author: I,WILLIAMS, Judge.

text:
    Don MOSELEY, Jr., Plaintiff-Appellant v. Harold S. MUSTIN, Jr., Defendant-Appellee.
    No. 38,455-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 28, 2004.

      Jeffrey L. Little, Shreveport, for Appellant.
    Aubrey R. Snell, for Appellee.

      Before BROWN, WILLIAMS and CARAWAY, JJ.
   I,WILLIAMS, Judge.

This case involves a dispute over the split of commissions earned from the sale of New York Life Insurance Company (“New York Life”) products. The plaintiff, Donald Moseley, Jr., filed suit against defendant, Harold Mustin, Jr., based on a December 1998 contract governing commission splits between the parties allegedly earned while they were working at New York Life. Plaintiff appeals the trial court’s judgment in favor of the defendant, dismissing the plaintiffs claims. For the following reasons, we affirm.

FACTS

The plaintiff and the defendant were insurance agents for New York Life. Both parties testified that the defendant was much more experienced than the plaintiff as an insurance agent. The defendant and the plaintiff worked together on various files and shared some commissions on a 50/50 basis. The two men worked together for approximately two years before a disagreement arose between them in April 1998. The defendant testified that the disagreement began when the plaintiff informed him that he would be assisting another New York Life agent, who was one of the defendant’s competitors within the company. The defendant testified at trial that immediately after he learned of the plaintiffs intentions, he met with the plaintiff at a local restaurant to discuss the apparent business conflict, but they could not agree on a solution. The defendant terminated their working relationship at that time, but they continued to share commissions on clients they had previously established together.

In the latter part of 1998, the plaintiff approached the defendant with |¡>a proposed agreement consisting of seven paragraphs that he drafted to govern future commission splits between the two of them. The defendant refused to sign this original draft. Based on the defendant’s objections to some of the contents, the contract was revised and signed by both parties on November 30, 1998. The revised contract retained the terms and language used in the first two paragraphs of plaintiffs original draft. After a typographical error was discovered in this document, a corrected contract was signed by both parties on December 2, 1998. This final contract provided that the parties would split on a 50/50% basis future commissions earned from current joint clients, as well as any commissions earned from a project pending at Beaird Industries (“Beaird”) to implement a payroll deduction/group benefits plan and a transfer of the union 401(k) pension fund.

Subsequently, the plaintiff complained that defendant had breached the written agreement by failing to pay plaintiff his share of commissions for certain policies sold both before and after the date of the contract. The plaintiff filed a petition for damages against the defendant, seeking an accounting and payment of sums allegedly due under the contract. The petition also claimed that defendant had made misrepresentations in obtaining the contract by not disclosing that he owed money to plaintiff for policies sold prior to the contract.

After a trial, the district court issued written reasons for judgment finding that the December 1998 contract governed the business arrangement between the parties as of the date of signing and that the defendant did not Lowe any money to plaintiff on any of his claims. The trial court rendered judgment dismissing plaintiffs claims. Plaintiff appeals the judgment.

DISCUSSION

In several assignments of error, the plaintiff contends the trial court erred in finding that defendant did not owe any additional commission payments. Plaintiff argues that his right to one-half of the commissions from some pre-December 1998 policies is demonstrated by the parties’ past practices and by the contract, which reflected such “past dealings.”

Legal agreements have the effect of law upon the parties and the courts are bound to give legal effect to all such contracts according to the true intent of the parties. Pendleton v. Shell Oil Company, 408 So.2d 1341 (La.1982). A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. In order to reverse a factfinder’s determination, the reviewing court must review the record in its entirety and meet the following two-part test: 1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and 2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was reasonable. McDuffie v. Riverwood International Corporation, 27,292 (La.App.2d Cir.8/23/95), 660 So.2d 158.

Interpretation of a contract is the determination of the common intent of the parties. LSA-C.C. art. 2045. Such intent is to be determined in |4accordance with the plain, ordinary and popular sense of the language used, and by construing the entirety of the document on a practical, reasonable and fair basis. McDuffie, supra; Lindsey v. Poole, 579 So.2d 1145 (La.App. 2d Cir.1991), writ denied, 588 So.2d 100 (La.1991). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. LSA-C.C. art. 2046; Green v. New Orleans Saints, 2000-0795 (La.11/13/00), 781 So.2d 1199. Words of a contract must be given their generally prevailing meaning. LSA-C.C. art. 2047; Diefenthal v. Longue Vue Management Corp., 561 So.2d 44 (La.1990). In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text. LSA-C.C. art. 2056; Harris v. Housing Authority of the City of Mansfield, La., 27,771 (La.App.2d Cir.12/6/95), 665 So.2d 712.

The plaintiffs petition alleges that the December 1998 contract was meant to “memorialize the past dealings of the parties with regard to commissions derived from joint clients.” However, the contract specifically states that it covers future commissions and does not allocate commissions earned prior to the contract date.

Nor does the record support plaintiffs apparent argument that the parties’ prior pattern of practice established an unwritten agreement giving him the right to 50% of the commissions on some pre-December 1998 policies. There was conflicting testimony regarding such an arrangement. The defendant testified that before December 1998, the parties shared |Bcommissions on a ease-by-case basis and that they did not have a general agreement or formula with regard to the split of commissions. In addition, defendant stated that any pri- or working relationship with the plaintiff was over at the time the contract was signed and that the written agreement concerned solely their practice in the future.

The plaintiff testified that the parties did not end their working relationship, but continued forward with joint business in which the contract was one step in the process. Plaintiff acknowledged that the contract was meant to govern work with defendant for future commissions.

The record supports a finding that any business arrangement between the parties with respect to new clients had ended in April 1998. Considering the language of the contract and the evidence presented, we cannot say the trial court was clearly wrong in finding that the contract did not govern any policies or commissions generated prior to December 1998 and that defendant did not owe plaintiff any additional payments for such pre-contract policy sales. The assignment of error lacks merit.

The plaintiff contends the trial court erred in its interpretation of the term “client” in the contract. Plaintiff argues that he is entitled to an additional 25% of the commissions earned from the sale of insurance products to Pam Wing-field and Horace Wingfield, Jr. and 50% of the commission earned from the sale of products to Debra Best, G.O. Consultants, Inc., Horace Wingfield, Sr., Marilyn Wy-man and Beaird employees and several of their spouses. After reviewing the record, we find that the evidence does not support plaintiffs contentions.

lfiThe record shows that initially the plaintiff drafted a much more detailed contract providing him with the right to 50% of the commission on sales made to immediate family members of “current joint clients” and/or Beaird employees, any additional personal business and any referrals resulting from the group contact of Beaird employees. The defendant testified that he did not agree with the provisions in this draft and refused to sign. Testimony of both the plaintiff and defendant show that revisions were made to the contract. Both claim that the other was responsible for the revisions. However, paragraphs one and two of the December 2, 1998 contract are almost exact excerpts from the original draft written by the plaintiff. The contract provides in pertinent part:

1. All future commissions derived from the sale of products/services to current joint clients * will be split 50%-50% between the below undersigned.
2. Ail future commissions derived from the Beaird Industries payroll deduction/group benefits including the proposed 401(k) union transfers will be split 50%-50%.
* Current joint clients refers to clients in which Don Moseley, Jr. was paid 50% and Harold S. Mustin, Jr. was paid 50%.

A review of the December 2, 1998 contract along with the initial draft supports the trial court’s conclusion that the plaintiffs language and terms were used in the final contract. When interpreted in accordance with the appropriate Civil Code articles, we find the contract between the plaintiff and the defendant is substantially clear and unambiguous. The much broader provisions in the initial draft were specifically excluded from the final contract, which defines current joint clients as those who previously paid the parties a commission on a 50/50 basis.

|7The plaintiff also argues that the word “derived,” as used in the contract, should be interpreted to cover all of the situations that were included in the initial contract draft. However, during trial, expert witness Scott McGuire testified that he had not heard the word “derived” used as an insurance industry term. He further testified that in his dealings with other agents he always makes sure that “spin-offs,” “leads” or “referrals” are included in the agreement. These are the terms commonly used in the industry and refer to prospects. According to McGuire, a prospect is someone who has not yet purchased insurance. The contract signed by the parties did not include prospects in the definition of “current joint clients.” The plaintiff testified that he was familiar with the terms “spin-offs,” “leads” and “referrals” but chose not to use them in the December 2, 1998 contract. Based on the evidence presented, we cannot agree with the plaintiff that the word “derived” can be used to extend the contract’s definition of joint clients to include prospects or potential clients. We now examine the trial court’s ruling on each of the sales at issue.

Debra Best — Ms. Best is the daughter of Leo Brown and Margaret Brown, “current joint clients” of the parties. Although the record shows that commissions were split 50/50 from policy sales to Leo Brown and Margaret Brown, Best is not a “current joint client” as defined in the December 1998 contract. Furthermore, this policy was sold in October 1998, prior to the date of the contract. Thus, there was a reasonable factual basis for the trial court’s denial of this claim.

O.J. Romero — Mr. Romero was a “current joint client,” however, this | ^policy was sold to G.O. Consultants in 1999. Based on the contract’s definition of “current joint client,” G.O. Consultants was not a joint client, since it had never paid for a prior policy. Thus, the plaintiff is not owed any commission and the trial court’s denial of this claim was reasonable.

Horace Wingfield, Sr. — -This mutual fund was sold in May 1998. The trial court was correct in denying the claim based on the fact that this sale predates the December 2, 1998 contract. In addition, Mr. Wingfield, Sr. had not previously paid the parties a commission and was not a “current joint client” under the contract.

Pam Wingfield and Horace Wingfield, Jr. — Horace Wingfield and Pam Wingfield were “current joint clients,” since they had previously paid the parties commissions on a 50/50 basis. The defendant testified that he signed the plaintiffs name on the paperwork indicating the commission split at 75% for himself and 25% for the plaintiff. He stated the plaintiff knew about and approved the commission change. Testimony from plaintiff and other witnesses revealed that the plaintiff received ledgers, books of business and other New York Life insurance documents that should have placed him on notice about the change in the commission splits. Plaintiff states that he did not immediately challenge these changes because he failed to review his paperwork thoroughly enough to discover the revised commission splits. However, the defendant testified that the office manager would have contacted plaintiff for his approval of the change in the commission splits. Although the trial court did not specifically address this issue, the evidence supports denial of this claim.

[9Harilyn Wyman — This sale occurred in June 1998 and predates the December 2, 1998 contract. Furthermore, Wyman was not a “current joint client” of the parties, as defined in the contract. A reasonable factual basis exists for the denial of this claim.

Union Transfers(Beaird Industries)- —Both the plaintiff and the defendant testified that their efforts to transfer management of the union’s 401(k) pension fund and to establish a payroll deduction life insurance plan for Beaird employees were not successful. The defendant later sold individual insurance policies to non-union employees of Beaird. The record shows that plaintiff did not assist the defendant in making these sales. The defendant testified that he invited plaintiff to participate in sales presentations but he declined. The plaintiff could not positively state that he had personally met anyone who purchased insurance from defendant at Beaii’d. Plaintiff acknowledged that he did not write the applications or deliver the policies to any of the individuals at issue.

Nevertheless, plaintiff contends he is entitled to one-half of the commissions received by defendant for those individual polices. However, plaintiffs attempt in his initial draft to include such personal policies in a broader definition of Beaird clients was not accepted by defendant. Consequently, a reasonable interpretation of the parties’ intent is that the contract applied only to commissions which would be obtained from the proposed transfer of the union 401(k) pension fund or from an employee group plan with payroll deduction payments. Thus, the trial court correctly denied this claim. The assignment of error lacks merit.

| inThe plaintiff contends he is entitled to attorney fees due to the defendant’s alleged misrepresentations in failing to disclose commissions owed and in signing plaintiffs name on insurance applications without authority. The witness testimony demonstrated that New York Life insurance agents affixed another agent’s name to insurance applications in situations when they were working together and there was a high volume of business. Both plaintiff and defendant acknowledged affixing the other’s name to policy applications under such circumstances. In light of our decision affirming the trial court’s finding that defendant did not owe any additional commission payments, the plaintiff has failed to show any misrepresentation by the defendant to entice him to enter into the contract. Thus, the assignment of error lacks merit.

Frivolous Appeal

The defendant has answered the appeal alleging that plaintiff has filed a frivolous appeal and seeking an award of damages and attorney fees. He contends this appeal does not present a substantial legal question for our review.

Appeals are favored and appellate courts are therefore reluctant to impose damages for frivolous appeal. Harris v. Gaylord Bag Company, 26,335 (La.App.2d Cir.12/7/94), 647 So.2d 542, writ denied, 95-0051 (La.3/17/95), 651 So.2d 268. LSA-C.C.P. art. 2164 provides for the imposition of damages for frivolous appeals. This provision is penal in nature and must be strictly construed. Harris, supra. Damages will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, [nserious legal questions are not raised, or the appellate counsel does not seriously believe in the position he advocates. Even when the contentions on appeal are found to lack merit but raise legitimate issues, damages for a frivolous appeal are not allowed. Thomas v. Gould Street Logging, 27,192 (La.App.2d Cir.9/27/95), 661 So.2d 546; Fontenot v. Flaire, Inc., 26,055 (La.App.2d Cir.8/17/94), 641 So.2d 1062.

Here, plaintiffs counsel submitted an appellate brief with citations of authority and references to the record in support of his position on appeal. There is no showing that the appeal was taken solely for delay or that counsel did not believe in the position he advocated. Thus, an award of damages for frivolous appeal is not warranted.

CONCLUSION

For the foregoing reasons, the trial court’s judgment dismissing the plaintiffs claims is affirmed. Frivolous appeal damages are denied. Costs of this appeal are assessed to the plaintiff, Donald Moseley, Jr.

AFFIRMED; FRIVOLOUS APPEAL DAMAGES DENIED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Allen L. HARRIS, Plaintiff-Appellant v. JOHNSON PLUMBING, INC., Defendant-Appellee.
    No. 39,038-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 29, 2004.
    Leslie L. LaCroix, Jr., Monroe, for Plaintiff-Appellee.
    Provosty, Sadler, Delaunay, Fiorenza, & Sobel by Joseph J. Bailey, Alexandria, for Defendant-Appellant.
    Before GASKINS, MOORE and LOLLEY, JJ.
   PER CURIAM.

The parties to this workers’ compensation case have filed a joint motion to expedite this appeal because they agree that the judgment appealed from should be reversed or annulled. Upon examination of the record, we agree that the judgment of the Office of Workers’ Compensation (“OWC”) should be reversed due to the lack of notice to the employer of the rendition of a preliminary default judgment. La. C.C.P. art. 1702(A); Benton v. International Paper Company, 35,977 (La. App.2d Cir.5/8/02), 817 So.2d 443. Accordingly, the parties’ motion is granted. Under the authority of U.R.C.A. Rule 2-11.3, we decide this case summarily without oral argument. The January 12, 2004, judgment of the OWC is reversed, and this matter is remanded to the OWC for further proceedings. Costs of this appeal are assessed equally to both parties.

REVERSED AND REMANDED.


author: JjBILLIE COLOMBARO WOODARD, Judge. | THIBODEAUX, C.J.,

text:
    STATE of Louisiana v. Matthew CURTIS.
    No. 2004-111.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 2004.

      Sharon Wilson, Carla S. Sigler, Assistant District Attorneys, Rick Bryant, District Attorney, Lake Charles, LA, for State/Appellee, State of Louisiana.
    Pamela S. Moran, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Matthew Curtis.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   JjBILLIE COLOMBARO WOODARD, Judge.

The Defendant appeals the trial court’s imposition of sentence under La.Code Crim.P. art. 893.3, the firearm enhancement article. We affirm.

* * *

On January 27, 2002, Mr. Matthew Curtis, together with two co-defendants, attempted to sell crack cocaine to the victim, Mr. Lee Freeman. When Mr. Curtis entered Mr. Freeman’s vehicle to complete the sale, they struggled and Mr. Curtis shot and killed Mr. Freeman.

On March 21, 2002, the State charged Mr. Curtis with second degree murder, which carries a penalty of “life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” On May 20, 2002, he pled not guilty and requested a jury trial. On June 24, 2003, a jury was empaneled. The next day, outside of the jury’s presence, the court heard Mr. Curtis’ pretrial motions and ruled that certain statements he made to the police would be admissible at the trial. Subsequently, counsel informed the court that the parties had reached a plea agreement to the lesser offense of manslaughter. Thus, the State amended the bill of information to reduce the charge to manslaughter, carrying a penalty of up to forty years of imprisonment.

No specific sentencing recommendation resulted from the plea bargain. However, the State advised the court that it was seeking sentencing under the firearm enhancement provision, La.Code Crim.P. art. 893.3, and requested a hearing on the issue. Defense counsel acknowledged that the State had advised him of its intent to invoke the provision, and he also requested a pre-sentence investigation report before sentencing. At that time, defense counsel gave the court a waiver of constitutional rights form and the plea of guilty form, which the Defendant had signed. The court reviewed the forms, questioned Mr. Curtis regarding his guilty plea and waiver of constitutional rights, and accepted the plea has knowingly and voluntarily given. The court scheduled the sentencing hearing for September 26, 2003.

On the morning of the sentencing hearing, the State filed its written notice to invoke the sentencing provisions of Article 893. Defense counsel orally objected to its invocation, alleging that the State did not comply with the Article’s notice requirement. The trial court overruled the objection. After the sentencing hearing, the court sentenced Mr. Curtis to the minimum sentence under Article 893.3, which is twenty years imprisonment without benefit of parole, probation, or suspension of sentence. The trial court denied Mr. Curtis’ motion to reconsider his sentence.

Mr. Curtis appeals, alleging in his sole assignment of error that the trial court erroneously sentenced him according to the firearm enhancement provision, notwithstanding the State’s failure to follow the provision’s procedural notice requirement.

ERRORS Patent

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find none.

Ability to Review Sentence

We find no merit to the State’s contention that La.Code Crim.P. art. 881.2(A)(2) precludes our review of Mr. Curtis’ sentence. Article 881.2(A)(2) provides that “[t]he defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.” In State v. Pickens, this court held that we are not automatically precluded from reviewing a sentence unless the plea agreement provides a specific sentence or sentencing cap. The plea agreement in this case did not result in any specific sentencing recommendation.

The State also argues that La.Code Crim.P. art. 881.1(E) precludes Mr. Curtis from seeking review because he did not reference the firearm enhancement article in his motion to reconsider sentence. Article 881.1(E) provides:

| aFailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

Nonetheless, the trial court determined the sufficiency of the State’s written notice under La.Code Crim.P. art. 893.1 before it imposed sentence, and defense counsel timely objected to the court’s ruling. Thus, we find the Defendant’s timely objection sufficient to preserve his right of review on this issue.

Notice under La.Code Crim.P. art. 893

The trial court sentenced Mr. Curtis under the firearm enhancement statute, La.Code Crim.P. art. 893.3, which provides in pertinent part:

(E)(1)(a) Notwithstanding any other provision of law to the contrary, if the defendant commits a felony with a firearm as provided for in this Article, and the crime is considered a violent felony as defined in this Paragraph, the court shall impose a minimum term of imprisonment of ten years. In addition, if the firearm is discharged during the commission of such a violent felony, the court shall impose a minimum term of imprisonment of twenty years.
(b) A “violent felony” for the purpose of this Paragraph is: aggravated sexual battery, aggravated burglary, carjacking, armed robbery, second degree kidnapping, manslaughter, or forcible rape.
(2) A sentence imposed under this Paragraph shall be without benefit of parole, probation or suspension of sentence.

(Emphasis added.)

Additionally, La.Code Crim.P. art. 893.1

provides:

A. If the district attorney intends to move for imposition of sentence under the provisions of Article 893.3, he shall file a motion within a reasonable period of time prior to commencement of trial of the felony or specifically enumerated misdemeanor in which the firearm was used.
B. The motion shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall specify the provisions of this Chapter under which the district attorney intends to proceed.

|4(Emphasis added.)

Louisiana Code of Criminal Procedure Article 893.1 was enacted in 1981. However, it was not a notice provision; rather, it more closely reflected the substance of current Article 893.3, prescribing the mandatory minimum sentences for offenses in which a firearm was used and mandating that those sentences be without benefit of parole, probation, or suspension. At that time, the Code contained no notice provisions for invoking Article 893.1. On December 2, 1985, the Louisiana Supreme Court handed down decisions in a series of cases concerning whether a court could sentence a defendant under Article 893.1 without giving him prior notice of its intent to do so. In those cases, the court noted that some lower courts had construed the language “shall impose” within Article 893.1 to mean that it was mandated to sentence the defendant accordingly, even when the State never requested it. Thus, the first notice a defendant had of Article 893.1’s application was at his sentencing hearing. The supreme court held:

An accused is entitled to know in advance of trial by receipt of a written notice from the prosecutor that the state intends to invoke art. 893.1 by calling on the trial judge prior to sentencing to make a finding that a firearm was used in the commission of the charged felony. Absent such pre-trial notice, the penalty enhancement provision contained in art. 893.1 shall not be applied.

While the court provided that its ruling would have prospective application only, the following year, it overruled this portion of its holding, finding that the | Brule should be given limited retroactive application. Its holding was prompted by the following concerns:

When the applicability of a sentencing enhancement statute (Article 893.1 in this case) depends upon a finding, based on evidence presented at trial, that a firearm was used in the commission of a crime and the defendant’s sentence may be substantially increased as a result of the application of the statute, the due process clauses of the federal and state constitutions mandate that the defendant be notified, in advance of the trial at which evidence of this factual issue is to be presented, of the importance of rebutting such evidence (use of a firearm), even though the evidence is not necessary to prove an essential element of the charged crime. The serious consequences of the finding based on this evidence (even if the judge makes the finding in post-trial proceedings) trigger the requirements of notice at a meaningful time and of an opportunity to be heard on the issue.

In 1988, the legislature amended La. Code Crim.P. art. 893.1 and added Articles 893.2 and 893.3. Article 893.1 codified the supreme court’s holding, requiring notice. Article 893.2 provides, inter alia, that the court may hold a contradictory hearing concerning whether a defendant used or discharged a firearm, also a direct response to the Court’s concerns, as expressed above. Finally, Article 893.3 reflected the substance of the 1981 version of Article 893.1, prescribing the minimum sentences for offenses in which the defendant used or discharged a firearm. The current version of Article 893.3 prescribes harsher sentences and contains minimum sentences that are specific to certain offenses, whereas the 1981 version of Article 893.1 was much more general in nature. However, both are characterized as sentencing statutes, “which merely limit[] sentencing discretion under certain circumstances.”

In reviewing the supreme court’s decisions, from which Articles 893.1, 892.2 and 893.3 clearly originated, we find no case in which lack of written notice was the only deficiency. In those cases, the defendant had no prior written or actual notice. Nor have we found any subsequent cases in which the defendant |Bhad actual notice. Thus, the effects of the State’s failure to timely file written notice, even though it gave the Defendant actual notice in a timely manner, is a res nova issue. For the following reasons, we agree that the State timely notified the Defendant in the instant case.

We acknowledge that the State did not file its written motion until the morning of the sentencing hearing, which, considered alone, is not “within a reasonable period of time prior to commencement of trial.” Nonetheless, we must recognize that there was no trial on the manslaughter charge in the case at bar. Rather, a jury was selected for Mr. Curtis’ trial on the charge of second degree murder, which carries a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Thus, the State had no reason to invoke the firearm enhancement provision before trial because it was inapplicable to that charge.

Article 893 became applicable, only, at the time that the State amended the charge to manslaughter. Immediately after the State moved to amend the charge to manslaughter, informing the court that it understood that Mr. Curtis would plead guilty to that charge, the court asked if there was a sentencing recommendation. The State’s counsel replied:

There is no recommendation, Your Honor. And I — as I’ve discussed with Mr. Bouquet [defense counsel], the State is seeking the firearm enhancement to the crime under Code of Criminal Procedure Article 893.3.
And we would ask for a hearing on that so that we can put forth the evidence to the Court as to what we — what the enhancement should be.
Mr. Bouquet: That’s correct, Your Hon- or. She did advise me of that.

| ^Accordingly, it is clear that the Defendant had actual notice of the State’s intent to invoke the firearm enhancement provision at the earliest opportunity. Subsequently, the court questioned Mr. Curtis regarding his guilty plea, which included the following colloquy:

The Court: They have indicated that there is no recommendation, but I do need you to be aware of the potential penalties involved in this. Whoever commits manslaughter shall be imprisoned for not more than 40 years. Do you understand that?
The Witness: Yes, sir.
The Court: And do you understand there’s been reference to Code of Criminal Procedure Article 893.3, which is an enhancement article that has to do with a penalty when a firearm is used?
The Witness: Yes, sir.
The Court: You’ve been told about that?
The Witness: Yes, sir.
The Court: And you accept those possible consequences of both the manslaughter articles and possibly the 893.3 articles?
The Witness: Yes, sir.

Thus, defense counsel and the Defendant acknowledged in open court that they had been advised of the State’s intent to invoke the firearm enhancement articles. Furthermore, at that time, the State requested a hearing on the issue in open court. The court scheduled sentencing for September 26, 2003, giving defense counsel three months to prepare for the sentencing hearing, knowing that enhancement would be an issue. The day of the sentencing hearing, the State filed its written notice to invoke the firearm enhancement provision.

Defense counsel objected but presented no evidence or witnesses in response to the State’s witness, Detective Sergeant Kevin Kirkum, on the firearm issue. The trial court overruled the objection and proceeded to find that there was clear and | sconvincing evidence that Mr. Curtis had committed a felony in which a firearm was discharged. On the issue of notice, the court stated:

The Court at this time references the transcript of the sentencing — I mean of the guilty plea, received June 23rd, 2003. It was at that time I believe the defendants were clearly placed on notice that the State intended to invoke Article 893.1 if in fact a Manslaughter plea was accepted by this Court, and which it was.
The time that 893.1 first became relevant, which would be at the time of the reduced or amended charge for which Mr. Curtis pled, the defendant became cognizant of that possibility and of that intent.
And therefore the mere offering of the written statement of the essential facts which have been for the most part given to this Court at the time of sentencing by the defendant’s own admission, there is no surprise, there is no inability to state that this was not something that was anticipated.
And therefore, the objection as to the timeliness is going to be denied as indicated.

We agree. Written notice under La. Code Crim.P. art. 893.1 serves as proof that the State has timely notified a defendant of its intent to invoke the article and ensures that the State informs a defendant of the essential facts that constitute the basis for the article’s invocation. In the instant case, the State notified the Defendant at the earliest possible opportunity that it intended to invoke the enhancement provision and requested a hearing, both in open court, and with the Defendant’s acknowledgment. Thus, the record provides proof that the State timely notified Defendant of its intent. Additionally, during Mr. Curtis’ guilty plea, he admitted “that the fatal shot that killed Mr. Freeman came from the gun [he] had.” Accordingly, Mr. Curtis had already admitted the “essential facts constituting the basis” for Article 893.3’s application. Accordingly, the record provides proof that the purposes of Article 893.1’s written notice requirement were met through actual notice to the Defendant at the earliest opportunity. Thus, given the particular facts and circumstances in this case, the Defendant did, in fact, receive timely notice.

|9CONCLUSIQN

We find no error in the trial court’s ruling that the State timely provided written notice under La.Code Crim.P. art. 893.1, given that it was following up on the proven actual notice it had already provided to the Defendant. Accordingly, we affirm Mr. Curtis’ conviction and sentence.

AFFIRMED.

THIBODEAUX, C.J., dissents and assigns written reasons.

| THIBODEAUX, C.J.,

dissenting.

The majority undertakes with much effort a review of the historical background of La.Code Crim.P. arts. 893.1-893.3. In doing so, it ignores the plain wording of La.Code Crim.P. art. 893.1 and engages in judicial imperialism by rewriting that codal article.

The Defendant pled guilty to one count of manslaughter. At his plea, the State expressed an intent to enhance his sentence under the provisions of Article 893.3 of the Code of Criminal Procedure. The Defendant used and discharged a firearm in the commission of the offense. The State waited until the morning of the sentencing to provide the Defendant with a written motion. The trial court said this was appropriate because the Defendant had been apprised at the time of his plea that this may be done.

Article 893.1 of the Code of Criminal Procedure is mandatory. It says the district attorney “shall file a motion within a reasonable period of time prior to commencement of trial.... ” This motion “shall contain a plain, concise, and definite written statement of the essential facts constituting the basis for the motion and shall | ^specify the provisions of this chapter under which the district attorney intends to proceed.” La.Code Crim.P. art. 893.1(B). First, filing a motion on the morning of the sentencing hearing is not “a reasonable period of time prior to commencement of trial.” Second, the trial court informed the Defendant at the time of the plea: “And you accept the possible consequences of both the manslaughter articles and pos sibly the 893.3 articles.” (Emphasis supplied). That implies some additional step in the process, particularly since the assistant district attorney said “and we would ask for a hearing on that [893.3] so that we can put forth the evidence to the court as to what we ... what the enhancement should be.”

Article 5 of the Code of Criminal Procedure says “shall” is mandatory. An elementary principle of criminal law is that criminal statutes and codes ought to be interpreted with lenity in favor of the defendant. The majority turns this principle on its head and completely re-writes a clear and unambiguous codal directive.

I cannot think of a greater prejudice to the Defendant. If the State had not complied with 893.1, it would not have received the benefit of Articles 893.2 and 893.3 of the Code of Criminal Procedure. In other words, it would not have had the benefit of a contradictory hearing and would not have had an opportunity to prove its entitlement to enhancement of the Defendant’s sentence. Additionally, under La.Code Crim.P. art. 893.3(E)(1)(a), a minimum sentence of twenty years could not be imposed if the State had not utilized the enhancement statutes. Rather, under 14:31, the manslaughter statute, the term of imprisonment would be up to forty years, but with benefit of probation, parole, or suspension of sentence. How do we know what the trial court would have done if it had not been obligated to impose a minimum mandatory enhancement sentence of twenty years? How could the Defendant have known what to do differently if the motion was filed on he morning |3of the sentencing? How could the Defendant know what to prepare for if the “essential facts constituting the basis for the motion” were not made known until the morning of the hearing? How could the Defendant prepare and get witnesses if the “provisions of [the] Chapter under which the district attorney intends to proceed” are not made known until it is too late to know what to prepare for?

For the foregoing reasons, I dissent.

      . La.R.S. 14:30.1(B).

      . La.R.S. 14:31 (B).

      . 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577 (La.11/5/99), 751 So.2d 232.

      . See La.Code Crim.P. art. 893.1 (Acts 1981, No. 139, § 1) (amended by Acts 1988, No. 319, § 1; Acts 1999, No. 575, § 1).

      . See State v. Jackson, 480 So.2d 263 (La. 1985); State v. Harris, 480 So.2d 281 (La. 1985); State v. Hogan, 480 So.2d 288 (La. 1985); State v. Barberousse, 480 So.2d 273 (La.1985); State v. Kennedy, 480 So.2d 299 (La.1985); State v. Blache, 480 So.2d 304 (La.1985); State v. Street, 480 So.2d 309 (La. 1985); State v. Delcambre, 480 So.2d 294 (La.1985).

      . See Jackson, 480 So.2d 263.

      . Id. at 271 (citations omitted).

      . State v. Allen, 496 So.2d 301 (La. 1986).

      . Id. at 304.

      . Id. at 303.

      . La.Code Crim.P. art. 893.1(A).


author: JjSCOFIELD, Judge

text:
    PROACTIVE THERAPY v. YELLOW BOOK, USA; Jo Lynn Duran v. Yellow Book, USA.
    No. 2003-1705.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 2004.

      Marcus Miller Zimmerman, Lake Charles, LA, for Plaintiff/Appellee, Jo Lynn Duran, Jeffrey C. Napolitano.
    Randy J. Hoth, Juge, Napolitano, Guil-beau, Ruli & Frieman, Metairie, LA, for Defendants/Appellants, Yellow Book, USA and Chubb Group of Insurance Companies.
    David B. Green, Woodley, Williams, Lake Charles, LA, for Plaintiff/Appellee Proactive Therapy.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN and JOHN B. SCOFIELD , Judges.

       Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   JjSCOFIELD, Judge

Defendants, Yellow Book, USA and Chubb Group of Insurance Companies (collectively referred to a Yellow Book), appeal a judgment of an Office of Workers’ Compensation Judge (OWCJ) in favor of Claimant, Jo Lynne Duran, finding she suffered a compensable accident for which benefits are due, and in favor of Plaintiff, Proactive Physical Therapy (Proactive), finding Proactive is entitled to payment for treatment it rendered Ms. Duran following her accident. The OWCJ also awarded Ms. Duran penalties and both Claimant and Plaintiff, attorneys’ fees. Defendants were cast with interest and costs. Defendants appeal. Ms. Duran answered the appeal seeking additional attorney’s fees for work necessitated by this appeal. Although Proactive prays for additional attorney’s fees in brief, it neither appealed nor answered Defendants’ appeal; thus its request is not properly before the court. We amend the judgment of the OWCJ to award Ms. Duran $2,500.00 in additional attorney’s fees and affirm the judgment as amended.

FACTS

Claimant, Jo Lynne Duran, was employed by Yellow Book as an account executive whose responsibility was to sell advertisement to local businesses in the Lake Charles area. On April 17, 2002, she went to work at about 8:30 a.m. Sometime after 10:00 a.m. she departed to keep an appointment with her primary care physician, Dr. Craig Broussard, and to call upon a client whose Yellow Book ad needed clarification. While waiting at the doctors’ office Claimant continued to receive business phone calls on her cellular phone. Upon checking out at the doctors’ office she inquired of Dr. Broussard and another doctor in the office, Dr. Ron Lewis, whether they had ads in the Yellow Book. Claimant then left the doctors’ office, | ¡¡planning to meet a co-worker, Pam Tadlock, at the Yellow Book office. Claimant and Ms. Tadlock had planned to go pick up lunch and bring it back to the Yellow Book office for a working lunch. On the way back to the office, Claimant placed and received additional business calls on her cellular telephone. As she attempted to turn into the Yellow Book parking lot she was “broad-sided” by another motorist and sustained serious injuries.

The OWCJ found that although Claimant had deviated from her employer’s business when she stopped to see her personal physician, she had re-entered the course and scope of her employment, if not when she asked the two doctors about Yellow Book ads, certainly when she stared back toward the office, conducting telephone business en route. Defendants appeal that determination and the award of penalties and attorneys’ fees.

LAW AND DISCUSSION

On appeal, Defendants list five assignments of alleged error; however, those assignments raise but two issues: 1) Was Claimant in the course and scope of her employment at the time of the accident? and 2) Did the OWCJ err in awarding penalties and/or attorneys’ fees?

Defendants argue that Claimant had deviated from the course and scope of her employment to see her private physician and, at the time of the accident, she had not yet returned to her employment as she was on her way to the office for lunch. The OWCJ found that Claimant had returned to her employer’s business at the time of the accident.

Here, the nature of Claimant’s work is a key element in analyzing whether the accident in which she was involved occurred during the course and scope of her employment. Claimant was a salesperson. She sold advertising space in the Yellow Book. The evidence is undisputed that to perform her work, she regularly used her 13automobile and her cell phone. Her job was to communicate with people, meet with them, and sell them advertising space. She used the telephone to make sales pitches, to set up appointments with customers, to follow up on appointments, to receive inquiries from customers and potential customers, and to trouble shoot customers’ problems. For the most part, the personal appointments with customers required her to travel by automobile to the customer’s place of business or home. Claimant’s work place, therefore, was by no means confined to the premises of her employer. The spatial boundaries of her work were limited only by the range of her automobile or her cell phone. It is fair to say that her work place easily encompassed the entire City of Lake Charles.

The temporal aspects of her work are also significant to our analysis. While Claimant’s stated work hours were from 8:30 a.m. to 4:30 p.m., she testified that she definitely was required at times to contact customers before normal work hours, after work hours and during the noon hour. During her testimony she stated:

Well, like I said, it wouldn’t matter where we would be or if we were at per se lunch. Sometimes we didn’t get a lunch. If we got a phone call and a customer could see us, we — didn’t matter to us what time it was or where we were. We went.

The broad temporal and spatial expanses of Claimant’s work place were something required of her by her employers.

On the day of her accident, Claimant did go to her doctor’s office which, in and of itself, was a personal mission, a deviation from her employment. However, on the way to the doctor’s appointment she went to a customer’s place of business to address a mistake that had been made in preparing a proof of a proposed advertisement. After her session with her doctor was completed, she made a sales pitch to her doctor and another doctor in that office. On her way back to the Yellow Book offices, shortly before the accident, Claimant was making sales related calls on her cell phone. The Laccident occurred while she was turning into her employer’s office to pick up a co-worker and together they were going to buy some sandwiches and return to the office for a working lunch, i.e., while eating they were going to be making sales calls on their cell phones.

Some cases in our jurisprudence use the phrases “deviation from the work place” and “re-entry into the work place” in determining if a workers’ compensation claimant is in the course and scope of employment when injured.

Deviation occurs when an employee, after having entered the work place, leaves or turns aside to do something personal or not work related. An injury occurring during the time of this deviation is generally not considered work related and, therefore, is not compensable under the workers’ compensation laws. In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers’ business to cash her Christmas bonus check. See also Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.

Our courts also recognize that once one has deviated from his or her employment, it is possible to re-enter the work place. If an employee is injured after returning to the work place or re-entering the work place, our courts will generally consider the injury to be work related and the employee is entitled to the benefits of the workers’ compensation laws. For instance, in Belt v. State Through Louisiana Board of Cosmetology, 493 So.2d 278, 285 (La.App. 3rd Cir.), writ denied, 496 So.2d 1044 (La.1986) this court stated:

It is well established in our law that where there is a temporary | ¡-^deviation from the course of employment to engage in purely personal business, such an employee re-enters his employment and the scope thereof when he has completed his private mission and turned toward the direction of the employment destination for the purpose of discharging his employment duties. Simmons v. Liberty Mutual Insurance Company, 185 So.2d 822 (La.App. 3rd Cir.1966); Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2nd Cir. 1980) writ refused, 385 So.2d 793 (La. 1980).

In the case at hand, Claimant did deviate during the twenty minutes or so that she was conferring with Doctor Broussard. However, given the nature of Claimant’s work and the entire scope of her actions on the morning of her accident, we consider this deviation to be slight and of a very short duration. She was in the course of her employment just prior to the appointment with her doctor and was so just afterward. In fact, the nature of her work was such that she could very well have received a cell phone call from a customer during her session with Dr. Broussard and she could have been within the course and scope of her employment during her actual conference with the doctor.

In Ray v. City of New Orleans, 03-1484, pp. 1-2 (La.App. 4 Cir. 2/4/04), 867 So.2d 783, 785, our colleagues of the fourth circuit reminded us of the following:

The issue of whether ... [Claimant’s] injury occurred within the course and scope of his employment is a factual determination. Factual findings of a hearing officer may not be disturbed by an appellate court unless the factual findings are manifestly erroneous or clearly wrong. Hulbert v. Boh Bros., 99-1187, p. 4 (La.App. 4 Cir. 1/5/00), 751 So.2d 994, 997. In order for an appellate court to set aside a hearing officer’s factual finding, the appellate court must conclude from the record, viewed in its entirety, that a reasonable factual basis did not exist for the hearing officer’s finding and that this finding is clearly wrong. Id. Thus, even though an appellate court may feel that its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Id.

In the case before us, the record establishes that Claimant’s job required her to spend considerable time both on the telephone and outside of the office contacting clients and prospective clients. She had engaged in both activities on the day of her |fiaccident. While she had deviated from her duties to keep a medical appointment, we cannot say the OWCJ was clearly wrong in finding that Claimant had reentered the course and scope of her employment before her accident. Upon leaving her doctor’s office she headed back to the Yellow Book office and made and received business telephone calls on her cellular telephone along the way.

Appellants also argue that the OWCJ erred in awarding penalties to Claimant and attorneys’ fees to both Claimant and Proactive Therapy. In George v. Guillory, 00-591, p. 9 (La.App. 3 Cir. 11/2/00), 776 So.2d 1200, 1207, this court stated:

The determination of whether an employer or insurer should be cast with penalties and attorneys fees is essentially a question of fact, and the workers’ compensation judge’s finding shall not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00); 763 So.2d 111. Under La.R.S. 23:1201, sanctions, in the form of penalties and attorneys fees, are available when workers’ compensation benefits are not provided as required by law. See Clifton v. Rapides Reg’l Med. Ctr., 96-509 (La. App. 3 Cir. 10/9/96); 689 So.2d 471.

Appellants contend that since Claimant’s primary reason for leaving her office was to engage in a personal mission, they were not arbitrary and capricious in denying benefits and should not be cast for penalties and attorneys’ fees. However, this argument ignores the doctrine of re-entry which states that an employee who deviates from the course and scope of her employment is only outside the scope of her employment until such time as the employee returns to the route of the business trip. See Belt, 493 So.2d 278; See also Timmons, 761 So.2d 507 and Authement v. Shappert Engineering, 02-1631 (La.2/25/03), 840 So.2d 1181. Accordingly, we find no clear error in the OWCJ’s award of penalties and attorneys’ fees.

As noted earlier, Claimant, Jo Lynn Duran, answered Appellants’ appeal seeking additional attorney’s fees for work necessitated by Appellants’ appeal. An award for attorney fees for work done on appeal is warranted when the appeal has necessitated additional work on the attorney’s part. Colonial Nursing Home v. |7Bradford, 02-588 (La.App. 3 Cir. 12/30/02), 834 So.2d 1262, writ denied, 03-364 (La.4/21/03), 841 So.2d 802. Considering Claimant’s attorney had to do additional legal research, prepare a brief and orally argue the case before this court, we find an additional award of $2,500.00 is reasonable under these circumstances.

Accordingly, for the reasons stated, we amend the judgment of the OWCJ to increase the Claimant’s attorney’s fees by $2,500.00; in all other respects the judgment is affirmed. All costs of this appeal are taxed against Appellants.

AFFIRMED AS AMENDED.

      . Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: |1SCOFIELD, Judge

text:
    Gregory DEREYNA, III v. PENNZOIL EXPLORATION, et al.
    No. 2004-97.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 2004.

      Frank Marion Buck, Jr., New Orleans, LA, for Intervenor-Appellant Frank M. Buck, Jr.
    Lawrence N. Curtis, Lafayette, LA, for Plaintiff-Appellee Gregory deReyna, III.
    Robert Lynn Manard III, New Orleans, LA, for Intervenor-Appellee Robert Lynn Manard, III.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   |1SCOFIELD, Judge

The Intervenor, Frank M. Buck, Jr., appeals the judgment of the trial court granting an exception of no right of action filed by the Plaintiff, Gregory deReyna, III, in this matter arising out of a fee dispute. For the reasons set forth hereinafter, we affirm.

FACTS

The participants in this dispute are the Plaintiff, Mr. Gregory deReyna, III; Mr. Frank Buck, Jr., a New Orleans attorney; Mr. Robert L. Manard, III, a New Orleans attorney, and his professional corporation, Robert L. Manard, III, a Professional Law Corporation (hereinafter referred to simply as “Manard”); and Mr. Lawrence N. Curtis, a Lafayette attorney, and his professional corporation, Lawrence N. Curtis, Ltd. (hereinafter referred to simply as “Curtis”).

Buck began a working relationship with Manard in 1990, which continued for approximately twelve years. During this period, Buck was paid a percentage of the fees earned in the cases handled by Buck, the percentage varying from time to time and from case to case. Manard paid all of the expenses and overhead pertaining to this arrangement. Buck and Manard never entered into a written agreement and at best, only had a loose verbal understanding of their relationship.

In September of 1998, the Plaintiff signed a written contingency contract with Robert L. Manard, III, a Professional Law Corporation. Manard assigned the Plaintiffs case to Buck who did most, if not all, of the work in preparing and trying | ¡.the Plaintiffs case. The trial itself began in August of 2000 and a jury rendered a verdict against the Plaintiff. However, in February 2002, Buck was successful in obtaining a new trial.

At about the same time as the new trial was granted, the relationship between Buck and Manard had soured to the extent that they ended their arrangement. The controversy between the two lawyers over the disposition of pending files intensified, leading to their dispute being litigated in the Civil District Court in New Orleans.

On April 17, 2002, Manard wrote a letter to the Plaintiff advising that Buck had left Manard’s office and further advised that Manard and Buck had agreed to divide any fee attributable to the Plaintiffs case, 60% to Manard and 40% to Buck. The Plaintiff signed this letter and added in what purports to be his own handwriting, “I consider Frank Buck to be my layer [sic].”

Meanwhile, the rancor between Manard and Buck continued to escalate. In the New Orleans lawsuit, Manard either effected or attempted to effect a seizure of all incoming fees of Buck. In September of 2002, Buck advised the Plaintiff that Buck could not provide the needed financing of the Plaintiffs case and that the Plaintiff should engage the services of another lawyer to take the case forward. Buck recommended Curtis to the Plaintiff and even facilitated the transfer of the file to Curtis.

Within a relatively short period of time after taking over the representation of the Plaintiff, Curtis entered into a mediation of the case resulting in the case being settled for the sum of $450,000.00.

On September 23, 2002, Manard intervened to recover fees and costs claimed to be due him in accordance with the contingency fee contract between Manard and the Plaintiff dated September 10, 1998. On July 7, 2003, Buck intervened alleging, \ sinter alia, that the Plaintiff had employed Buck to be his attorney and that Buck was entitled to a percentage of the fee. Buck has not stated in his pleadings or in his briefs just what that percentage should be. After thorough briefing by all parties, followed by oral arguments, the trial court granted the Plaintiffs exception of no right of action on August 29, 2003. On October 1, 2003, the trial court granted Buck’s motion for a suspensive appeal to this court.

DISCUSSION

This court has recently expressed the appropriate standard of review for an exception of no right of action:

An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. The determination of whether a plaintiff has a right of action is a question of law. Accordingly, we review exceptions of no right of action de novo.
Mississippi Land Co. v. S & A Properties II, Inc., 01-1623, pp. 2-3 (La.App. 3 Cir. 5/8/02), 817 So.2d 1200, 1202-03 (citations omitted).

St. Martin v. Willard, 03-204, pp. 4-5 (La.App. 3 Cir. 6/25/03), 848 So.2d 773, 776, writ denied, 03-2058 (La.11/14/03), 858 So2d 426.

Accordingly, this court must consider, de novo, whether Buck has a judicial right to intervene for his fee in deReyna’s suit against Pennzoil.

There seems to be no question that Buck performed considerable work for the Plaintiff, including handling most, if not all, of the pre-trial discovery and motions, as well as conducting the unsuccessful five day jury trial and thereafter, the successful motion for a new trial. However, during this entire time, Buck performed this work for the Plaintiff under the aegis of the contingency fee contract dated September 10,1998 signed by the Plaintiff and Manard. There is nothing in the record indicating that Buck ever had a contract directly with the Plaintiff. The closest thing to a written agreement between Buck and the Plaintiff is the letter from Manard to the Plaintiff |4dated April 17, 2002. Even though Buck did not sign this letter, it might arguably have established some privity of contract between him and the Plaintiff, e.g., a stipulation pour autrui. However, any such an argument has become moot. In Buck’s August 13, 2003 memorandum to the trial court in opposition to the Plaintiffs exception of no right of action, Buck addresses the intensification of the bitterness between Buck and Manard and Manard’s attempt to freeze Buck’s income, saying “When he [Buck] became aware of this attempt to freeze all of Buck’s income, Buck decided to terminate agreements that Buck and Manard had reached in the Gregory deReyna and Gregory Prince files.” In that same memorandum, Buck also states: “The Buck v. Manard litigation continued and a significant settlement agreement was reached between the parties and signed by them on Monday, July 14, 2003. In that agreement, both sides agreed they had ‘no agreement’ with respect to the deReyna file. Instead, they both agreed they were reserving all rights and remedies available to them.” Accordingly, by Buck’s own admission, any rights he may have acquired [Rby virtue of the April 17, 2002 letter between Manard and the Plaintiff have been terminated.

The law of Louisiana mandates that a lawyer’s contingency fee contract with a client must be in writing. Rule 1.5(c) of the Rules of Professional Conduct states in pertinent part “A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined....” The rules of Professional Conduct are rules issued and published by the Supreme Court of Louisiana. As such, these rules are recognized as having the force and effect of substantive law. Walker v. State, Dept. of Transp. and Development, 01-2078 (La.5/14/02), 817 So.2d 57; Keene v. Reggie, 96-740 (La.App. 3 Cir. 10/22/97), 701 So.2d 720.

Moreover, in La.R.S. 37:218, the legislature has devised a method whereby an attorney may secure an interest in his client’s claim. The statute provides that an attorney may preserve an interest in his client’s case by entering into a “written contract signed by his client.” The act further provides that once this written contract is filed for record in the office of the Clerk of Court in the Parish of the client’s domicile, the suit or claim cannot be disposed of without the lawyer’s written consent. It is obvious that the lynchpin of this statutory method of protecting a lawyer’s interest in his fee is that the contract between the lawyer and the client be in writing.

This court addressed the requisites of La.R.S. 37:218 in the case of Hanks v. |6Columbia Women’s and Children’s Hosp., 02-1394 (La.App. 3 Cir. 6/25/03), 865 So.2d 745, a case which is factually similar to the case at issue here. In Hanks, the plaintiff had a contingency fee contract with attorney J. Minos Simon to handle a medical malpractice claim. Mr. Simon engaged attorney C. Scott Carter to assist Simon in prosecuting the case. Simon and Carter entered into a fee splitting agreement but Carter had no contract directly with Hanks. Carter did considerable work on the Hanks case for which he was paid pursuant to his fee splitting agreement. Eventually, however, Carter was discharged from the case and he promptly filed a petition of intervention to protect his alleged right to future attorney’s fees. The trial court ordered that any future disbursements on Ms. Hanks’ claim include Carter’s name on the check. This court reversed the trial court holding, in effect, that because Carter had no written contract with Hanks, Carter had no right to share in the contingency fee.

It is undisputed that any fee payable by the Plaintiff was to be on a contingency basis. That contingency was met upon the settlement of the case for $450,000.00. For Buck to share in this contingency fee, the law mandates that there be a written contract between Buck and the Plaintiff. There was none.

It is not for this court to decide in these proceedings if Buck may have a cause of action in, say, quantum merit or unjust enrichment against Manard, or perhaps even Curtis. Buck only lays claim to a percentage of the Plaintiffs contingency fee. He |7has not pled nor has he argued any other theory of recovery against the Plaintiff or anyone else. Buck has no right of action in the Plaintiffs lawsuit. The Plaintiffs settlement should not be held hostage to a dispute Buck may have with Manard or Curtis.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Appellant.

AFFIRMED.

       John B. Scofield, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

      . While the preamble in the court’s formal judgment granting the exception states that the matter is before the court on an exception of no right of action, the dispositive portion of the judgment grants "the Peremptive Exception of Prescription,” an apparent typographical error. Under the provisions of La.Code Civ.P. art. 2132, the parties have corrected this error by stipulation.

      . This matter comes to this court on the trial court's granting of an Exception of No Right of Action. The record contains no testimony. Accordingly, the facts recited herein have been gleaned from the pleadings, briefs, mem-oranda and documents filed therewith, none of which has been subjected to the test of cross examination. Nevertheless, the facts essential to the disposition of this case do not appear to be in dispute.

      . Although the agreement between Curtis and the Plaintiff is not at issue in this lawsuit, there is nothing in the record to indicate just what the agreement between Curtis and the Plaintiff might be. Interestingly, there was no written agreement between Buck and Curtis relating to a fee arrangement after Curtis took over the case.

      . The basic letter from Manard to Plaintiff dated April 17, 2002, reads:
      Dear Greg:
      As you may know, Frank Buck has left my office to start his own practice. However, he and I have agreed to continue working on your case together. The agreement is that I will pay for costs and be available for consultation and he will do the leg work to finish out the case, including trying it and handling the appeal.
      Our fee is split 60% to Manard; 40% to Buck with me paying the costs. If this meets with your approval, please sign the bottom of this letter and send it back to me in the enclosed self-addressed and stamped envelope.
      Cordially,
      /s/ Robert L. Manard
      Robert L. Manard
      In signing this letter, Plaintiff adds the following, presumably in Plaintiff's own handwriting:
      I consider Frank Buck to be my layer [sic]. I’m ok with any agement [sic] between Ma-nard and Buck, as long as Frank Buck is my layer [sic],
      /s/Gregory deReyna, III
      Gregory deReyna, III

      . Not only does Buck have no written contract with the Plaintiff, there is nothing in the record indicating what contingency percentage Buck is claiming, much less'"the method by which the fee is to be determined.”

      . La.R.S. 37:218 provides that:
      A. By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
      B. The term "fee”, as used in this Section, means the agreed upon fee, whether fixed or contingent, and any and all other amounts advanced by the attorney to or on behalf of the client, as permitted by the Rules of Professional Conduct of the Louisiana State Bar Association.