author: I,GASKINS, J.

text:
    John William WATKINS, Plaintiff-Appellant, v. Nancy Rose WATKINS, Defendant-Appellee.
    No. 37,906-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Donald K. Carroll, Oak Grove, and Dennis G. Stewart, Rayville, Counsel for Appellant.

      Wheeless, Shappley, Bailess & Rector by Kay S. Rector, Counsel for Appellee.
    Before STEWART, GASKINS and CARAWAY, JJ.
   I,GASKINS, J.

John Williams Watkins appeals the trial court judgment granting Nancy Rose Watkins’ exception of lack of personal jurisdiction and dismissing his suit for divorce under La. C.C. art. 103. For the reasons set forth below, the judgment of the trial court is reversed and the matter is remanded to the trial court for further proceedings.

FACTS

Mr. and Mrs. Watkins were married in February 1988 in Mississippi and established their matrimonial domicile in Mississippi. One child, Victoria, was born of the marriage on May 9,1989.

The parties physically separated in 2002; however, there are different accounts as to the exact date of that separation ranging from January 1, 2002, to February 4, 2002. On March 14, 2002, the Chancery Court of Warren County, Mississippi entered an order entitled “Agreed Temporary Order” in a matter entitled “Nancy R. Watkins v. John Williams Watkins ” and bearing docket No. 2002-066-GN. The order provided for temporary support to be paid by Mr. Watkins to Mrs. Watkins in the amount of $1,350.00 per month for herself and the minor child. Temporary custody of the child was awarded to Mrs. Watkins with reasonable visitation being granted to Mr. Watkins. Mrs. Watkins was also awarded the exclusive use and possession of the marital home while Mr. Watkins was ordered to pay the house note. Mr. Watkins was also directed to maintain health insurance |j>on both his wife and minor child and to pay the child’s noncov-ered medical expenses.

On April 3, 2002, Mr. Watkins filed a complaint for divorce in the Chancery Court of Warren County, Mississippi, in the matter entitled “John W. Watkins v. Nancy R. Watkins ” and bearing the same docket number as the suit in which the previously mentioned temporary order was issued. He sought a divorce on the basis of irreconcilable differences. He alleged that the parties separated on February 4, 2002; that he was seeking an equitable distribution of the marital assets; that the custody and care of the minor child should remain with Mrs. Watkins; and that he should be ordered to pay support for the maintenance of the minor child. He further asserted that he was a resident of Warren County and had been so for more than six months before filing.

On November 19, 2002, the Chancery Court of Warren County issued an “Order of Dismissal” signed pursuant to a motion made by Mr. Watkins and which dismissed his pending complaint for divorce. On that same date, Mr. Watkins filed a petition for divorce in Franklin Parish, Louisiana, declaring that he was a domiciliary of Franklin Parish, Louisiana, and requesting a divorce under La. C.C. art. 103. In the petition, Mr. Watkins identified Mrs. Watkins as being a nonresident and requested that an attorney be appointed on her behalf on whom service and citation could be made. The court appointed James M. Stephens, and citation and service were made upon him on November 21, 2002.

laOn December 5, 2002, Mrs. Watkins filed declinatory exceptions of lack of personal jurisdiction, insufficiency of citation and insufficiency of service of process. In January 2003, Mrs. Watkins filed her own complaint for divorce in Warren County, Mississippi, on the basis of Mr. Watkins’ alleged adultery and requesting custody of their minor child and support for both herself and the child. She asserted that they separated on or about January 25, 2002.

A hearing on Mrs. Watkins’ exceptions was held on February 21, 2003. Mr. Watkins testified that he had lived in Louisiana since January 1, 2002, that he intended to reside in Louisiana permanently, and that his residency was incorrectly stated in his Mississippi complaint for divorce. Admitted into evidence was a certified copy of his declaration of domicile which was recorded in the Franklin Parish conveyance records. In this declaration, he stated that he had been a resident and domiciliary of Franklin Parish continuously since January 1, 2002, and that Franklin Parish had been his only and principal establishment since that date. As evidence of his residency in Winnsboro, Louisiana, Mr. Watkins also introduced copies of pay records, a telephone bill, and a bank statement; the earliest of these was dated March 11, 2002. He testified that he was seeking only a divorce and that he was not requesting that the Louisiana court rule on any other issue, such as property rights, child custody and support, or spousal support. He stated that he was seeking a divorce at this time because he wished to remarry. Mr. Watkins’ oldest daughter, Stephanie, testified that her father l4was living in Louisiana on January 1, 2002. Furthermore, she testified that she lived with him- in Winnsboro from February 12 to April 20, 2002.

Mrs. Watkins testified that she and her minor child had no contacts with the state of Louisiana. She also testified that she filed for divorce in Mississippi because she was concerned about the possible adverse effects of a Louisiana divorce upon the Mississippi order of support. According to her, they had not yet obtained a divorce in Mississippi because they could not come to an agreement about the house and child support. At the conclusion of the hearing, the trial court took the matter under advisement.

On March 14, 2003, the trial court issued written reasons for judgment which granted Mrs. Watkins’ exception of lack of personal jurisdiction. In granting the exception, the trial court cited several factors. They included: (1) the parties’ prior- submission to the jurisdiction of a Mississippi court, where matters were still pending; (2) Mr. Watkins’ dismissal of his Mississippi action on the same day that he filed his Louisiana action; (3) Mr. Watkins’ contradictory assertions as to his domicile before the Mississippi and Louisiana courts; and (4) the court’s concern that exercising jurisdiction over the parties’ marital status would “in effect exercise personal jurisdiction over Nancy Watkins insofar as her rights are concerned in the Chancery Court of Warren County.” The trial court did not address the exceptions of insufficiency of citation or service of process. Nor did the trial court make any finding as to Mr. Watkins’ domicile.

|BOn May 23, 2003, the trial court signed a judgment granting the exception of lack of in personam jurisdiction and dismissing Mr. Watkins’ suit for divorce. This appeal followed.

DISCUSSION

On appeal, Mr. Watkins challenges the trial court’s refusal to exercise jurisdiction over his divorce proceedings on the basis that it lacks personal jurisdiction over the defendant.

Jurisdiction is defined in La. C.C.P. art. 1 as the court’s legal power and authority to hear an action and grant relief. In every civil case in Louisiana, the court must have not only subject matter jurisdiction, but also either (1) personal jurisdiction under La. C.C.P. art. 6, (2) property jurisdiction under La. C.C.P. art. 8 or 9, or (3) status jurisdiction under La. C.C.P. art. 10. Jurado v. Brashear, 2000-1306 (La.3/19/01), 782 So.2d 575. There is no dispute that the Fifth Judicial District Court in and for the Parish of Franklin has subject matter jurisdiction over divorce. There also appears to be no dispute that if one assumes that Mr. Watkins had, in fact, established his domicile in Louisiana prior to filing his petition for divorce, La. C.C.P. art. 10(7) provides status jurisdiction for the purposes of obtaining a divorce.

La. C.C.P. art. 10 states in pertinent part:

A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
(7) An action of divorce, if, at the time of filing, one or both of the spouses are domiciled in this state.
lfiB. For purposes of Subparagraphs (6) and (7) of Paragraph A of this Article, if a spouse has established and maintained a residence in a parish of this state for a period of six months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence.

This article is part and parcel of the legislature’s regulation in the area of domestic relations, an area that has long been regarded as a province of the states. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), overruled on other grounds by Shaffer v. Heitner, 433 U.S. 186, 212, 97 S.Ct. 2569, 2584, 53 L.Ed.2d 683 (1977); Williams v. State of North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). In Williams, supra, the United States Supreme Court specifically recognized the power of a state to alter the marital status of a spouse domiciled within its borders, even though the other spouse is a nonresident. 317 U.S. at 298-9, 63 S.Ct. 207. In footnote 2 of Jurado, supra, the Louisiana Supreme Court discussed this status jurisdiction as follows:

Personal jurisdiction refers to “the legal power and authority of a court to render a personal judgment against a party to an action or proceeding.” La.Code Civ. Proc. art. 6. Personal jurisdiction differs from status jurisdiction, which allows a Louisiana court to exercise jurisdiction over the “status” of persons who have sufficient connexity with the state and to adjudicate certain actions under certain circumstances, even though the court lacks personal jurisdiction over the defendant. The theory underlying status jurisdiction, provided in La.Code Civ. Proc. art. 10, is that a divorce action, for example, is more analogous to an action in rem that an action in personam. See 1 Robert C. Casad & William B. Rich-man, Jurisdiction in Civil Actions § 2-2[3](b)(3d ed.1998). A state must have the right to prescribe the rules governing the marital status of a spouse domiciled in this state, whether or not the other spouse is domiciled here. However, only the marital status is subject to adjudication under status jurisdiction, and ancillary claims for alimony or support require personal jurisdiction over the nonresident who owes the personal obligation.

| Nevertheless, the trial court in the present matter granted Mrs. Watkins’ exception of lack of in personam jurisdiction. There appears to be no dispute that if in fact in personam jurisdiction was required for the Louisiana court to entertain Mr. Watkins’ petition for divorce, then it had not obtained personal jurisdiction over Mrs. Watkins. The issue posed by this appeal, however, is whether under the particular circumstances of this case, personal jurisdiction was required.

The argument made by Mrs. Watkins is that by exercising jurisdiction over the marital status of the parties, the Louisiana court would in effect be exercising personal jurisdiction over her. This exercise of personal jurisdiction would allegedly result from the impact that a judgment of divorce rendered in Louisiana would have on the separate maintenance order rendered by the Chancery Court of Warren County, Mississippi. According to appellee’s brief, a judgment of divorce would terminate not only the marriage but also the separate maintenance order, citing Miss. Divorce, Alimony and Child Custody, N. Shelton Hand, Jr. § 2-13 and King v. King, 246 Miss. 798, 152 So.2d 889 (1963). Consequently, Mrs. Watkins argues that a Louisiana judgment of divorce would in effect be a personal judgment against her because it would affect her personal and property rights.

We disagree. It is correct that a Louisiana court must have in personam jurisdiction to render a personal judgment against a party to an action. La. C.C.P. art. 6. However, the court’s adjudication of the marital status of one of its domiciliaries with a nonresident does not amount to a Impersonal judgment” simply because of the possible effects of the judgment in another state. The courts of this state have not refused to give full faith and credit to divorce judgments of other states due to the repercussions they have on a Louisiana resident’s rights under this state’s support laws, and, consequently, we do not believe, absent the showing of some compelling reason, that Louisiana’s interest in being able to adjudicate the marital status of its own domiciliaries should be subjugated to the interests of Mississippi in enforcing its spousal support laws.

Similar arguments to the one made here by Mrs. Watkins have been refuted by the United States Supreme Court as being the price of our federal system. In Williams, supra, Justice Douglas cited Alaska Packers Ass’n v. Industrial Accident Comm., 294 U.S. 532, 55 S.Ct. 518, 79 L.Ed. 1044 (1935), in asserting that application of the “Full Faith and Credit” clause of the U.S. Constitution to state statutes requires that some accommodation of the conflicting interests between two states must be made. However, Douglas noted that there is no “authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state.” Williams, 317 U.S. at 296, 63 S.Ct. 207. Conversely, it is not axiomatic that simply because Mississippi would be compelled to give full faith and credit to a Louisiana divorce decree regarding the marital status of Mrs. Watkins, that it would be compelled to recognize the divorce decree as to her right to support under Mississippi law.

| flFurthermore, our review of Mississippi law does not support the assertion that the right to pursue spousal support would be precluded by the rendering of a judgment of divorce in a sister state. In Weiss v. Weiss, 579 So.2d 539 (Miss.1991), the Supreme Court of Mississippi addressed the issue of whether a Mississippi state court had jurisdiction to determine alimony where the parties had previously been granted a foreign divorce. In concluding that jurisdiction was available, the court stated that under Mississippi law the litigation of the divorce and of alimony are divisible,and that rendition of the divorce in a foreign jurisdiction does not affect that divisibility. Therefore, while a judgment of divorce may or may not automatically terminate the “separate maintenance” order currently in effect, it does not appear that Mrs. Watkins will be precluded by Mississippi law from pursuing an alimony claim in the courts of that state in the event a judgment of divorce is entered by a Louisiana court. See Weiss, supra.

Lastly, we find Mrs. Watkins’ reliance on this court’s opinion in Prine v. Prine, 28,935 (La.App.2d Cir.1/22/97), 687 So.2d 637, to be misplaced. In Prine, supra, we dealt with the issue of whether a Louisiana court had jurisdiction to adjudicate a disavowal of paternity action of a minor child born during the marriage between the presumed father, a Louisiana domiciliary, and the mother, a nonresident. Neither the mother | innor the child had any connection with Louisiana. This court in effect concluded that while status jurisdiction over such an action was conferred under La. C.C.P. art. 10(8), a judgment of disavowal would not only stigmatize the child, but also terminate the child’s substantive rights. Thus, this court considered a judgment of disavowal to be a “personal judgment” requiring personal jurisdiction under La. C.C.P. art. 6 because of the effect that judgment regarding the child’s status would have on the rights of the child, as well as the stigma of bastardizing the child. Our harmonization of Louisiana law in Prine, supra, does not impose on our district courts the untenable and impossible obligation of harmonizing Louisiana law with that of every other jurisdiction in our federal system on a case-by-case basis.

CONCLUSION

Accordingly, we hereby reverse the trial court’s judgment granting Mrs. Watkins’ exception of lack of in personam jurisdiction and dismissing Mr. Watkins’ action for divorce. We remand to the trial court for further proceedings. Costs of this appeal are assessed to appellee.

REVERSED AND REMANDED.

      . While the record of the instant suit does not contain the pleadings leading to the issuance of the Mississippi order, the caption of that suit indicates that it was initiated by Mrs. Watkins.

      . Specifically, Mr. Watkins was directed to pay $675.00 on the 1st and 15th of each . month.

      . See Lewis v. Lewis, 404 So.2d 1230 (La. 1981); Hampson v. Hampson, 271 So.2d 898 (La.App. 2d Cir.1972); and Starkey v. Starkey, 209 So.2d 593 (La.App. 1st Cir.1967).

      . Our review of Mississippi jurisprudence and statutory law has not revealed any authority for the proposition that “separate maintenance” is automatically terminated upon the rendering of a divorce, regardless of the jurisdiction in which the divorce is rendered. We also note that the judgment of separate maintenance issued by the Mississippi court does not distinguish an amount due for maintenance of Mrs. Watkins from an amount due for maintenance óf the minor child. Therefore, even assuming that a “separate maintenance award” for a spouse terminates upon divorce, Mississippi law is clear that an obligation of child support continues until emancipation of the child. § 93-5-23 of the Mississippi Code.


source: Caselaw Access Project

author: JjMOORE, J.

license: Public Domain

text:
    Charles W. REDDEN and Red Bear Broadcasting Corp., Plaintiff-Appellees, v. Paul H. RIPLEY, Jr., Defendant-Appellant.
    No. 37,905-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.
    Rehearing Denied Jan. 22, 2004.

      George E. Harp, Shreveport, for Appellant.
    Guerriero & Guerriero by Joe D. Guer-riero, Monroe, for Appellees.
    Before DREW, MOORE and LOLLEY, JJ.
   JjMOORE, J.

The defendant, Paul H. Ripley Jr., appeals a summary judgment that awarded damages of $30,000 and attorney fees of $2,000 to the plaintiffs, Charles W. Redden and Red Bear Broadcasting Corp., arising from a dishonored check for $15,000 that Ripley made to Redden. For the reasons expressed, we affirm in part and reverse in part.

Procedural Background

Red Bear operated a radio station. Through its agent, Redden, Red Bear leased air time to Liberty Works Radio Network, an unincorporated association organized under the laws of Maryland. Liberty Works’ sole fiduciary was John B. Kotmair Jr. By September 2001, Liberty Works had fallen seven months behind on its lease and was in arrears some $24,500.

On September 29, 2001, Ripley, a friend of Kotmair’s, issued a check payable to the order of Redden, drawn on an account at Prince George’s Federal Savings Bank of Upper Marlboro, Maryland. The drawee bank dishonored the check on October 5, marking it “Uncollected Funds.” On September 17, 2002, Redden’s counsel sent the following letter to Ripley by certified mail to the address handwritten on the check:

Dear Mr. Ripley:
You are hereby notified that a check numbered 1001, issued by you on September 29, 2001, drawn upon Prince George’s Federal Savings Bank, Upper Marlboro, Maryland, and payable to Charles W. Redden, has been dishonored. Pursuant to Louisiana Law, you have fifteen days from receipt of this notice to tender payment in full of the amount of the check plus a service change of twenty-five dollars or five percent of the amount of the check, whichever is greater, the total amount due being $15,750.00. Unless this amount is paid in full within the fifteen-working-day period, the holder of the check may file a civil action against you for two times the amount of the check or one hundred dollars, whichever is ^greater, plus any court costs and reasonable attorney fees incurred by the payee in taking the action.
A copy of that check is attached. Please give this matter your prompt attention.

The letter was returned unclaimed. Redden and Red Bear filed the instant suit against Ripley, seeking damages in twice the amount of the check plus attorney fees pursuant to La. R.S. 9:2782. Ripley answered, admitting that he had issued the check for $15,000 and that it had been dishonored. However, he alleged that Redden was not entitled to damages under R.S. 9:2782 because the check was dishonored for “uncollected funds” rather than “nonsufficient funds” and because the demand letter did not advise him that payment was due within 15 working days, both requirements of the statute.

Redden filed the instant motion for summary judgment, attaching a copy of the dishonored check and the affidavit of the attorney who drafted and mailed the demand letter. Ripley opposed the motion. By affidavit, he stated that he had no connection with Liberty Works and had written the check to Redden only as a favor to his friend, Kotmair. He further stated that the check was dishonored because the drawee bank had failed to timely process a cashier’s cheek for $125,000 which he had deposited to the account one day before writing the dishonored check. Kotmair confirmed by affidavit that Redden had no connection to Liberty Works and had written the check as a favor to Kotmair.

After a hearing on February 25, 2003, the district court granted the plaintiffs’ motion for summary judgment and signed a judgment awarding |3them $15,000. Notice of judgment was mailed that same day. Two days later, on February 27, the court issued a rule to show cause why an amended judgment should not be rendered, with a hearing set for March 12. After the hearing, the court rendered an amended judgment awarding damages of $15,000 for the face value of the check and $15,000 in statutory penalties, plus attorney fees to be determined pursuant to further findings.

On March 20, Redden filed a “motion for new trial/rehearing,” seeking attorney fees in accordance with his attorney’s affidavit. On that date and without a hearing, the court rendered “judgment on rehearing/new trial,” granting summary judgment in favor of Redden and Red Bear for $15,000 in damages, $15,000 in statutory penalties, and $2,000 in attorney fees. Ripley has appealed devolutively.

Applicable Law

The recovery of damages and attorney fees for nonsufficient fund checks is regulated by La. R.S. 9:2782, which provides in part:

A. Whenever any drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check within fifteen working days after receipt of written demand for payment thereof delivered by certified or registered mail, the drawer shall be liable to the payee or a person subrogated to the rights of the payee for damages of twice the amount so owing, but in no case less than one hundred dollars plus attorney fees and court costs.
:¡: * *
C. (1) Before any recovery under Subsection A of this Section may be claimed, a written demand in substantially the |4form which follows shall be sent by certified or registered mail to the drawer of the check at the address shown on the instrument:
“You are hereby notified that a check numbered _, issued by you on ___ (date), drawn upon _, (name of bank), and payable to_, has been dishonored. Pursuant to Louisiana law, you have fifteen working days from receipt of this notice to tender payment in full of the amount of the check plus a service charge of twenty-five dollars or five percent, whichever is greater, the total amount due being __ Unless this amount is paid in full within the fifteen-working-day period, the holder of the check may file a civil action against you for two times the amount of the check or one hundred dollars, whichever is greater, plus any court costs and reasonable attorney fees incurred by the payee in taking the.action.”
(2) Notice mailed by certified or registered mail evidenced by return receipt to the address printed on the check or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making the check.
(3) It shall be prima facie evidence that the drawer knew that the instrument would not be honored if notice mailed by certified or registered mail is returned to the sender when such notice is mailed within a reasonable time of dishonor to the address printed on the instrument or given by the drawer at the time of issuance of the check.

Because this statute provides for penalty damages and attorney fees, it is penal in nature and must be strictly construed. Sanders v. Mitchell, 2001-1461 (La.App. 3 Cir. 3/6/02), 810 So.2d 1276; Sangid v. Fleming, 530 So.2d 1231 (La.App. 2 Cir.1988).

The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. Sanders v. Sanders, 33,865 (La.App. 2 Cir. 9/27/00), 768 So.2d 739. The procedure is designed to secure the just, speedy and inexpensive determination of every action in which it is allowed; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. The motion should be granted only if the pléadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Appellate review of summary judgments is de novo. Ross v. Conoco Inc., 2002-0299 (La.10/15/02), 828 So.2d 546.

Discussion: Payee of the Check

By his first assignment Ripley urges the district court erred in rendering summary judgment in favor of Red Bear because Red Bear was not the payee of the dishonored check. Ripley contends thatithis created a genuine issue of material fact, precluding summary judgment. We agree.

The statute makes the drawer of a dishonored check liable to “the payee or a person subrogated to the rights of the payee” for statutory damages and attorney fees. Ripley’s check was made payable to the order of Charles W. Redden only. There is no summary judgment evidence that Red Bear was subrogated to Redden’s rights, or a holder of the check or otherwise statutorily entitled to enforce it. La. R.S. 10:3-301. On this record, genuine issues of material fact remain regarding whether Red Bear is entitled to enforce the check under this statute.

Red Bear is not entitled to summary judgment. The judgment in its favor will be reversed.

Material Defenses to the Check

By his second and third assignments Ripley urges that other genuine issues existed, precluding summary judgment. Specifically, he contends Rthat he made the check payable to Redden instead of to Red Bear, at Redden’s instruction; that Liberty Works did not owe anything to Redden personally; that Ripley could have stopped payment on the check pursuant to La. R.S. 10:4-403; and that he received no consideration for the check. Ripley submits that all of these issues are material defenses to the check.

The summary judgment evidence does not support these allegations. Ripley offered nothing to show that Redden instructed him to make the check out to Redden personally instead of to Red Bear. Mr. Kotmair’s affidavit contradicts the second allegation, by admitting that Liberty Works entered a lease contract “with Chuck Redden/Red Bear Broadcasting.” Moreover, there is nothing to show that Ripley attempted to stop payment on the check.

As for Ripley’s final claim, lack of consideration, we agree that in order to be a holder in due course, Redden must have taken the instrument for value. La. R.S. 10:3-302(a)(2)(i). The law is also clear, however, that an instrument is issued for value if it is in payment of, or as security for, an antecedent claim against any person, whether or not the claim is due. La. R.S. 10:3-303(a)(3). Mr. Kotmair’s affidavit establishes that Ripley wrote the check to cover past due rent, not to pay for additional air time or other services. Since Ripley gave the check to cover an existing debt of Liberty Works, it was supported by valid consideration. Progressive State Bank & Tr. Co. v. Stutts, 516 So.2d 1207 (La.App. 2 Cir.1987); Graham v. Ezell, 286 So.2d 158 (La.App. 1 Cir.1973). We perceive no genuine issue as to failure of consideration.

|7These assignments of error present no genuine issue of material fact that would preclude Redden from recovering the face value of the check. The judgment will be affirmed in this respect.

Penalty Damages

By his fourth and fifth assignments Ripley urges the district court erred in awarding twice the face value of the dishonored check because Redden failed to comply with the strict requirements of the statute. Specifically, he contends the check was returned not for “nonsufficient funds,” as required by R.S. 9:2782, but for “uncollected funds.” Because “uncollected funds” indicated a chargeback on his account, he argues that he should not be subjected to a statutory penalty reserved for drawers who knew that their checks would be dishonored. We agree.

The statute grants a remedy to the payee of a check “dishonored for nonsufficient funds.” A dishonored check is one for which payment has been refused by the drawee bank. The reason for refusal of payment can vary from insufficient funds in the account to a stop order placed on the check by the drawer.

The issue is whether the statute, providing penalty damages to recover a check rejected for “nonsufficient funds,” can also be used to recover penalty damages for a check rejected for “uncollected funds.” These terms are not defined in the statute, but their meaning is self-evident. “Nonsufficient funds” means the drawer of the account has failed to | ^maintain sufficient funds in the account for payment on the check being dishonored. “Uncollected funds” means the drawer has deposited funds in the account, but the drawee bank has not yet collected them at the time the dishonored check was presented for payment.

We are aware of only one other case that addressed whether the remedy of R.S. 9:2782 applies to checks dishonored for express reasons other than nonsufficient funds. In TeleRecovery of La. Inc. v. Rayborn, 2001-0358 (La.App. 1 Cir. 3/28/02), 814 So.2d 688, the plaintiff sought recovery for three dishonored checks (actually gambling markers) issued by the defendant to a casino. The drawee bank had refused payment with the notation, “Account Closed.” The court noted that while the first sentence of the statute uses the phrase, “dishonored for nonsufficient funds,” the sample letter provided in Subsection C refers to “dishonored” checks; the court construed this as evidence that R.S. 9:2782 is a “bad check” statute, and not just an “insufficient funds” statute. The court also reasoned that once the account was closed, there are indisputably no funds with which to pay any check presented. A check dishonored for “account closed” could just as easily be marked “NSF.” The court affirmed the award of penalty damages.

The facts of the instant case materially differ from those in TeleRecovery,. supra. Ripley did not close his account. We agree that the closing of an account by the drawer may be the equivalent of maintaining | {¡insufficient funds to cover checks drawn on the account. The same cannot be said of the drawer whose check cannot be paid for “uncollected funds.”

The statute, which must be strictly construed, seeks to discourage the practice of writing checks on bank accounts when the “drawer knew that the instrument would not be honored.” R.S. 9:2782 C(3). Allowing the statute to apply to checks dishonored for uncollected funds would not serve the purpose of the statute. Unlike the drawer who does not maintain sufficient funds in his account to cover checks drawn on the account, the drawer of a check dishonored for uncollected funds has deposited sufficient funds, but the drawee bank may not have collected them yet. We do not deny that this situation could conceivably result from some manipulation of the system, but we believe that the mere dishonor of a check for uncollected funds is not, in and of itself, evidence of any wrongful or dishonest conduct which should subject the drawer to the harsh penalties of R.S. 9:2782.

Furthermore, we are not persuaded that the omission in the statute’s sample letter of any reference to the conditional phrase, “for nonsufficient funds,” indicates a legislative intent to expand the sweep of the statute to any check dishonored for any reason. The opening paragraph very clearly creates special remedies for the payee when the “drawer of a check dishonored for nonsufficient funds fails to pay the obligation created by the check.” R.S. 9:2782 A. It is axiomatic that a payee who undertakes the preparation of a demand letter like the one in Subsection C must fall into the category of persons defined in Subsection A — payee of a check which has been dishonored for nonsufficient funds.

|inFor these reasons, Redden has not shown, as a matter of law, that he is entitled to the penalty damages of $15,000 and attorney fees of $2,000 that he received pursuant to R.S. 9:2782. These portions of the summary judgment will therefore be reversed.

Conclusion

For the reasons expressed, we affirm the summary judgment insofar as it awarded Redden the face value of the check, $15,000. We reverse the portion of the judgment that awarded $15,000 in penalty damages, $2,000 in attorney fees, and the interest thereon. We also reverse the portion of the judgment that awarded anything to Red Bear Broadcasting Corp. Appellate costs are assessed equally between the parties.

AFFIRMED IN PART, REVERSED IN PART.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE, and LOLLEY, JJ.

Rehearing denied.

      . The pleading, if any, that provoked this rule to show cause is not part of the record. Amendment of judgment is allowed only to alter the phraseology, but not the substance, of the judgment, or to correct errors of calculation. La. C.C.P. art. 1951. The amended judgment of March 12 would appear to be null and void. See, ITT Residential Capital Corp. v. Cheuk, 94-744 (La.App. 5 Cir. 5/30/95), 656 So.2d 747, writ denied, 95-1634 (La.10/6/95), 661 So.2d 465. In light of our ultimate disposition of the case, however, we pretermit any further discussion of this irregularity.

      . He also contends the demand letter was deficient for advising that he had 15 days, instead of 15 working days, to tender payment of the check, and that it was not sent within a reasonable time of dishonor to constitute pri-ma facie evidence that the check would be dishonored. Because we find merit in his principal argument, we pretermit consideration of these alleged deficiencies.

      . Other states have drawn the same distinction. Statewide Ins. Corp. v. Dewar, 143 Ariz. 553, 694 P.2d 1167 (1984); Sinclair v. State, 21 Md.App. 477, 319 A.2d 549 (1974); Elliott
        v. Snyder, 246 S.C. 186, 143 S.E.2d 374 (1965).


author: hMOORE, J.

text:
    Carl A. PRITCHARD, Plaintiff-Appellee, v. AMERICAN FREIGHTWAYS CORP., et al, Defendant-Appellant.
    No. 37,962-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 2003.

      Galloway, Johnson, Tompkins, Burr & Smith, By: John E. Galloway, New Orleans, Kimberly G. Anderson, for Appellant.
    Sentell Law Firm, L.L.C., By: C. Sher-burne Sentell, III, Minden, for Appellee.
    Paul Kitchens, Minden, for Intervenor Mister Twister, L.L.C.
    Musa Rahman, Baton Rouge, for Inter-venor LWCC.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   hMOORE, J.

This is an appeal from a partial summary judgment granted in favor of the plaintiff, Carl A. Pritchard, and against the defendants, American Freightways, Inc. (now FedEx Freight East, Inc.) et al. The trial court held that the defendants alone were responsible for the accident that caused the plaintiffs injuries. We affirm.

Facts

On April 5, 2000, the plaintiff was injured when he leaped from a forklift he was operating inside the trailer portion of a tractor-trailer rig owned by American Freightways, Inc. The rig was parked at the loading dock of Mister Twister of Min-den, Louisiana, plaintiffs place of employment. As plaintiff was operating the forklift, the trailer began to roll away from the loading dock, and the forklift proceeded to roll out of the back end of the trailer. The forklift fell between the trailer and the dock. Plaintiffs injuries were sustained when he leaped off the forklift out of the trailer and hit the concrete.

The driver of the American Freightways tractor-trailer rig, Wayne Harris, was present during the incident.- He admitted in his deposition that he was rushing, and he inadvertently failed to lock the air brakes on the tractor-trailer rig. He was on the back of the trailer when it began to roll and travel away from' the dock. He jumped off the trailer and rah to catch it.

After, initiating the instant suit, plaintiff filed a motion for a partial summary judgment on the issue of liability alone. . Plaintiff contends that defendants were solely at fault due to Wayne Harris’s failure to lock the brakes on the trailer, which allowed it to start rolling away from the dock hand resulted in the accident. In support of his motion, plaintiff submitted Wayne Harris’s deposition wherein he admitted that he failed to set the brakes on the rig. Plaintiff also" submitted his own affidavit.

Defendants opposed the motion contending that there remained issues of material fact regarding causation. Specifically, they argued that the conflicting deposition testimony of Harris and Pritchard generated disputed factual issues regarding the cause of the accident, namely: that Wayne Harris testified that the plaintiff drove the forklift into the trailer too fast; that there was a conflict between plaintiffs testimony that Harris told him he had asked the company to fix the' brakes because'they were hot working and Harris’s deposition testimony; that there, is a factual dispute over who set the chock under the wheel and if it was properly set; that there is a factual dispute whether the plaintiff was driving the forklift into the trailer or backing the forklift out of the trailer when it started moving; and, finally that there is a dispute regarding whether Mister Twister implemented procedures for loading and unloading trailers.

The trial court granted the motion without written reasons. However, the court ruled on the motion after oral argument and gave oral reasons for judgment. Regarding the alleged factual issues, the court noted that, had Harris locked the brakes, which he admitted he should have done, the tractor-trailer rig would not have began rolling away from the dock, irrespective of the other issues raised by defendant. Accordingly, the court found that defendants were 100% at fault and granted judgment for the plaintiff.

| ¡¡Defendants filed this appeal alleging that the trial court erred in granting the plaintiffs motion for partial summary judgment in light of the conflicting testimony. Defendants also argue that the trial court erroneously made credibility determinations of material issues of fact in deciding the motion for summary judgment.

Plaintiff contends that the issues raised by the defendants do not constitute “material facts” that would affect the outcome of the case.

Discussion

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191.

On a motion for summary judgment, a trial court must initially determine whether the moving party’s documents resolve all material factual issues. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.07/05/94); 639 So.2d 730. “To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact.” Id. at 752. In considering whether a genuine issue exists, courts 14cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Brittain v. Family Care Services, Inc., 34,787 (La.App. 2 Cir. 06/20/01), 801 So.2d 457. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226.

A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3 Cir. 1991), writs denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La. 1993).

Louisiana applies a duty-risk analysis to determine whether liability exists under the particular facts presented. The plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of the protection afforded by the duty breached. Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762; Syrie v. Schilhab, 96-1027 (La.05/20/97), 693 So.2d 1173. The threshold issue is, of course, the existence |fiof a duty. Posecai, supra, and citations therein. Whether a duty is owed is a question of law. Peterson v. Gibraltar Sav. & Loan, 98-1601 (La.05/18/99), 733 So.2d 1198.

Plaintiffs motion is based solely on the allegation that the defendants are 100% liable for the accident based upon Wayne Harris’s breach of his duty to lock the air brakes of the tractor-trailer rig. Defendants oppose the motion on grounds that Harris’s failure to lock the brakes was not the cause, or, in any event, not the sole cause of the accident, and that there are material issues of fact precluding a finding that Harris’s failure to lock the brakes caused the accident.

Defendants argue essentially the same points they raised in opposition to the motion at district court. They contend that a question of the cause of the accident is raised by Pritchard’s statement that he set a chock behind the wheel and it came loose, and whether the accident was caused by Mister Twister’s failure to implement a policy of loading and unloading trailers.

After reviewing the papers submit-' ted in support of and against the motion for partial summary judgment, we find that the arguments and supporting documents submitted by defendants are not sufficient to defeat the plaintiffs motion. Defendants arguments that these papers show there are causal questions regarding the accident and that the trial court must have made credibility determinations to rule on the motion are insufficient to generate a material issue regarding fault. As noted by the trial court, irrespective of who placed a chock under the wheel, or how fast the plaintiff was operating the forklift, or whether Mr. Twister implemented a policy | ^regarding loading or unloading trailers, this accident would not have occurred if Wayne Harris had not failed to lock the brakes of the tractor-trailer rig. Since Harris admitted that he failed to lock the brakes, there was no credibility determination on this point.

In any accident, there are numerous contributing events converging in the chain of causation. Some causes are the result of human agency, while others are the result of mere chance, such as a pedestrian who just happens to be walking across an intersection when a non-attentive motorist runs a stop sign. Not every cause-in-fact is a proximate or legal cause of an accident. Stated another way, causation and fault, the latter being a legal determination of responsibility, are not identical. Imposing responsibility for one or more of the causes in an accident involves a policy decision in our law generally based upon a determination of who was in the best position to avoid the accident. This policy has traditionally been guided by the so-called “reasonable man” standard.

In this case, Wayne Harris was in the best position to avoid the accident. Locking the brakes on the tractor-trailer rig would have prevented the accident, and a reasonably prudent operator would have locked the brakes of the rig. Harris’s breach of this duty was a cause-in-fact of the accident. The trial court in this case did not err when it concluded: “No reasonable people could come to any conclusion other than the operator of the tractor-trailer rig was 100% at fault and no one else was at fault.”

| 7Conclusion

For the foregoing reasons, the judgment of the trial court granting the plaintiffs motion for partial summary judgment on the issue of liability is affirmed. Costs of this appeal are charged to the defendants.

AFFIRMED.


author: _[iPETERS, J.

text:
    Fredy RIVERA-SANTOS, v. Ada Elba Melendez RIVERA-SANTOS.
    No. CA 2003-667.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Tony C. Tillman, Leesville, LA, for Plaintiff/Appellant: Fredy Rivera-Santos.
    Scott Westerchil, Leesville, LA, for Defendant/Appellee: Ada Elba Melendez Rivera-Santos.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   _[iPETERS, J.

The issue before us concerns the determination of a divorced wife’s interest in her former husband’s retirement benefits, insofar as they are attributable to his employment during the existence of the community. The former husband, Fredy Rivera-Santos, appeals the trial court’s determination that the benefits should be partitioned according to the formula set forth in Sims v. Sims, 358 So.2d 919 (La. 1978). For the following reasons, we affirm the trial court’s judgment awarding Ms. Rivera-Santos a portion of Mr. Rivera-Santos’ retirement benefits, but amend the judgment to partition the said benefits according-to the supreme court’s instructions found- in Hare v. Hodgins, 586 So.2d 118 (La.1991).

DISCUSSION OF THE RECORD

Fredy Rivera-Santos and Ada Elba Rivera-Santos were married on June 3, 1981. Mr. Rivera-Santos began serving in the United States Army on June 28,1981, and, with the exception of the period of time between July 27, 1987, and January 28, 1988, he remained on active duty through August 16, 2002, the date of trial on the issues now before this court. On March 24,1993, Mr. Rivera-Santos filed a petition for divorce, and the parties were divorced by judicial decree on July 27, 1993. Thus, he acquired military retirement benefits during the existence of the community of acquets and gains, as well as after the community dissolved.

On March 17, 2001, Ms. Rivera-Santos filed a rule to show cause, seeking recognition of her interest in her former husband’s military retirement benefits. In response, Mr. Rivera-Santos filed a rule to show cause, requesting that the trial court limit his former wife’s interest in the retirement benefits based on his rank at the time of the divorce as opposed to his rank when he ultimately retires. By a judgment rendered August 16, 2002,- and signed February 14, 2003, the trial court granted | judgment in favor of Ms. Rivera-Santos. The February 14, 2003 judgment reads in pertinent part as follows:

IT IS FURTHER ORDERED, ADJUDGED and DECREED that ADA ELBA MELENDEZ RIVERA-SANTOS, NOW MELENDEZ* has an interest in the military retirement benefits accruing to FREDY RIVERA-SANTOS as a result of his service in the United States Armed Forces, when and if they vest, as her sole and separate property, equal to the following formula: One half, multiplied by a percentage in which the numerator is 140 (months of service during marriage) and the denominator is the total months of service creditable for retirement at the time of retirement, multiplied by the military retired pay payable to a member retiring at the rank of W-2 who would have retired with twenty years service in June 2001, together with all increases that did or would have occurred, other than increases attributable to -elevation in rank or services rendered after said date, plus a like percentage of all cost of living adjustment increases that accrue to said military retirement benefits hereafter. For the purpose of interpreting this Court’s intention in making the division set forth in this Order, “military retirement” means disposable retired pay as defined in 10 U.S.C. § 1408. All sums payable to ADA ELBA MELENDEZ RIVERA-SANTOS, NOW MELENDEZ as a portion of military retirement shall be payable from FREDY RIVERA-SANTOS’ disposable retired or retainer pay to the extent that it is so restricted by law.

In his sole assignment of error, Mr. Rivera-Santos contends that the trial court erred in its calculation of the amount of his retirement benefits due his former wife.

OPINION

The trial court applied the formula enunciated by the supreme court in Sims v. Sims, 358 So.2d 919 (La.1978), to reach its decision concerning the division of the retirement benefits. In Sims, the supreme court established the division formula for pension or retirement benefits as follows:

Portion of pension attributable to service during marriage x % x lump sum or annuity
Portion of pension attributable to total service

Generally, the result of this mathematical calculation represents the amount due |3the former spouse. However, in Hare v. Hodgins, 586 So.2d 118, 123 (La.1991), the supreme court recognized that the Sims formula is not applicable to all pension or retirement division situations. In Hare, the supreme court stated:

The general rules for the partition of community property, however, do not address all of the problematic ramifications of classifying, valuating and distributing each spouse’s interest in pension benefits which have been earned by one spouse partly during the marriage and partly before or after. In such cases, the pension benefits are composed of the separate property interest of the employee spouse in addition to the community interest. Furthermore, there is no custom from which rules can be derived for each particular situation. Accordingly, in the present case and others a court is bound to proceed and decide equitably to some extent, making resort to justice, reason and prevailing usages.
[Tjhere will be unusual cases in which a substantial part of the increased retirement benefits earned by the employee spouse after divorce will not result from a foundation provided by prior community earnings. Fondi v. Fondi, supra [106 Nev. 856, 802 P.2d 1264 (1990)]; Gemma v. Gemma, supra [105 Nev. 458, 778 P.2d 429 (1989)]. In such cases, the partitioning court should select a more equitable method or modify the community or marital fraction rule to attribute that part of the post-divorce increase to the employee spouse separately. Although the emerging jurisprudential precepts are not yet well defined, some factors may be identified as helpful guidelines in determining when such a modification is required.

Id. at 127-128.

The supreme court in Hare established a three-part test for the partitioning court to apply in determining whether or not a substantial post-community increase is due purely to personal merit. “First, the increment must represent a fairly substantial increase in the employee spouse’s post-community earnings. Second, the increment must not be due to a non-personal factor, such as cost-of-living raises, etc. Third, the increment must be attributable to the employee spouse’s meritorious individual efforts or achievements.” Id. The employee spouse has the burden of proof, and any doubt should be resolved in favor of the community. Id. Thus, Hare recognized that in the interest of equality and equity, a trial court has great discretion l4in dividing community-owned pension benefits. “[If] the trial court agree[s] that the pension was increased due to the employee spouse’s personal effort or achievement, benefits may then be reallocated using the highest income the employee spouse would have received under the normal course of events, including ordinary promotions and cost increases and gains due to non-personal factors.” Id. at 128.

In its oral reasons for judgment rendered at the conclusion of the evidence presentation, the trial court recognized the Hare exception and opined that “[the plaintiff] proved he had some substantial increases in salary post community.” The trial court also stated that with regard to the second requirement set forth in Hare, Mr. Rivera-Santos had met that burden as well. Concerning the third requirement, the trial court concluded that “the increment must be attributable to the employee/spouse’s meritorious individual efforts or achievement ... [and in this case] that’s in part what happened.” In summary, the trial court stated that “you could argue that the move from NCO to Warrant Officer is not a normal progression of benefits or promotions, and I would acknowledge that it is not, [and] that it would probably qualify if you take all of the NCO’s in the Army and look at the percentage that moved from NCO to Warrant Officer you would have to classify that as an extraordinary move.” (Emphasis added.)

Despite its conclusion that Mr. Rivera-Santos satisfied all three elements required in an analysis under Hare, the trial court then concluded that it was “not convinced that [the Hare exception] applies to the case of military benefits.” In written reasons for judgment executed on December 6, 2002, the trial court concluded that “Sims [was] the controlling law in Louisiana [with] respect to the entitlement to a percentage of the spouse’s retirement” and “[t]hat formula is the number of years | sof military service during the marriage divided by the total number of years of military service, divided by two.” Mr. Rivera-Santos asserts on appeal that the trial court erred in this conclusion. We agree.

We find that the trial court erred as a matter of law when it found that the Hare exception did not apply in the case of military benefits. After reviewing the law and jurisprudence dealing with community-owned retirement benefits, we find nothing to suggest that the Hare exception would not be applicable in a case involving military benefits. “Where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the reviewing court should make its own independent de novo review and assessment of the record.” Campo v. Correa, 01-2707, p. 10 (La.2002), 828 So.2d 502, 510 (citing Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 746-47).

In this case, the evidence presented at trial established that in 1993, Mr. Rivera-Santos held the rank of Staff Sergeant, E-6, and had an annual income of $19,587.60. In August of 1993, the month after his divorce, he received a base pay of $1,623.00 for that month. By 2001, he held the rank of Warrant Officer, W-2, and had an annual income of $39,637.40. By June of 2002, two months before the trial on the rules, his monthly base pay was $3,559.80. Thus, from the time of his divorce until the time of trial, Mr. Rivera-Santos had received a 119% increase in base pay. Mr. Rivera-Santos clearly established the first prong of the three-part test of Hare,. ie., that he had a “fairly substantial increase” in his post-community earnings.

Concerning the second and third prongs of the three-part test, that this substantial increase was due to something else, ie., “a non-personal factor, not costjof-living6 raises, etc.,” Mr. Rivera-Santos introduced evidence that he was not qualified to become a Warrant Officer prior to. his divorce. Additionally, Mr.. Rivera-Santos introduced copies of the following documents in an effort to meet his burden of proving that numerous personal steps and significant additional responsibilities advanced his career subsequent to the dissolution of the marriage: paperwork requesting a waiver and consideration to become a Warrant Officer, Army discharge papers, Warrant Officer commission, Warrant Officer orders, Warrant Officer School diploma, Airborne and other specialized training certificates, evaluation reports, letters of recommendation from officers, and numerous awards and commendations for performance and meritorious service. These documents, together with his testimony, established that Mr. Rivera-Santos actively sought out the opportunity to become a Warrant Officer and had to obtain a waiver because initially he did not have the requirements necessary to apply. After becoming a candidate for Warrant Officer, he attended special training schools with the full understanding that his “failure to comply with active duty orders [or pass the school] would result in cancellation of his appointment.” He earned his Warrant Officer promotion and underwent additional training not otherwise required. Because, of his efforts, he earned awards for his personal performance and .received evaluations which requested that the military “promote [him] ahead of contemporaries.” More importantly, he earned, and continues, to earn, a significantly higher-paying position, while remaining within the coverage of the. military .benefits.

Chief Warrant Officer Earnest Lee Wilson, an active duty soldier- stationed at Fort Polk, Louisiana, testified for Mr. Rivera-Santos to explain, the difference between a-.Warrant Officer and a non-commissioned officer. Chief Warrant Officer 17Wilson is a twenty-nine-year military veteran .who had advanced in his • military career through the enlisted and non-commissioned officer ranks and, at the time of trial, had attained the rank of Warrant Officer, W^. The trial court recognized him as an expert “in the area of property accounting technicians and the general process in which Warrant- Officers may seek to be promoted and the general duties that Warrant Officers are called on to perform within their .speciality.”

Chief Warrant Officer Wilson testified that Warrant Officers seeking promotion to the next level are required to submit themselves to a review board comprised of senior .Warrant Officers who review the applicant’s record and make a professional assessment of his ability to perform at the next level. According to Chief Warrant Officer Wilson, as an individual progresses through the promotion system, there exist fewer slots to be filled and the-process becomes increasingly more competitive. In his opinion, personal performance and individual effort and achievement are more important in the process than is longevity. As such, this testimony corroborated with other evidence showed that Mr. Rivera-Santos successfully proved the third prong of the Hare test, that the “increment [was] attributable to the employee spouse’s meritorious individual efforts or achievements.”

Ms. Rivera-Santos asserts in her brief that the trial court erred in allowing Chief Warrant Officer Wilson to testify as an expert. She asserts that Chief Warrant Officer Wilson did not provide the trial court with his educational background; that he never sat on a promotion board and, as such, never was involved in the decision-making process; and that he never had been recognized as an expert in the past.

Louisiana Code of Evidence Article 702 provides in part that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may | ¡¡testify thereto in the form of an opinion or otherwise.” This court in Abshire v. Wilkenson, 01-0075, p. 4 (La.App. 3 Cir. 5/30/01), 787 So.2d 1158, 1162, recognized the discretion afforded the trial court in cases involving expert witnesses as follows:

“A trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous.” Mistich v. Volkswagen of Germany, Inc., 95-0939, p. 8 (La.1/29/96); 666 So.2d 1073, 1079. This includes the determination of “how much and what kind of education and/or training adequately qualify an individual as an expert.” Darbonne v. Wal-Mart Stores, Inc., 00-551, p. 7 (La.App. 3 Cir. 11/2/00); 774 So.2d 1022, 1027.

Ms. Rivera-Santos presents us with no legal authority to suggest that the trial court .abused its discretion in recognizing Chief Warrant Officer Wilson as an expert “in the area of property accounting technicians and the general duties the Warrant Officers are called on to perform within their specialty.” The law is clear that “[a] combination of specialized training, work experience, and practical application of an expert’s knowledge can combine to demonstrate that person is an expert; a person may qualify as an expert based upon experience alone.” State v. Berry, 95-1610, p. 20 (La.App. 1 Cir. 11/8/96), 684 So.2d 439, 456, writ denied, 97-0278 (La.10/10/97), 703 So.2d 603. Thus, after reviewing the record, we cannot say that the trial court erred in allowing the Chief Warrant Officer to testify as an expert.

Ms. Rivera-Santos also argues on appeal that the trial court erred in allowing her former husband to introduce copies of documents representing milestones in his military career. Her objections are twofold. First, she asserts that Mr. Rivera-Santos offered copies without producing the originals. Second, she asserts that the documents were hearsay.

Louisiana Code of Evidence Article 1003 provides that a duplicate is admissible to the same extent as an original unless:

ls(l) A genuine question is raised as the authenticity of the original;
(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or
(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

“A duplicate copy ... is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original.” State v. Carter, 97-2902, p. 30 (La.App. 4 Cir. 5/10/00), 762 So.2d 662, 681, writ denied, 00-1598 (La.6/15/01), 793 So.2d 1233. We first note that Mr. Rivera-Santos testified he had the originals in his possession and available for inspection and was offering the copies in lieu of the originals. Absent a further showing by Ms. Rivera-Santos that Mr. Rivera-Santos was in bad faith, this assignment of error is without merit. With regard to most of the copies offered, Ms. Rivera-Santos did not request to see the originals and did not object to the introduction of the copies. She cannot now complain of Mr. Rivera-Santos’ failure to produce the originals.

Concerning her second assertion that certain documents were hearsay, the record reflects that she did timely object to them introduction. In response to the objection, counsel for Mr. Rivera-Santos asserted that the documents were not being offered for the truth of the content, but rather to show the nature of the promotion process he was required to go through after his divorce. The trial court did not err in admitting the documents for that purpose. La.Code Evid. arts. 801 through 803.

We recognize that the fifth circuit, in Wirstrom v. Wirstrom, 608 So.2d 216 (La. App. 5 Cir.1992), upheld the trial court’s decision to use the Sims formula to partition the husband’s Air Force pension, despite his contention that his post-community efforts accounted for an increase in the pension. However, that case is | ^distinguishable from the matter now before us in that the former husband in Wirstrom merely presented his own self-serving testimony that his personal and post-community efforts were responsible for his substantial pay increase. He offered no evidence of his prior or current pay, what raises he received, or his anticipated pay at retirement. Simply stated, the husband in Wirstrom failed to meet his burden of proof under Hare, and nothing in that case indicates that the Hare exception is not intended to apply to cases involving military retirement benefits.

This court in McCown v. McCown, 93-899, p. 6 (La.App. 3 Cir. 03/02/94), 634.-So.2d 1249, 1252 (citing Hare, 586 So.2d at 128), addressed the issue of whether or not personal achievements warrant the deviation from the Sims formulas as follows:

“[If an] employee spouse attains a significantly higher-paying position while remaining within the coverage of the same pension plan, either through earning a post-community degree, or transfer within the company to an unrelated area of service ... Such increases are not ‘acquired during the existence of the legal regime through the effort, skill, or industry of either spouse’ are not fairly ascribable to the community and should not be considered community property.”

(Emphasis added.)

Just as the trial court did, we conclude that Mr. Rivera-Santos’ post-community increases in compensation have been substantial and that they were not due to a non-personal factor, but attributable purely to his personal effort and skill. We find that the trial court erred as a matter of law in concluding that the Hare exception would not apply- in this case involving military retirement benefits. We recognize that few courts have addressed the Hare exception to Sims. However, in the matter before us, Mr. Rivera-Santos had established all of the elements necessary to claim his right to the exception, and it would be an injustice to him to do otherwise. Therefore, we L,amend the trial court’s judgment to conform with the evidence presented.

DISPOSITION

For the following reasons, we affirm the trial court’s recognition of Ada Elbe Melendez Rivera-Santos’ interest in the retirement benefits of her former husband, Fredy Rivera-Santos. However, we amend the trial court’s judgment to reflect that the base for calculating the retirement benefit is that of Staff Sergeant, E-6, and not Warrant Officer. In doing so, we amend that portion of the judgment purporting to establish the formula for calculating the benefit division by deleting the reference to “the rank of W-2” and replacing it with “the rank of Staff Sergeant, E-6.” We assess all costs of these proceedings to Ada Elba Melendez Rivera-Santos.

AFFIRMED AS AMENDED.


author: JjDECUIR, Judge.

text:
    Karen UNKEL v. W.O. MOSS REGIONAL HOSPITAL, et al.
    No. 03-0861.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      William M. Hudson, III, Henry A. Bernard, Jr., Oats & Hudson, Lafayette, LA, for Defendants/Appellants, W.O. Moss Regional Medical Center, Louisiana Department of Health & Hospitals, Dr. Nguyen Nguyen.
    Lisa Coleman Lee, Attorney at Law, Baton Rouge, LA, for Intervenor/Appellee, Medicaid Louisiana Department of Health & Hospitals.
    Michael G. Hodgkins, Attorney at Law, Lake Charles, LA, for PlaintiffyAppellee, Karen Unkel.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   JjDECUIR, Judge.

Karen Unkel filed this medical malpractice action against Dr. Nguyen Nguyen, W.O. Moss Medical Center, and the Louisiana Department of Health and Hospitals after sustaining injuries while hospitalized at Moss Regional. Summary judgment on the issues of liability and causation was granted in Unkel’s favor and against the hospital and the State. Subsequently, the trial court awarded the statutory cap of $500,000.00 in damages, also via summary judgment, against the same defendants. Dr. Nguyen was dismissed. Both the defendants and Unkel have appealed, Unkel asserting the trial court erred in dismissing Dr. Nguyen, and the State and hospital arguing that material issues of fact remain which should have precluded both summary judgments. For the reasons which follow, we affirm.

In brief, the State and the hospital urge this court to reverse both the judgment rendered against them on the issues of liability and causation and the judgment awarding damages. Counsel for the defendants, however, has appealed only the March 28, 2003 judgment awarding damages. Consequently, the prior judgment wherein the State and the hospital were found to be liable for a breach. in the standard of care which caused the plaintiffs damages is a final judgment and is not now before us for review.

On the issue of damages, the plaintiffs evidence reveals the following, undisputed facts. Unkel was injured at the hospital when a fellow psychiatric patient attacked her, during which attack she sustained a serious blow to the head. The attacker was an inmate from the Calcasieu Parish jail. Unkel was transported to the emergency department of the hospital where she was examined and diagnosed with soft tissue injuries.

After two years of continuing problems, Unkel was diagnosed with, among other conditions, a subdural hematoma attributed to the injury received at Moss | ^Regional. Unkel then filed a medical malpractice claim asserting that hospital employees were negligent in failing to prevent the attack which resulted in her damages. Specifically, she asserted the hospital failed to follow its own rules and procedures to safeguard her from a violent, aggressive fellow patient. A medical review panel was convened. The panel ruled that the defendants were liable in medical .malpractice and the malpractice caused the plaintiffs psychiatric and physical injuries. Specifically concerning Dr. Nguyen, however, the panel determined that his breach of the standard of care did not cause thé plaintiffs injuries because he was not the attacker’s treating physician. Following that decision, this suit was initiated.

The plaintiff, now in her 40s, has a long history of mental illness and depression for which she receives ongoing treatment. The medical records indicate that prior to the attack, Unkel was capable of attending college and had as her goal a nursing career. However, as a result of her continued problems after the injury at Moss R.egional, Unkel was unable to finish college and is incapable of holding a job. This was the consensus of the professionals who evaluated Unkel after her injury; they included a neurologist, a physical medicine specialist, a neurqpsychológist, and a vocational rehabilitationist. The medical records further indicate that' in addition to the subdural hematoma, Unkel sustained a brain injury and lacerations in the attack, and she suffers from brain dysfunction, cognitive deficits, post-concussion syndrome with migraines, neck and back pain, and an exacerbation of preexisting major depression and anxiety disorders. Unkel presented evidence of past medical expenses totaling $108,596.78 and future medical costs estimated at $310,401.00. Unkel also offered the testimony of an economist who estimated her past lost wages, loss of earning capacity, and loss of household services to be in excess of | ¡¡$450,000.00. She urged the court to assess damages somewhere between $350,000.00 and $800,000.00 excluding future medical expenses.

Curiously, counsel for the State and the hospital presented no evidence whatsoever to refute the economic evaluations and damage estimates presented by Unkel. At the hearing on Unkel’s motion for summary judgment concerning liability and causation, the defendants offered only the affidavit of Dr. Nguyen, which the trial court determined was both self-serving and factually unsupported; it was not admitted into evidence. At the hearing on damages, the defendants offered the affidavit of James Misko, a clinical psychologist from Texas who had reviewed Unkel’s records. Portions of Misko’s affidavit were stricken from the record as a result of the trial court’s conclusion that his opinions on medical causation and medical diagnosis were beyond the expertise of a psychologist. Misko’s. affidavit did not pertain to damage quantification issues, but rather, his comments pertained primarily to causation. The defendants also offered the deposition testimony of Dr. Jake Hollen, the emergency room physician who treated Unkel at the time of the attack. His testimony likewise did not pertain to damages.

In a medical malpractice case, a court may resolve issues of liability and damages by summary judgment under appropriate circumstances. Bijou v. Alton Ochsner Med. Found., 95-3074 (La.9/5/96), 679 So.2d 893; Reidling v. Smith, 02-778 (La.App. 4 Cir. 9/18/02), 828 So.2d 656, writ denied, 02-2487 (La.3/14/03), 839 So.2d 34. Specifically, when a plaintiffs damages clearly exceed the statutory maximum of $500,000.00, summary judgment may be appropriately granted. Bramlet v. La. Patient’s Comp. Fund, 98-1728 (La.11/6/98), 722 So.2d 984. Summary judgment in such circumstances will “eliminate the need for unnecessary litigation Ron this particular issue, and further the courts’ general interest in promoting judicial economy.” Bijou, 679 So.2d at 897.

At the time of the summary judgment hearing, Article 967(B) of the Code of Civil Procedure provided that when a motion for summary judgment is made and supported by competent evidence, “an adverse party may not rest on the mere allegations or denials of his pleading,” but his response must set forth specific facts showing that there is a genuine issue for trial. The provision further explained, “If he does not so respond, summary judgment, if appropriate, shall be rendered against him.”

In the present case, the defendants have failed to set forth any specific facts which would reveal a genuine issue for trial. In granting summary judgment, the trial court found Unkel had established clearly a prima facie case as to the extent of her damages. The court then found the defendants had not met their burden of proof in establishing that genuine issues of material fact remain. The court explained that reasonable minds could not disagree with the conclusion that Unkel’s damages exceed the $500,000.00 cap, and the court awarded that amount plus past and future medical expenses. Upon review of the record, we conclude the trial court’s findings were correct.

We decline to address Unkel’s argument raised in brief wherein she contends the trial court erred in dismissing Dr. Nguyen because neither side requested his dismissal and the question of his fault was never litigated. Because Unkel did not formally answer the appeal as required by La.Code CivJP. art. 2133, she is not entitled to the relief requested. Therefore, issues regarding Dr. Nguyen’s liability are no longer at issue as his dismissal is final.

|fiFor the above and foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed to W.O. Moss Medical Center and the Louisiana Department of Health and Hospitals.

AFFIRMED.


author: 1 .THIBODEAUX, Judge.

text:
    Thomas LOVEJOY v. Hardie BERGEAUX and Crain Brothers, Inc.
    No. 03-862.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2003.

      Glenn W. Alexander, Jones & Alexander, Cameron, LA, for: Plaintiff/Appellant — Thomas Lovejoy.
    Hal James Broussard, Ped C. Kay III, J. Daniel Rayburn, Jr., Broussard & Kay, Lafayette, LA, for: Defendants/Appel-lees — Crain Brothers, Inc. and Hardie Bergeaux.
    Thomas E. Townsley, Lake Charles, LA, for: Plaintiff/Appellant — Thomas Lovejoy.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   1 .THIBODEAUX, Judge.

In this maritime case, the defendant-appellee, Crain Brothers, Inc. (Crain Brothers), filed a motion for summary judgment and asserted that the plaintiff-appellant, Thomas Lovejoy (Mr. Lovejoy), was not a seaman and should be precluded from bringing a claim under the Jones Act. The trial court granted the defendant’s motion for summary judgment after concluding that there were no genuine issues of material fact as to the plaintiffs status as a seaman. We disagree. We reverse and remand to the trial court for a trial on the merits.

I.

ISSUES

We shall address:

1) whether post-accident employment activities are relevant in determining seaman status; and,
2) whether the trial court erred in granting a summary judgment to the employer defendant and in dismissing plaintiffs claims under the Jones Act.

II.

FACTS

In March 2000, Crain Brothers started its Sunland project, which involved placing pipeline crossings under the intracoastal waterway, the Sabine River, and the Vin-ton Canal. In June 2000, Crain Brothers hired Mr. Lovejoy to perform welding services on this project. Mr. Lovejoy was required to pass a welding exam in June but did not start work on the project until July 5, 2000. Mr. Lovejoy worked with Crain Brothers on a previous project in 1995 as a welder on an offshore platform.

pThe Sunland project involved use of many types of boats including tugs, marsh-buggies, and aluminum flatboats. The MTV MISS HILDA transported the workers, welding machines, sandblasting equipment, welding leads, and all other equipment needed to complete the project down the intracoastal waterway to the crossing site on a daily basis. The duration of the trip was anywhere between 30-45 minutes. Once: at the site, the workers would pull the vessel up close to the bank and a marshbuggy machine, equipped with pontoons, would be used to offload the equipment onto another pontoon barge.

The waterway crossing construction consisted of welding the pipe together, one joint at a time. After welding, the workers moved the pipes along an assembly line where they were x-rayed, sandblasted, doped and jeeped. As each joint was completed, the string of welded pipe was pulled out into the marsh by a marshbug-gy, far enough for another joint of piperto be welded into the line. The final step was to weld a cap on it, pressure test it, and then install a pull cap on the end nearest the canal so that the line could be pulled through a hole that was bored underneath the waterway.

On July 8, 2000, Mr. Lovejoy was injured when a co-employee dropped a bucket on his head. The injury occurred on a levee, when the pipelines were being welded together. Though injured, he was released from the hospital and went back to his job a few days later. He continued to work on the project performing various tasks such as driving boats, transporting equipment, and fabrication welding until July 29, 2000. During his entire employment on this project, Mr. Lovejoy worked on the MTV MISS HILDA, the tugs, barges, marshbuggies and aluminum flatboats. He estimated that he piloted the M/V MISS HILDA to the job site about seven times during his work on the project and stayed on it all day long on some days.

|aMr. Lovejoy filed suit against Crain Brothers and his co-worker, Hardie Ber-geáux under various theories including Jones Act, maintenance and cure, and unseaworthiness. He later amended his lawsuit- to assert a claim against Zurich American Insurance Company: Crain Brothers filed a motion for summary judgment on the issue of seaman status. The trial court granted Crain Brothers’ motion for summary judgment ruling that there were no genuine issues of material fact. Thereafter, this appeal was filed.

III.

LAW AND DISCUSSION

Standard of Review

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94), 634 So.2d 1180, 1183; Leger v. La. Med. Mut. Ins. Co., 98-1098, p. 4 (La.App. 3 Cir. 3/31/99), 732 So.2d 654, 657, writ denied, 99-1253 (La.6/18/99), 745 So.2d 30. Stated differently, this court “asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Labbe v. Chem. Waste Mgmt., Inc., 00-1772, p. 4-5 (La.App. 3 Cir. 5/2/01), 786 So.2d 868, 872, unit denied, 01-1602 (La.9/14/01), 796 So.2d 685 (quoting Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750).

| ¿Because this is a summary .judgment case to which La.Code Civ.P. art. 966 et seq. is applicable, it is necessary to first determine who will bear the burden of proof at trial. Subpart (C)(2) of La.Code Civ.P. art. 966 explains:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

The Jones Act, 46 U.S.C.App. § 688(a), mandates that “[a]ny seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law....” While the Act affords an injured seaman the right to maintain an action, it is silent as to the definition of “seaman.” The Act “therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty’s special protection.” Chandris, Inc. v. Latsis, 515 U.S. 347, 355, 115 S.Ct. 2172, 2183, 132 L.Ed.2d 314 (1995).

In keeping with the jurisprudential development of admiralty law, Mr. Lovejoy has the burden of proving the elements of a twofold, conjunctive test for seaman status. “First, ... ‘an employee’s duties must “contribute to the function of the vessel or to the accomplishment of its mission.’ ” ... Second, ... a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (citation omitted); Roberts v. Cardinal Services, 266 F.3d 368, 374 (5th Cir.2001), cert. denied, 535 U.S. 954, 122 S.Ct. 1357, 152 L.Ed.2d 353 (2002).

|fiBecause Crain Brothers is the movant and it is not to bear the burden of proof at trial on seaman status under the Jones Act, it is not required to negate all essential elements of Mr. Lovejoy’s claims. The company must show an absence of factual support for one or more elements essential to Mr. Lovejoy’s claims. If Crain Brothers is able to do this, then the burden of production shifts to Mr. Lovejoy to produce factual support sufficient to establish that he will be able to satisfy his evidentia-ry burden of proof at trial. If Mr. Lovejoy successfully produces such support, then there is a genuine issue of material fact.

In a Jones Act case, the determination of seaman status is a mixed question of law and fact. Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). If reasonable persons could reach only one conclusion as to a particular factual issue, then such issue is not genuine and may be disposed of summarily. However, if reasonable persons could disagree as to a factual issue’s resolution, then such an issue is genuine, and trial on the merits is warranted. Sumner v. Sumner, 95-677 (La.App. 3 Cir. 11/8/95), 664 So.2d 718, writ denied, 95-2919 (La.2/9/96), 667 So.2d 531.

Mr. Lovejoy’s Seaman Status Under the Jones Act

As noted above, the test for seaman status is twofold and conjunctive. “First, ... ‘an employee’s duties must “contribute to the function of the vessel or to the accomplishment of its mission.” ’ ... Second, ... a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (citation omitted). See also Harbor Tug, 520 U.S. at 554, 117 S.Ct. at 1540; Roberts, 266 F.3d at 374. Each prong must be considered in turn.

| fiThe first prong of this fact-intensive test is a broad threshold inquiry. Typically, it is easily satisfied, and a maritime employee who does the ship’s work falls within the purview of the Jones Act. Indeed, “[a]ll who work at sea in the service of a ship” are potential seamen. Chandris, 515 U.S. at 368, 115 S.Ct. at 2190 (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 354, 111 S.Ct. 807, 817, 112 L.Ed.2d 866 (1991)). See also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 347 (5th Cir.1999). It is neither necessary for the maritime worker to aid in navigation nor to participate in actual transportation of the .vessel in order to satisfy the first prong. Little v. Amoco Prod. Co., 98-1130 (La.App. 1 Cir. 5/14/99), 734 So.2d 933, unit denied, 99-1752 (La.10/1/99), 748 So.2d 446; Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866. Mr. Lovejoy was employed by Crain Brothers as a welder. His duties.included loading equipment for the project onto the vessel. In addition, he piloted the vessel after his injury. Thus, given the broad interpretation of the first prong. of the Chandris test, it is likely that a jury could find Mr. Lovejoy contributed to the function of the vessel or to the accomplishment of its mission, which was to transport the workers and equipment to the welding site.

The second or “substantial connection” prong of the test is often the determinative one. It consists of both temporal and functional elements, which is to say that the focus is on the substantiality of the connection to a vessel or identifiable group of vessels. The connection must be substantial in terms of both duration and nature. The Supreme Court in Chandris stated that “[a] maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land-based and therefore not a member of the vessel’s crew, regardless of what his duties are.” Chandris, 515 U.S. at 371, 115 S.Ct. at 2191. The Court went on to state:

A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not |7qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.... And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict.

Chandris, 515 U.S. at 371, 115 S.Ct. at 2191.

There are genuine issues of material fact regarding whether the “substantial connection” prong of the Chandris test is satisfied. Before his injury, Mr. Lovejoy rode the vessel to work on a daily basis; however, most of his welding duties were performed on a levee. After his accident, Mr. Lovejoy spent a substantial part of his time on the M/V MISS HILDA and other boats and performed additional tasks such as piloting the M/V MISS HILDA.

The first criterion involves a consideration of the time spent by Mr. Lovejoy on a vessel in navigation. Crain Brothers argues that Mr. Lovejoy only rode a vessel on water on the way to the actual job site and spent less than 30% of his time on water. Crain Brothers estimates that he spent 37 hours on -a vessel, out of 245 hours worked. On the other hand, Mr. Lovejoy estimates that he spent at least 43% of his time on a vessel. His figure shows that he spent 82.7 hours of approximately 192 hours worked on a vessel.

Another issue is whether the area in which Mr. Lovejoy performed his work was a navigable body of water. Crain Brothers argues that the marsh where Mr. Lovejoy worked was not a navigable body of water. Mr. Lovejoy counters that the project involved marsh machines and that the welding machines and equipment were on barges which were pushed by tugboats, thus making the area a navigable body of water.

In its opinion, the trial court stated:

|sThe plaintiff contends that this Court should examine the duties to which he was assigned after his injury and that the Court should not rely on a “snapshot” of what job the plaintiff was performing at the exact time of his injury. All existing cases acknowledge that activities up to and including the time of injury should be included in the examination. The plaintiffs attempt to stretch this rationale to include his activities after his injury requires a leap of logic which would subvert the purpose of the Jones Act. This would allow someone who had no connection with Jones Act activities who was injured on the job to retroactively claim Jones Act status if he were assigned to a seaman’s duties after his injury. Such an analysis would lead to absurd results unintended by the Jones Act and general maritime law.

Mr. Lovejoy suggests, and we agree, that the trial judge neglected to consider the claimant’s time after his injury in determining seaman status. “[S]ea-man-status is determined by the employee’s entire employment-related connection to a vessel, [or fleet of vessels] and not by the immediate circumstances or location of the plaintiffs injury.” Hufnagel, 182 F.3d at 346. (Emphasis supplied). See also Chandris, 515 U.S. at 363, 115 S.Ct. at 2187. The Chandris court stated that “courts should not employ ‘a “snapshot” test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated in the jurisprudence.’ ” Chandris, 515 U.S. at 363, 115 S.Ct. at 2187. Although the court in Chandris did not specifically state that post-accident activities can be included in determinating seaman status, we can infer this from the facts of the ease. In Chandris, the employee was injured and returned to work on the vessel. The court considered the time the employee spent on the ship after the accident, while the vessel was in dry-dock, in determining that the employee was a seaman.

19Chandris also addresses the issue of retroactive determination of seaman status by providing an exception to the general rule that an employee’s entire employment should be considered in determining seaman status. Chandris provides:

When a maritime worker’s basic assignment changes, his seaman status may change as well ... For example, we can imagine situations in which someone who had worked for years in an employer’s shore side headquarters is then reassigned to a ship in a classic seaman’s job that involves a regular and continuous, rather than intermittent, commitment of the worker’s labor to the function of the vessel. Such a person should not be denied seaman status if injured shortly after the reassignment, just as someone actually transferred to a desk job in the company’s office and injured in the hallway should not be entitled to claim seaman status on the basis of prior service at sea. If a maritime employee receives a new work assignment in which his essential duties are changed, he is entitled to have the assessment of the substantiality of his vessel-related work made on the basis of his activities in his new position ... While our approach maintains the status-based inquiry this Court’s earlier cases contemplate, we recognize that seaman status also should not be some immutable characteristic that maritime workers who spend only a portion of their time at sea can never attain.

Chandris, 515 U.S. at 372, 115 S.Ct. at 2190.

' Based on the totality of the circumstances of Mr. Lovejoy’s employment, including his time spent on the vessel after his injury, we do not find this to be a case where “undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, [where] the court may take the question from the jury by granting summary judgment or a directed verdict.” Chandris, 515 U.S. at 371, 115 S.Ct. at 2191. When the facts are analyzed against the backdrop of the jurisprudence, we believe that a reasonable jury could conclude that Mr. Lovejoy spent more than 30 percent of his employment time aboard vessels owned or controlled by Crain Brothers. Consequently, seaman status remains a genuine issue of material fact in this case.

JiS1^

CONCLUSION

For the reasons assigned, the trial court judgment appealed from is reversed and set aside insofar as it grants summary judgment declaring no genuine issue of material fact as to Mr. Lovejoy’s seaman status as contemplated by the Jones Act and the jurisprudence interpreting said Act.

REVERSED 'AND REMANDED FOR TRIAL ON THE MERITS.

      . Hardie Bergeaux filed an exception of no cause and/or no right of action and the excep-tíón was granted. No appeal was taken by Mr. Lovejoy.