets it distinctly apart from Anderson.

Mrs. Anderson was never diagnosed with one disease, and later informed that she had contracted another disease, similar in name, but separate and distinct medically, whereby the knowledge of one might serve to prevent the pursuit of a legal claim on the other injury once discovered, as defendants are assert in this case. Additionally, “the record reveal[ed] that before [Mrs. Anderson] was diagnosed with hepatitis C, she was aware that it might have been caused by the 1974 transfusion.” Anderson, 709 So.2d at 285. In our ease, Mrs. Bourque had no knowledge prior to 1998 that she had contracted Hepatitis C; perhaps she had contracted Hepatitis B, but these are completely different diseases. Further, there was no dispute over whether Mrs. Anderson had Hepatitis C or not and that her Hepatitis C had resulted from the blood transfusions. Mrs. Bo-urque believed up until 1998 that she contracted Hepatitis B from the blood transfusions in 1975. In fact, as she sought medical care, her testimony indicates that she always included in her medical history that she had Hepatitis B before. Thus, it was only when she was informed by her physician in 1998 that she learned that she had Hepatitis C and that the source of that disease might be related to the 1975 blood transfusions.

Similar to Anderson, the plaintiff in Turnage contracted Hepatitis non-A, non-B from a blood transfusion administered while giving birth. Shortly after her hospitalization, the plaintiff was tested for Hepatitis A and B, and both results were 1 ^negative. At that time, the plaintiffs doctors diagnosed her with Hepatitis non-A, non-B, which is now known as Hepatitis C. “Plaintiff and her doctors believed at that time, as they do today, that the hepatitis was contracted from blood used in the blood transfusion at Lakeside Hospital.” Turnage, 731 So.2d at 920. In 1996, Mrs. Turnage was diagnosed with Hepatitis C by her physician. Recognizing that Hepatitis non-A, non-B was now known as Hepatitis C, the trial court granted the defendants’ exceptions of prescription, finding that the plaintiff was put on notice in 1974 that she had contracted Hepatitis C. As a result, her claim had prescribed, and the fifth circuit affirmed. Though the “doctors did not diagnose her with Hepatitis C, which was unknown at the time, ... they did diagnose a form of hepatitis which was probably a result of the blood transfusion.” Id. at 922. The fifth circuit found that the “plaintiff had knowledge of her condition as far back as 1975, and the doctrine of contra non valentem [was] not applicable in [that] case.” Id.

Mrs. Bourque was diagnosed with neither Hepatitis C nor Hepatitis non-A, non-B in 1975, but was diagnosed with Hepatitis B. When she was diagnosed in 1998, Mrs. Bourque was not aware that she had Hepatitis C nor could she have reasonably concluded that the Hepatitis C was causally connected to the blood transfusions in 1975, when she was told that she had Hepatitis B as a result of the transfusions. Equally important is the fact that the plaintiff in Turnage clearly knew that she did not have Hepatitis A or Hepatitis B from her test results unlike Mrs. Bourque. Mrs. Turnage was never under the impression that she had a disease other than Hepatitis non-A, non B or Hepatitis C. Thus, we find that Turnage is distinguishable from this case before us.

We find that the plaintiffs have adequately met their burden by demonstrating that a plaintiff cannot be precluded from asserting a claim for a |7completely different disease diagnosed at a later time, from one contracted previously. Mrs. Bo-urque’s own testimony adequately supports her claim. Thus, the trial court erred in granting the exceptions of prescription because plaintiffs’ claim was filed timely, within one year from the time the injury was discovered.

IV.

CONCLUSION

For the foregoing reasons, the judgment of the trial court in favor of the defendants, Louisiana Health Systems Corporation d/b/a Lafayette General Hospital and Blood Systems, Inc. d/b/a United Blood Services is reversed. Judgment is hereby entered in favor of the plaintiffs, Nelson and Bertha Bourque. Costs of this appeal are assessed against the defendants-appel-lees.

REVERSED AND REMANDED FOR TRIAL ON THE MERITS.

      . According to Mrs. Bourque, the doctor informed her that she was diagnosed with serum hepatitis in 1975. She believed that serum hepatitis was the same as Hepatitis B.


author: JjDOUCET, Chief Judge.

text:
    Randolph Wallace HARPER v. FALRIG OFFSHORE, INC.
    No. 03-28.
    Court of Appeal of Louisiana, Third Circuit.
    April 30, 2003.
    Rehearing Denied June 4, 2003.
    Steven Broussard, Lake Charles, LA, for Plaintiff/Appellee Randolph (Randy) Wallace Harper, Taylor Alexander Harper, and Blake Lee Harper.
    Edwin Gustav Preis Jr., Richard J. Hy-mel, Lafayette, LA, for Defendant/Appellant Falrig Offshore, Inc.

      Court composed of NED E. DOUCET, JR., Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   JjDOUCET, Chief Judge.

The Defendant, Falrig, Inc., appeals the trial court’s award of future wage loss made pursuant to a remand from this court. The question before this court is whether the trial court properly followed the decision rendered by this court remanding this case.

The court, in its previous opinion in this matter, Harper v. Falrig Offshore, Inc., 00-694, p. 1 (La.App. 3 Cir. 12/20/00); 776 So.2d 620, 623, outlined the pertinent facts and its findings as follows:

Mr. Randy Harper worked on a Fal-rig Offshore, Inc.’s (Falrig) jack-up rig (Falrig 19) more than three miles off Louisiana’s coast. On the morning of November 7, 1996, his supervisor ordered him to install a rain shield over the crew’s living quarters entrance. While working from a wooden stepladder approximately 45 inches above the deck, he fell while reaching for a sledge hammer being handed to him from above the first deck level. As a result of his fall, he broke his left heel bone and injured his back and neck. Later, he filed suit against his employer, Falrig, and its insurer, Steamship Mutual Underwriting Association Limited (Steamship), alleging unseaworthiness and negligence under the Jones Act. He also sued the ladder manufacturer, Blue Ribbon Ladder Company (Blue Ribbon)but it reached a minimal settlement before trial. After a bench trial, the trial court assessed 75% of the fault to Mr. Harper and 25% to Falrig. It awarded $75,505.00 for past and future medicals; $250,000.00 for past, present, and future pain and suffering; $20,000.00 for loss of household services, and $606,528.00 for past and future lost wages.
All parties appealed.All question the trial court’s future wage loss award.
We affirm the trial court’s findings of fault concerning Falrig, its apportionment of fault between the parties, its finding that the vessel was seaworthy, the general damages award, and the involuntary dismissal decisions. However, we reverse the future wage loss award and remand for a new trial on that issue.

On May 15, 2002, the trial court again heard testimony regarding the issue of future wage loss. Experts for both parties testified. The trial court accepted the testimony of the Plaintiffs expert and awarded damages for future wage loss in the Lamount of $595,134.00. Falrig appeals asserting that the trial court erred in using a wage base other than the Plaintiffs gross earnings at the time of his injury in calculating the future wage loss.

This court in its previous ruling on this matter found that:

Because of our decision below concerning this issue, we need only address Mr. Harper’s expert’s use of a projected wage for Mr. Harper in April of 1998, which included two pay increases, rather than using the date of the accident. The law for calculating future wage losses in maritime cases is found in Culver v. Slater Boat Co., [722 F.2d 114 (5th Cir.1983) (en banc), cert. denied, 467 U.S. 1252, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984),] also known as Culver II. It clearly provides that the calculation of the present value of future lost wages “begins with the gross earnings of the injured party at the time of the injury.” [Id. at 117.] At trial, Mr. Harper’s economist based his estimates on a wage base higher than his actual gross wages at the time of the injury. The trial court then reduced his estimate of $597,687.00 by an amount it felt appropriate because Mr. Harper had chosen not to seek higher paying employment. The base from which the trial court made its reduction was not calculated in compliance with Culver II. Thus, because its award is infected with legal error, we reverse it.

Falrig asserts that the Plaintiffs expert did not follow this courts ruling and that, as a result, the trial court erred in accepting Plaintiffs expert’s projection of future wage loss. However, we find nothing either in Culver II, nor in this court’s previous decision which requires that the court disregard pay raises which a Plaintiff was scheduled to receive. Culver requires only that earnings that are “so speculative that they cannot accurately be determined” be excluded. Culver, 722 F.2d at 120. Culver further states in Footnote 2 that: “The paramount concern of a court awarding damages for lost future earnings is to provide the victim with a sum of money that will, in fact, replace the money that he would have earned.” Our previous opinion in this case required that Culver be followed by beginning the calculation of future wage loss with the Plaintiffs gross earnings at the time of the accident. Nothing in that opinion requires that the court disregard wage increases which the Plaintiff was ^certain to achieve had he continued working. After reviewing the reports and depositions of both the Plaintiffs and the Defendant’s experts, we find that the Plaintiffs expert economist, Dr. Bettinger, correctly followed the Culver II method and this court’s prior opinion in this matter in calculating the future wage loss. Nor do we find any error in the trial court’s decision to credit Dr. Bettinger’s testimony and calculations over those of Dr. Boudreaux in making an award of damages for future loss of wages.

The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding of fact in this regard will not be overturned unless clearly wrong. Rosen v. State, 2001-0499 (La.App. 4 Cir. 1/30/02), 809 So.2d 498, 505 citing DeSambourg v. Board of Comm’rs for Grand Prairie Levee Dist., 608 So.2d 1100, 1108 (La.App. 4th Cir.1992). Further, the assessment of credibility of competing expert witnesses is best left to the trier of fact, who has the opportunity to observe the respective demeanor of the witnesses. Id., citing Cash v. Charter Marketing Co., 607 So.2d 1036, 1039 (La.App. 3rd Cir.1992).

Doe v. Archdiocese of New Orleans, 01-739, p. 8 (La.App. 4 Cir. 5/8/02); 823 So.2d 360, 365, writ denied, 02-1960 (La.11/8/02); 828 So.2d 1127.

Finding no error in the trial court’s judgment on remand, we affirm. Costs of this appeal are assessed the Defendant/Appellant.

AFFIRMED.


author:
I,MAX N. TOBIAS JR., Judge.
      11 ARMSTRONG, J.,

text:
    Maximillion HARVEY, et al. v. William COLE, Jr., et al.
    No. 2002-CA-1704.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 30, 2003.
    Rehearing Denied May 30, 2003.

      Stephen D. Marx, Chehardy, Sherman, Ellis, Breslin, Murray & Recile, Metairie, LA, for Intervenor/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., and Judge LEON A. . CANNIZZARO, JR.
   I,MAX N. TOBIAS JR., Judge.

The appellani/intervenor, Consumer Capital, Inc., appeals from a judgment granting an exception of no right of action, which dismissed its intervention. After a review of the record and the applicable law, we reverse the trial court and remand the matter for further proceedings.

This case began as a personal injury lawsuit with four plaintiffs, two of whom, Maximillion Harvey and Leroy Treadwell (hereinafter “the plaintiffs”), were represented by Evan Tolchinsky, a now disbarred lawyer. Tolchinsky had a written retainer agreement with both of the plaintiffs. The legal representation was terminated upon Tolchinsky’s disbarment and the plaintiffs were referred to Ivan David Warner, III for representation. Mr. Warner and Tolchinsky executed two written contracts whereby Mr. Warner agreed to give Tolchinsky 60% of the attorney’s fees generated in each case.

Tolchinsky, while a practicing attorney, and Consumer Capital entered into a contractual arrangement under which Consumer Capital advanced money to or on 12behalf of Tolchinsky’s clients to pay medical, litigation, and living expenses during the pendency of the lawsuits (hereinafter referred to as the “Loan Program”). Under the terms of the Loan Program, Consumer Capital is repaid out of the proceeds of any settlement or judgment that may result from the litigation. Further, Tol-chinsky agreed that even if no settlement or judgment proceeds were obtained, he remained hable to Consumer Capital for repayment of the monies advanced to his clients. The Loan Agreement was executed on 31 July 1996.

In addition, Tolchinsky executed a continuing guaranty on 31 July 1996, wherein he personally guaranteed repayment of all indebtedness due to Consumer Capital by all of his clients. Tolchinsky also executed a security agreement, wherein he secured his personal guaranty to Consumer Capital by assigning to it any and all rights he had to attorney’s fees, present and future. Finally, Tolchinsky executed a financing statement (hereinafter referred to as the “UCC-1”), which enabled Consumer Capital to perfect its security interest in his right to receive payment for professional services rendered by him. The UCC-1 was recorded by Consumer Capital with the Louisiana Secretary of State on 1 August 1996 and given the filing number 17-1122032, thereby perfecting Consumer Capital’s security interest as to third parties.

During the course of the Loan Program, Consumer Capital advanced a significant amount of money to Tolchinsky on behalf of his clients. Many of the loans were made to Tolchinsky’s clients whose cases did not generate any money or sufficient funds to repay the loans. However, under the terms of the Loan | .«¡Program and the continuing guaranty, Tolchinsky remained obligated to repay the money, but, despite amicable demand by Consumer Capital, did not. Consumer Capital has been unable to locate Tolchinsky and believes that he may be residing out of the country.

The plaintiffs ultimately prevailed in the captioned lawsuit and a contingency fee was generated; as the original attorney, Tolchinsky was entitled to some portion of the fee. In order to recover his fee, Tolchinsky retained counsel, Robert G. Harvey, who filed an intervention on 8 March 2002 in the underlying suit to protect Tolchinsky’s interests. Based on the documents executed by Tolchinsky as discussed above, Consumer Capital intervened on 17 August 2001.

In response to both interventions, the plaintiffs filed numerous exceptions, which were set for hearing on 4 April 2002. The trial court denied those relating to Tol-chinsky’s intervention and sustained the exception of no right of action relating to Consumer Capital’s intervention. In the reasons for judgment, the trial court stated:

The issue of a Creditor intervening in litigation to collect a debt was addressed by the Fourth Circuit Court of Appeal in Lewis v. Kubena, 2000-2362 (La.App. 4 Cir. 10/24/01), 800 So.2d 68. In Lewis a finance company, Oceanside, Inc. provided attorneys with loans to finance litigation expenses including advances to the clients. Oceanside intervened in the Lewis matter for the repayment of the loans.
The Fourth Circuit affirmed the District Court’s dismissal of Oceanside’s intervention |4holding that Louisiana Code of Civil Procedure article 1091 requires that:
the right asserted by the intervenor must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights.
Oceanside’s loan agreement specifically stated that “if the case is lost the loan becomes due and payable immediately.” That sentence establishes that Oceanside’s claim of repayment would be unaffected by any judgment rendered in the case.
This Court finds the same set of circumstances surrounding the loan agreements Consumer Capital asserts gives them [sic] the right to intervene. Consumer Capital’s rights are unaffected by the outcome of any judgment in the above captioned matter. Thus, Consumer Capital does not meet the requirements of Louisiana Code of Civil Procedure article 1091.

After it granted the exception of no right of action, counsel for the plaintiffs and counsel for Tolchinsky allegedly met with the trial court in chambers and “tried” Tolchinsky’s claim to a portion of the fee. Consumer Capital’s attorney represented at oral argument that he was excluded from the “trial,” as reflected in the judgment of 4 April 2002. A consent judgment in favor of Tolchinsky in the amount of $25,000.00 plus costs was rendered on 4 April 2002. Despite objections by Consumer Capital, counsel for Tolchin-sky was permitted to withdraw the 15money from the registry of the court for immediate disbursement “without respect to appellate delays.”

Consumer Capital appeals the judgment, arguing that the trial court erred in granting the exception of no right of action and that the court’s reliance on Lewis v. Kubena, 2000-2362 (La.App. 4 Cir. 10/24/01), 800 So.2d 68, is misplaced. It also contends that the trial court erred in allowing Tolchinsky to “resolve” his claim for attorney’s fees as his claim had been assigned to Consumer Capital. Finally, Consumer Capital asserts that the trial court erred in permitting the parties to withdraw all the funds from the registry of the court, despite Consumer Capital’s right to a sus-pensive appeal from the granting of the exception.

An action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (1972). The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885.

In Foltmer v. James, 2001-1510, p. 3 (La.App. 4 Cir. 9/12/01), 799 So.2d 545, 547, we stated:

In Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328 (La.1972), the Louisiana Supreme Court listed two possible questions that can be raised by an exception of no right of action: (1) “whether the plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy,” or (2) “whether plaintiff has the right to invoke a remedy which the law extends only conditionally.” Id. at 1096, 262 So.2d 328, 262 So.2d at 333.

In the case at bar, Consumer Capital has a cause of action, which could only conditionally be asserted in this case.

The requirements of an intervention are set forth in La. C.C.P. art. 1091, which provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.

Consumer Capital argues that no prohibition exists against an attorney assigning his fee to a creditor as collateral. We agree. We have reviewed the documents on which Consumer Capital relies and find that it has a protected security interest in Tolchinsky’s accounts, as defined in La. R.S. 10:9-102(a)(2). |7However, this does not automatically give Consumer Capital the right to intervene in the underlying lawsuit to recover the money to which it argues it is entitled.

The right to intervene requires the existence of a justiciable cause between the parties that is related or connected to the facts of the principal demand where a judgment on the principal demand will have a direct impact on the intervenor’s rights. In re Medical Review Panel Claim of Dunjee, 97-0451, 97-0452 (La.App. 4 Cir. 5/27/98), 715 So.2d 64.

The issue presented herein is similar to that recently addressed in Scott v. Metropolitan Life Insurance Co., 2001-1693 (La.App. 4 Cir. 12/5/01), 803 So.2d 1008, in which an attorney, Mr. Robichaux, filed a petition of intervention for breach of contract alleging that he was entitled to attorney’s fees as a result of his contract with plaintiffs counsel to provide consulting and support services. The plaintiffs attorneys were named as defendants-in-intervention. The defendants-in-intervention filed various exceptions, including no right of action, which was denied by the trial court. In response, the defendants-in-intervention filed a supervisory writ with this court, which we granted, stating:

A review of the petition filed by Robi-chaux reveals that it fails to comply with the requirements of article 1091. Plaintiff in intervention did not join with either the plaintiffs or the defendants against the other. Nor did the plaintiff in intervention assert allegations against both the plaintiff and defendant. In fact, the plaintiff did not name the plaintiffs or defendants as defendants in intervention. The plaintiff in intervention named entirely new defendants in his petition. Plaintiff in intervention named as defendants the plaintiffs’ present attorney, his law firm, and the members of his law firm alleging that plaintiff in intervention and plaintiffs’ present attorney entered into a contract in which plaintiff in intervention was to provide consulting and support services for plaintiffs’ attorney in the litigation filed in St. Bernard Parish.
| ^Plaintiff in intervention contends that his petition is similar to liens filed by attorney pursuant to La. R.S. 37:218. That statute allows an attorney to assert a privilege to fees owed in a prior client’s cause of action while the litigation is pending. However, plaintiff in intervention’s argument is without merit, as plaintiff has not entered into a contract with the Scotts and the other original plaintiffs. Plaintiff in intervention has allegedly entered into a contract with another attorney to assist that attorney with his representation of the original plaintiffs. Plaintiff has not produced any evidence in support of his argument that the Scott plaintiffs authorized Maples to hire and/or contract with Robichaux. Furthermore, Robi-chaux has not even produced a signed contract between himself and Maples. A contract, if it exists, concerns the parties to the contract, i.e., Robichaux and Maples, not the plaintiffs and the defendants named in the original asbestos litigation and does not depend upon the outcome of the original litigation.

Id. at pp. 4-5, 803 So.2d at 1010-11.

The same reasoning applies here. While Consumer Capital has produced a signed contract between it and Tolehinsky, that contract concerns only Consumer Capital and Tolehinsky, not the plaintiffs in the underlying personal injury action. Further, Consumer Capital has no direct interest related to or connected with the object of the pending action. Finally, as in Lewis v. Kubena, supra, because Consumer Capital’s claim for repayment is unaffected by any judgment on the main demand, the “required connexity” to support the intervention has not been established. Id. at p. 6, 800 So.2d at 72.

As discussed in the concurrence in Lewis, Consumer Capital’s cause of action is properly asserted in a separate suit against Tolehinsky and Warner, who is also a guarantor. In the alternative, Consumer Capital could have intervened and sought a writ of attachment to secure its interest in the attorney’s fees. As set forth in La. C.C.P. art. 3541:

IflA writ of attachment may be obtained when the defendant:
(1) Has concealed himself to avoid service of citation;
(2) Has granted a security interest under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.), or has mortgaged, assigned, or disposed of his property or some part thereof, or is about to do any of these acts, with intent to defraud his creditors or give an unfair preference to one or more of them;
(3) Has converted or is about to convert his property into money or evidences of debt, with intent to place it beyond the reach of his creditors;
(4) Has left the state permanently, or is about to do so before a judgment can be obtained and executed against him; or
(5) Is a nonresident who has no duly appointed agent for service of process within the state.

A writ of attachment could not have been more clearly designed to fit Consumer Capital’s claims, circumstances, and situation. Here, Consumer Capital could have attached Tolchinsky’s interest in the plaintiffs’ suit. Thus, the Code of Civil Procedure provides a procedural mechanism that specifically envisions the factual scenario under which Consumer Capital found itself. However, despite our holding that an intervention alone is not the proper procedural tool to accomplish Imthe objective sought by Consumer Capital, we do find that the trial court committed reversible error.

Pursuant to La. C.C.P. art. 934:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. [Emphasis added.]

Justice and fairness require that permitting Consumer Capital to amend its intervention to include a request for a writ of attachment would have cured the defect that required the granting of the exception of no right of action. This statutory right to amend was not permitted by the trial court, thus constituting reversible error.

In addition, we do not approve of the court’s subsequent acts on 4 April 2002. As reported by counsel for Consumer Capital at oral argument, immediately after the court overruled the objections to Tolchinsky’s intervention and dismissed Consumer Capital’s intervention, the trial court allegedly met in chambers with counsel for the plaintiffs, Mr. Warner and Steven J. Rando, and Tolchinsky’s counsel, Mr. Harvey, to determine a “reasonable” attorney’s fee due Tolchinsky. The panel inquired during oral argument why counsel for Consumer Capital was not in the meeting; the panel was told that although Consumer Capital’s attorney requested to be present, such request was allegedly denied since Consumer Capital was no longer in the lawsuit. While this exchange was not on the record, the judgment on the merits of Tolchinsky’s intervention lists only Messrs. Warner, Rando, and Harvey as present at the “trial.” Although the trial court correctly determined that Consumer Capital could not intervene in the personal injury suit, l^the documents introduced by it into the record evidence that it has a security interest in the attorney’s fee; its attorney should have been allowed to attend the “trial” because the judgment dismissing it from the suit was appealable and not final.

Even more egregious, however, was the trial court’s order allowing all the money in the registry of the court to be withdrawn, in blatant violation of Consumer Capital’s stated appellate rights. Under the Louisiana Code of Civil Procedure, Consumer Capital had the absolute right to take a suspensive appeal from the granting of the exception against it and post appropriate security to suspend the execution of the judgment. Although the issue is effectively moot, we find that the trial court violated Consumer Capital’s rights in its actions.

For the reasons above, we reverse the judgment and remand the matter to the trial court so that Consumer Capital may amend its pleadings in accordance with this opinion, and proceed thereafter in accordance with law. All costs of this appeal are assessed against the appellees.

REVERSED AND REMANDED.

ARMSTRONG, J., concurs in the result.

11 ARMSTRONG, J.,

dissents.

On Application for Rehearing.

I respectfully dissent from the denial of the petition for rehearing. I would grant the rehearing to the limited extent of clarifying that both Mr. Tolchinsky and Consumer Capital, Inc. may intervene.

      . The appellees have filed no brief in this appeal.

      . See In re Tolchinsky, 99-1742 (La.9/3/99), 740 So.2d 109.

      . Following judgment, the money recovered on behalf of the plaintiffs was deposited into the registry of the court.

      . The judgment also addressed some alleged forged documents that Consumer Capital relied upon to assert rights to Tolchinsky's attorney’s fees for Leroy Treadwell and Consumer Capital’s right to intervene for Ivan Warner’s attorney’s fees. However, these issues are not before this court in the instant appeal.

      . Consumer Capital’s counsel explained at oral argument that although he requested to be present at the “trial,” he was denied attendance by the court since his client no longer had an interest in the disputed attorney's fees as a result of the trial court's granting of the exception on no right of action earlier that day.

      . The Order of 4 April 2002, which permitted the counsel for the plaintiffs to withdraw $194,491.47 from the registry of the court, contains this precise language. We know of no authority as a matter of law that permits a trial court to insert such language in an order under the circumstances such as those presented in this case.

      . Consumer Capital claims that the basis of the trial court’s ruling is that it cannot share an attorney’s fee because it is not a lawyer. That is not the reasoning given by the trial court as reflected in the record. In any event, we agree with Consumer Capital that its financial arrangement with Tolchinsky and other lawyers does not violate Rule 5.4 of the Rules of Professional Conduct.

      . La. C.C.P. art. 3544 requires only a $250.00 bond to secure a writ of attachment on a nonresident.

      . Our opinion should not be read as requiring Consumer Capital to secure a writ of attachment every time it intervenes in a lawsuit to assert its rights under an assignment of accounts receivable granted by an attorney. In the instant case, Tolchinksy himself intervened to assert the same rights he had assigned to his creditor; Consumer Capital claims that this is a unique situation, which has not previously happened. Due to Tol-chinsky's intervention, Consumer Capital could no longer "stand in his shoes,” but must attach its interest in those fees to prevent Tolehinsky from disposing of the property to which Consumer Capital is entitled. As Consumer Capital points out in its supplemental brief, most lawyers who have assigned their fees to it make no effort to protect their fee interests as they know that the debt to Consumer Capital far exceeds what they will recover. In those situations, Consumer Capital could intervene to protect, and subsequently, collect the fee interest, which is then applied to the debt. This opinion does not address those other cases.

      . We recognize that all money was withdrawn from the registry of the court. However, the attorneys involved in the "trial” of the intervention are experienced practitioners who obviously were aware that Consumer Capital's appellate rights were being violated. We express no opinion as to their liability to Consumer Capital for their acts in this case, for that issue is not before the court.