author: LLOLLEY, J.

text:
    Laura Diane Joiner CASON, Plaintiff-Appellee v. Joseph Paton CASON, III, Defendant-Appellant.
    No. 38,974-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Barry W. Dowd, Monroe, for Appellant.
    William H. Norris, III, Shreveport, for Appellee.
    Before GASKINS, PEATROSS and LOLLEY, JJ.
   LLOLLEY, J.

Joseph Patón Cason, III (“Joseph”) appeals the judgment of the Fourth Judicial District Court, Parish of Ouachita, State of Louisiana, in favor of his former spouse, Laura Diane Joiner Cason (“Diane”). For the following reasons, we affirm.

Facts

Diane and Joseph were married on September 14, 1984 and maintained their matrimonial domicile in Ouachita Parish, Louisiana. On March 11, 2002, the couple permanently separated. Then, on March 14, 2002, Diane and Joseph executed a handwritten agreement addressing various matters, one being the permanent periodic spousal support of Diane (the “support agreement”). Shortly thereafter, on March 21, 2002, Diane filed her petition for divorce, to which she attached the support agreement. A rule to show cause was set ordering Joseph to appear and show why the support agreement should not be recognized by the trial court, or why Diane should not be awarded the following: permanent spousal support; exclusive use, occupancy and control of the family home and its contents; and, use of a vehicle previously driven by her. Joseph executed a waiver of service and consented to judgment being rendered against him as prayed for in the petition.

The trial court judge entered a stipulated consent judgment on April 4, 2002, to which both Diane and Joseph consented (the “consent judgment”). Before a notary public, Joseph had signed a Verification and Consent to Judgment (the “verification”), which stated, in pertinent part, as follows:

Before me, the undersigned notary public, personally came and appeared the Defendant, Mr. Joseph Patón Cason, III, who being sworn did depose and state that he has fully read and understood the terms and contents of this Judgment on Rule; and, that he has sought and received legal advice from an attorney of his own choosing as to the terms and effects of this Judgment; and, finally, that he agrees to |3and consents to the signing of this Judgment in advance of the hearing currently scheduled for June 3, 2002, and freely and expressly waives his appearance at said hearing in light of this Judgment being approved, signed, and filed.

The consent judgment provided for specific payments to Diane by Joseph and stated that “[a]ll of the aforementioned payments are to be deemed contractual interim and permanent periodic spousal support, (alimony) and as such, shall continue without modification until such time as [Diane] remarries, dies, or enters into open concubinage .... ”

Later, in October, 2002, Diane filed a rule for article 102 divorce, requesting that the consent judgment be confirmed and made permanent in the final divorce judgment. Service was personally made on Joseph, and the divorce was granted on December 16, 2002, also confirming and making permanent the provisions contained in the consent judgment.

Subsequently, in August 2003, Joseph filed his rule to modify Diane’s spousal support based on two claims. First, he argued that a reduction was warranted due to a change in his circumstances, and second, he alleged the award of contractual permanent periodic, non-modifiable, spousal support was against public policy. In response to Joseph’s filing, Diane filed exceptions of no cause of action, res judicata, unauthorized use of summary process, and prescription. After a hearing on same, Diane’s exceptions of res judicata and no cause of action were granted, and judgment was rendered in her favor. Joseph’s rule to modify the spousal support was dismissed. Joseph appeals the trial court’s judgment.

Discussion

Exception of No Cause of Action .

14At issue is the trial court’s granting of Diane’s exceptions of no cause of action and res judicata. The exceptions were filed in response to Joseph’s rule to show cause why the unmodifiable spousal support awarded Diane in the consent judgment should not be set aside.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. La. C.C.P. art. 927. It questions whether the law provides a remedy to the plaintiff against the defendant for the complaints set forth in the petition. Hall v. Zen-Noh Grain Corp., 2001-0324 (La.04/27/01), 787 So.2d 280; Fortenberry v. Hibernia Nat. Bank, 37,266 (La.App.2d Cir.08/20/03), 852 So.2d 1221. All well-pleaded allegations must be assumed as true, and any doubt is to be resolved in favor of the petition. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based solely upon the sufficiency of the petition. Industrial Companies, Inc. v. Durbin, 2002-0665 (La.01/28/03), 837 So.2d 1207; Fortenberry, supra.

The primary issue in Joseph’s appeal is whether the consent judgment (and the underlying support agreement it adopted) setting unmodifiable periodic spousal support for Diane was against public policy and, therefore, absolutely null. Contrary to Diane’s claim on appeal, the trial court, in its oral reasons for judgment, did make a finding regarding the validity of the agreement, or the consent judgment, finding “this type of contract [not] to be contra bonus mores or against public policy” [sic]. For the following reasons, we agree.

A contract is absolutely null when it violates a rule of public order, as when the object of the contract is illicit or immoral. A contract that is absolutely null | ¿may not be confirmed. La. C.C. art.2030. Persons may not by their juridical acts derogate from laws enacted for the protection of the public interest. Any act in derogation of such laws is an absolute nullity. La. C.C. art. 7.

Here, we have a consent judgment, agreed to by the parties. As stated, Joseph clearly agreed to the terms of the consent judgment at the time it was con-fected. The consent judgment adopted the terms of the agreement between Joseph and Diane which they signed three days after they physically separated and seven days before Diane filed her petition for divorce. This court addressed a similar agreement between the parties in Aufrichtig v. Aufrichtig, 34,909 (La.App.2d Cir.08/22/01), 796 So.2d 57, 61-62, wherein we stated that:

... the subject agreement [is] valid and enforceable. It has long been held that alimony after divorce can be made the subject of a contract. Such agreements are enforceable according to their own terms or the proven intent of the parties. These types of agreements have been described as “a bargained-for arrangement advantageous to both parties .... ” These contracts have also been classified as valid transactions or compromise in which the parties adjust their differences by mutual consent through a trade-off or bargaining away of rights.... (Citations omitted).

In this case, Joseph argues that the consent judgment can be distinguished from the Aufrichtig consent judgment, because that one was clearly made in anticipation of or after the dissolution of the marriage. Joseph maintains, at the time the support agreement was made, it was not a foregone conclusion that his marriage with Diane would not survive. Thus, Joseph argues that this support agreement differs from the Aufrichtig agreement, and is against public policy.

Joseph correctly states the holding in Aufrichtig, where this court distinguished agreements made in anticipation of or after the dissolution of divorce from those confected in the event of divorce. However, in this case, the trial court correctly found that the consent agreement and underlying support ^agreement upon which it was based was not a violation of public policy. As stated, Joseph and Diane had separated at the time the support agreement was agreed upon and signed by them. Then, seven days thereafter, Diane filed her petition for divorce. Considering the close proximity in time between the two events, it is clear that the support agreement was entered into by the parties in anticipation of divorce. Moreover, Joseph claimed in his Rule to Show Cause that the support agreement was against public policy, because Louisiana law did not allow for contractual, non-modifiable spousal support. As we stated in Aufri-chtig, Louisiana jurisprudence certainly allows for spousal support set in such a manner. Notably, Joseph did not claim that the support agreement was against public policy because it was confected only in the event of divorce. The trial court’s judgment gave Joseph the opportunity to amend his original rule; however, Joseph failed to do so. So considering, we reject Joseph’s claim that the consent judgment and underlying support agreement were in violation of public policy. The trial court properly determined that Joseph failed to state a cause of action.

As to the specific assignment of error raised by Joseph, the trial court’s determination that Joseph failed to state a cause of action made moot the scheduled hearing on his originally filed Rule to Show Cause, particularly in light of the fact that the trial court allowed him the opportunity to amend said rule; thus the trial court did not err in removing his rule from the court docket, in light of the trial court’s final determination.

Exception of Res Judicata

Another issue raised by Joseph is whether the trial court erred in granting Diane’s exception of res judicata based on the consent judgment. It is well settled that a valid compromise can form the basis of a plea of res judicata because a |7compromise has the legal efficacy of a judgment. Brown v. Drillers, 93-1019 (La.01/14/94), 630 So.2d 741. However, on appeal, Joseph states that the consent judgment should not be res judicata because he claims not to have understood the consent judgment at the time he signed the verification. This argument has no merit.

As stated herein, Joseph appeared before a Notary Public and signed the verification, agreeing that he “... fully read and understood the terms and contents of this [consent judgment] ... sought and received legal advice from an attorney of his own choosing as to the terms and effects of this [consent judgment] ... agrees to and consents to the signing of this Judgment.” Now, Joseph claims he was not given an opportunity by the trial court to explain what he meant by signing the verification, or that he did not understand which rights he had released and the resulting consequences.

Signatures are not mere ornaments. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983). A person who signs a written instrument is presumed to know its contents and cannot avoid its obligations by contending that he did not read it, or that it was not explained or that he did not understand it. First South Farm Credit, ACA v. Gailliard Farms, Inc., 38,731 (La. App.2d Cir.08/18/04), 880 So.2d 223. It is not within the province of the courts to relieve parties of what they perceive to be bad bargains. Shepard v. Phycor of Rustan, Inc., 29,181 (La.App.2d Cir.05/07/97), 711 So.2d 288, citing, Kenny v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970).

Initially, we note that Joseph made no claims in his Rule to Show Cause that the consent judgment or support agreement was a nullity due to fraud, error, or duress, i.e. he never gave any reason to suggest that he was misled or coerced to |ssign the verification. Nor does the record show that he responded or objected to Diane’s exception of res judicata with such claims. Apparently, Joseph raises this issue for the first time on appeal. Appellate courts generally will not consider issues raised for the first time on appeal. Costello v. Hardy, 2003-1146 (La.01/21/04), 864 So.2d 129.

However, even if we do consider his argument, considering the strong jurisprudence cited herein which serves to uphold signed written instruments, such an unsubstantiated claim alone does not suffice to re-litigate the consent judgment. Joseph obviously and validly agreed to the terms of the consent judgment as evidenced by his signature in front of a Notary Public. And, although Joseph argues that the trial court’s determination prevented him from being able to introduce evidence to support this claim, he had ample opportunity to defend against Diane’s exception of res judicata in brief and at the hearing of the matter. We note that the purpose of res judicata is to promote judicial efficiency and final resolution of disputes by preventing needless re-litigation. See, Lee v. Twin Bros. Marine Corp., 2003-2034 (La.App. 1st Cir.09/17/04), — So.2d -, 2004 WL 2071713, citing, Avenue Plaza, L.L.C. v. Falgoust, 96-0173 (La.07/02/96), 676 So.2d 1077, 1079. A decision not to grant Diane’s exception of res judicata would result in the needless reliti-gation of an issue already disposed of by the trial court-for no valid reason raised by Joseph; thus, we conclude that this argument is without merit.

Conclusion

For the foregoing reasons, the judgment of the trial court in favor of Laura Diane Joiner Cason is affirmed, with costs of this appeal assessed to Joseph Patón Cason, III.

AFFIRMED.

      . Joseph was granted thirty days from the date of the judgment to amend and/or supplement his rule to show cause to an ordinary proceeding for nullity; however, he did not do so.


source: Caselaw Access Project

author: JjLOLLEY, J.

license: Public Domain

text:
    SUCCESSION OF Annie Ruth Conley Cole BROWN. Connie Daniel Cole, Plaintiff-Appellant v. Maud C. Osborne and Karl L. Cole, Defendants-Appellees.
    No. 39,035-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Rehearing Denied Dec. 9, 2004.

      Connie Daniel Cole, In Proper Person.
    Cliffe Charles Laborde, III, Baton Rouge, for Appellees.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   JjLOLLEY, J.

In this contested will case, Connie Daniel Cole (“Connie”) appeals a judgment in the First Judicial District Court, Parish of Caddo, Louisiana, which refused to invalidate the last will and testament of Annie Ruth Conley Cole Brown (“Brown”). For the following reasons, we affirm.

FACTS

Brown executed her last will and testament (the “will”) on August 18, 1999 and died on September 7, 1999. In the will, Brown identified the following children as having been born of her marriage to Connie Dan Cole: Maud Osborne (“Maud”), Connie, Karl Cole (“Karl”), and Jason Cole (“Jason”). In the will, she further stated that no other children had been born to her and that she had not adopted anyone; however, it is undisputed that Jason was adopted. Brown’s will made specific bequests of immovable property to Jason and Connie, with the remainder of Brown’s property going to Maud and Karl.

In June 2000, Maud and Karl attempted to have the will executed and to have a judgment of possession entered. However, Connie refused to either accept or renounce his legacy, and over the next several years he was involved in a dispute with the other legatees over Brown’s succession. In January 2004, Karl, as executor of the succession, filed a rule to compel Connie to either accept or renounce his legacy, to compel assertion or dismissal of claims, and to compel relinquishment of certain succession property. Subsequently, the trial court held a hearing on the rule at which Connie appeared in proper person. Connie pointed out that Jason, contrar^to the provisions of the will, was adopted, and he questioned whether the error in the will could be evidence that Brown “could have not really known exactly what she was doing.” He also pointed out that Jason’s birth date in the will had been manually changed from 1974 to 1973, and that Brown had erroneously signed her name as “Annie R.R. Brown” in one instance in the will.

Opposing counsel pointed out that the will was in valid notarial form and that the introductory clause concerning the information on the children born of the marriage was “biographical information” that was not a necessary component of the will. Although opposing counsel recognized the somewhat “awkward state” he was in as the lawyer before whom the will was executed, he recalled that the changed birth date for Jason was made by the testatrix who, after reviewing the will, recognized that Jason was born in 1973 instead of 1974. It was acknowledged that Jason was an adopted child, but argued that the contrary statement was in a portion of the will that did not go to its validity. Finally, the additional “R” in Brown’s signature was acknowledged, but it was argued that the additional initial also did not go to the validity of the will.

After listening to what the trial court referred to as Mr. Cole’s “testimony,” the trial court stated that the will was self-proving and that the evidence presented was insufficient to successfully challenge the will. The trial court specifically noted that Brown seemed to have the presence of mind to correct a birth date. The trial court then required Connie to either |3accept or renounce his legacy. Connie accepted the legacy, but indicated that he wished to appeal the judgment, and this appeal ensued.

DISCUSSION

On appeal, Connie argues that the will should have been invalidated because of the error concerning Jason who, contrary to the will’s introductory clause, was not a child born of the marriage, but was an adopted child. Connie argues that Brown’s signing a testament “with the incorrect number and relationship to the parties suggests an abnormality or disordered reason or insanity....”

Initially, we note that the error concerning Jason is not, by itself, the kind of error that would invalidate a will. Brown obviously intended, through her will, to make a donation mortis causa by which she would dispose of all of her property. Brown had four children, one of whom was adopted, and she logically elected to divide her property among those children. She did so through a testament, properly executed, in a form authorized by law. Accordingly, the only way the erroneous statement in the introductory clause of the will could invalidate it would be if the statement constituted clear and convincing evidence that Brown lacked testamentary capacity.

All persons have capacity to make and receive donations mortis causa, except as expressly provided by law. La. C.C. art. 1470; In re Succession of Miller, 35,244 (La.App.2d Cir.12/07/01), 803 So.2d 1021, writ denied, 2002-0559 (La.04/26/02), 814 So.2d 560. To have capacity to make a donation mortis causa, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. La. C.C. art. 1477. There is a presumption in favor of mental capacity and a party alleging lack of capacity must overcome the presumption by clear and convincing evidence. Succession of Dodson, 27,969 (La.App.2d Cir.02/28/96), 669 So.2d 642. In will contest cases, the factual findings of the trial court are given great weight and will not be disturbed on appeal in the absence of manifest error. In re Succession of Davis, 35,217 (La.App.2d Cir.10/31/01), 799 So.2d 1194.

In Succession of Launius, 503 So.2d 682 (La.App. 3d Cir.1987), writ denied, 505 So.2d 62 (La.04/23/87), a testator’s daughter sought to annul the testator’s last will and testament for lack of testamentary capacity. The appellate court affirmed the trial court’s determination that the daughter failed to establish by clear and convincing evidence that the testator lacked capacity even though a psychiatrist, described by the court as the daughter’s most favorable witness, had stated that the testament showed signs of unsoundness of mind. The psychiatrist noted that the will referred to the testator’s sister as his “next of kin,” but that most people would consider their only child to be their nearest of kin. The psychiatrist indicated this was significant because the testator had carried on extended correspondence with his daughter and had expressed deep affection for her, but had failed to include her in his testament.

| ¡¡In the instant case, Brown included all of her children in her will and, as pointed out by the trial court, had the presence of mind to correct the erroneous birth date given for Jason in the will. Given these factual circumstances, we cannot conclude that the trial court was manifestly erroneous in finding that appellant failed to prove testamentary incapacity by clear and convincing evidence. Instead, we conclude the trial court’s decision is quite sound. Accordingly, the judgment of the trial court is affirmed at Connie Daniel Cole’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, CARAWAY, PEATROSS, DREW, and LOLLEY, JJ.

Rehearing denied.

      . Although the rule before the trial court also included a request for Connie’s relinquishment of certain immovable succession property, the trial court did not resolve that matter because counsel for the succession indicated a willingness to have a survey of the property made and to then further consider Connie’s position on that matter.


author: JjDREW, J.

text:
    STATE of Louisiana, Appellee v. Martha Elliott BRUCE, Appellant.
    No. 38,961-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Snell & Robinson, by Randall R. Robinson, Bossier City, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Jeffrey Stephen Cox, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, GASKINS and DREW, JJ.
   JjDREW, J.

The state originally charged defendant, Martha Elliott Bruce, with one count each of felony theft and forgery but later agreed to dismiss the forgery charge in exchange for defendant’s guilty plea to felony theft, a violation of La. R.S. 14:67 punishable by imprisonment for not more than ten years, with or without hard labor. The district court imposed a sentence of six years at hard labor and denied a timely motion for reconsideration. Defendant argues that her sentence is excessive. We affirm.

The matters of record show that between July 1999 and March 2003, defendant was the treasurer of the Asbury United Methodist Church. Each month she wrote unauthorized checks from the church’s account to pay her insurance premiums. She also wrote monthly unauthorized checks to herself from the church’s account. In most of these incidents, defendant forged her co-worker’s signatures on the checks. The total amount of the unauthorized checks was in excess of $79,000. Defendant, age 58 at the time of sentencing, claimed she perpetrated the scheme to pay her medical bills.

When, as here, a defendant’s motion for reconsideration urges merely that the sentence is excessive, she is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. White, 37,815 (La.App.2d Cir.12/17/03), 862 So.2d 1123.

| a A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158.

Prior to imposing sentence, the court considered a PSI report and the facts of the case. The court observed that the defendant had not shown any remorse and had never apologized nor accepted complete responsibility for her wrongdoing. Not a penny of restitution had been made.

In mitigation, the court noted defendant’s age, poor health, and lack of a juvenile or adult record. In aggravation, the. court found defendant had used her position of trust to facilitate the commission of the crime. The offense caused significant economic loss to the victim and involved multiple incidents for which separate charges could have been justified and separate sentences imposed.

We note two recent cases wherein six year sentences were imposed and affirmed:

• In State v. Lee, 37,143 (La.App.2d Cir.5/14/03), 847 So.2d 83, the 66-year-old defendant pled guilty to one count of felony theft, having embezzled $373,000 from her law firm employers over a period of six years. In affirming the six-year sentence, this court noted she had abused a position pf trust and engaged in an ongoing series of criminal acts which could have been punished separately. There was no restitution. That defendant had a gambling problem.
13* In State v. Armstrong, 557 So.2d 1160 (La.App. 2d Cir.1990) writ denied, 564 So.2d 320 (La.1990), the attorney, also a first offender, had stolen from several clients. Though charged with misappropriating $18,000, the actual dollar amount was far in excess of that sum. In affirming the six-year sentence, this court also noted the abuse of a position of trust.

On this record, we do not find constitutional error. Defendant was exposed to imprisonment for up to ten years but was sentenced to serve far less than that. The trial court carefully considered the facts and circumstances of this matter before imposing sentence. It is lawful and, under the unique circumstances of this case, is neither grossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. There is no showing of a manifest abuse of the district court’s discretion in the imposition of this mid-range sentence which is not constitutionally excessive.

The conviction and sentence are AFFIRMED.

      . Mid-five figures, according to the defendant; mid-six figures, according to the state.


author: LBROWN, C.J.

text:
    STATE of Louisiana, Appellee v. Terri Lynn HAMILTON, Appellant.
    No. 39,168-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Carey J. Ellis, III, Louisiana Appellate Project, for Appellant.
    Paul J. Carmouche, District Attorney, Tommy J. Johnson, Hugo A. Holland, Jr., Assistant District Attorneys, for Appellee.
    Before BROWN, C.J., and CARAWAY, and DREW, JJ.
   LBROWN, C.J.

The state initially charged defendant, Terri Lynn Hamilton, with second degree murder, but agreed to accept her guilty plea to one count of manslaughter, a violation of La. R.S. 14:31 punishable by imprisonment at hard labor for not more than 40 years. The court imposed a sentence of 12^ years at hard labor without benefit of parole, probation, or suspension of sentence and denied a timely motion for reconsideration. On appeal, defendant argues that her sentence is excessive. Because the applicable statutes do not provided for a denial of parole, we delete that portion denying the benefit of parole, and affirm as amended.

Discussion

The matters of record show that on April 6, 2002, defendant had an argument with the victim, Mary McKnight, at an apartment in West Shreveport. The victim and defendant were friends. The verbal altercation escalated into a struggle in which defendant shot the unarmed victim twice, once in the head and once in the chest. Autopsy results revealed that the victim was legally intoxicated and had cocaine metabolite in her blood at the time of her death. The trial court stated at sentencing that it was “somewhat at a loss as to what really happened, the circumstances causing this incident to take place and ultimately what really was the relationship that brought these two people together, other than two people who know each other.”

Whether a sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the 12seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.04/02/97), 691 So.2d 864.

A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158.

In the instant case, prior to imposing sentence, the court considered sentencing memoranda submitted by the state and the defense, as well as letters and statements from friends and family members of defendant and the victim. Defendant was 40 at the time of sentencing. She is a high school graduate with no criminal history and had what the district court termed a “substantial employment history.” The court also noted that defendant had played a principal role in raising her children.

We do not find constitutional error on this record. Defendant could have received life imprisonment under the original charge and up to 40 years on the reduced charge. Even if the events surrounding the offense occurred as reported by defendant, the killing of the unarmed victim was without justification or excuse. Defendant’s 12%-year sentence is neither 1 agrossly disproportionate to the severity of the offense of conviction nor is it shocking to our sense of justice. Thus, it is not constitutionally excessive.

La. R.S. 14:31 provides that a person convicted of manslaughter shall be imprisoned at hard labor for not more than 40 years. This provision does not contain a prohibition against parole, probation, or suspension of sentence. La. C. Cr. P. art. 890.1, however, allows the sentencing court to deny or place conditions on eligibility for diminution of sentence for good behavior. La. C. Cr. P. art. 893 further provides that the court shall not suspend the sentence of a person convicted of a crime of violence. Manslaughter is a crime of violence as defined in La. R.S. 14:2(13)(d). Therefore, the court correctly disallowed defendant the benefits of suspension of sentence and probation. The court erred, however, in ordering that defendant’s sentence be served without benefit of parole. Defendant’s sentence will therefore be amended to delete the prohibition against parole. See State v. Lowery, 33,584 (La. App.2d Cir.06/21/00), 765 So.2d 460; State v. Osborne, 00-0345 (La.App. 4th Cir.12/06/00), 775 So.2d 607, writ denied, 01-0315 (La.12/14/01), 803 So.2d 985.

Conclusion

Defendant’s sentence is amended to delete the prohibition against parole. As amended, the sentence is affirmed.


author: I t STEWART, J.

text:
    STATE of Louisiana, Appellee v. Gary Ray WALKER, Appellant.
    No. 39,152-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.
    Louisiana Appellate Project, by James E. Beal, Paula J. Marx, for Appellant.
    Paul J. Carmouche, District Attorney, J. Thomas Butler, Eugene W. Bryson, III, Assistant District Attorneys, for Appellee.
    Before STEWART, DREW and LOLLEY, JJ.
   I t STEWART, J.

The defendant, Gary Ray Walker, appeals his sentence and conviction as an habitual offender. For the following reasons, we affirm.

FACTS

The matters of record show that on Majr 27, 2000, a loss prevention officer at a Wal-Mart in Shreveport reported that the defendant was purchasing chemicals used to manufacture methamphetamine. A Caddo Parish sheriffs deputy, who knew that the defendant had a history involving drugs, went to the store. Materials and chemicals used to manufacture methamphetamine were in plain view in the defendant’s car. Upon his arrival at the car, the defendant was confronted by deputies. The defendant admitted that he was obtaining the materials to manufacture methamphetamine, and he named his accomplice. The defendant said that he was to be paid one-half ounce of the finished product for obtaining the supplies.

The defendant went to trial on the charge of attempt to manufacture a Schedule II controlled dangerous substance under La. R.S. 14:27(A) and R.S. 40:967(A)(1). A jury found the defendant guilty as charged. The state then filed an habitual offender bill, and the trial court adjudged the defendant to be a second habitual felony offender based on a prior conviction in August 1992 for production of marijuana. Prior to imposing sentence, the trial court considered the applicable sentencing range and noted that illicit drugs were “causing many problems in the community.” The trial court found that the defendant had a “serious substance abuse problem” and determined that the minimum habitual offender sentence was | ^sufficient. Thus, the trial court imposed the minimum mandatory sentence of 24 and 3/4 years at hard labor without benefit of probation or suspension of sentence and without good time credit. The trial court noted that the defendant would receive credit for time served and that he would be eligible for parole “as determined by law.” After the trial court denied various motions, including a motion to reconsider sentence, the defendant filed the instant appeal.

DISCUSSION

In his first assignment of error, the defendant asserts that his sentence is excessive and that the trial court failed to give sufficient consideration to mitigating factors.

In this case, the statutes of conviction, La. R.S. 14:27 and R.S. 40:967, as enacted at the time of the offense, provided for a maximum sentence of 49}£ years at hard labor without benefits. In addition, La. R.S. 15:529.1(A)(l)(a), applicable to second felony offenders, provided a sentencing range for a determinate term of not less than 24 and 3/4 years to not more than 99 years.

Since the habitual offender law is constitutional in its entirety, a minimum sentence imposed upon a recidivist is also presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Gay, 34,371 (La.App.2d Cir.4/4/01), 784 So.2d 714. However, in State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490, this court concluded as follows:

Although, in State v. Dorthey, 623 So.2d 1276 (La.1993), the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive.

It also has been held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so, the defendant must

clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances, this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

State v. Johnson, 709 So.2d at 676; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.4/4/03), 840 So.2d 1213.

Here, the defendant has not demonstrated that he is within this “exceptional” category. He is 57 years old. He has a criminal history which fills almost three pages of a pre-sentence investigation report. The report indicates that he actually is a third felony offender. The defendant has convictions for theft, attempted theft, public drunkenness, carrying a concealed weapon, possession of Schedule IV CDS, possession of marijuana, production of marijuana, and shoplifting. Moreover, he had a pending charge of attempted production of Schedule II CDS. Although the defendant worked in the oil field business for a substantial period of time, he now receives supplemental security income due to undescribed heart and |4kidney problems. The defendant admits using marijuana since 1990, and powder cocaine since 1995.

From our review of this record, we do not find constitutional error. The trial court imposed the minimum mandatory sentence. The sentence is lawful, and it is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. We find that the defendant has not shown an abuse of the trial court’s sentencing discretion. The sentence imposed is not constitutionally excessive.

In a second assignment of error, the defendant argues that he could not be adjudged a second habitual felony offender unless the matter was presented to a jury for decision. The defendant did not raise this issue in the lower court. New issues of law may not be asserted for the first time on appeal. State v. Green, 36,741 (La.App.2d Cir.3/5/03), 839 So.2d 970, writ denied, 03-0973 (La.11/7/03), 857 So.2d 517. Accordingly, we will not consider this assignment of error.

CONCLUSION

For the reasons stated in this opinion, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . The statute of conviction, at the time of the instant offense, required that the sentence be served without benefits, including the denial of parole eligibility.


author: I,MOORE, J.

text:
    Mary COLEMAN, et al., Plaintiff-Appellants v. Larry G. TOWNSEND, et al., Defendant-Appellees.
    No. 39,023-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2004.

      Anthony J. Bruscato, Monroe, for Appellant, Mary Coleman.
    Voorhies & Labbé by Cyd Sheree Page, Gary G. Osborne, Lafayette, for Appellees, Larry Townsend and Continental Ins.
    Tracy L. Oakley, for Safeway Ins. and Jeff Coleman, Sr.
    Sir Clyde Lain, II, Monroe, for Jeff Coleman, Sr.
    Before STEWART, CARAWAY and MOORE, JJ.
   I,MOORE, J.

Mary Coleman appeals a Monroe City Court judgment that dismissed her personal injury claims against two defendants, Larry Townsend and his insurer, Continental Insurance Company. Finding that the judgment is an uncertified partial final judgment pursuant to La. C.C.P. art. 1915 B, we dismiss the appeal without prejudice.

Ms. Coleman was a passenger in an Isuzu Trooper being driven by her husband, Jeff Coleman Jr. The Trooper was following a small pickup truck being driven by Jeff Jr.’s father, Jeff Coleman Sr. The two were part of a funeral cortege driving south on U.S. Hwy. 165 when Larry Townsend pulled out of a side street, Winnsboro Road, to cross Hwy. 165. Townsend had a green light and testified that because of the space in front of Jeff Sr.’s pickup, he thought the funeral procession was over. Townsend’s Chevy Cavalier struck the side of Jeff Sr.’s pickup truck; the impact pushed the pickup into Jeff Jr.’s Trooper, causing injuries to Ms. Coleman.

Ms. Coleman filed the instant suit (No. 2002-CV-01960) against Townsend, Jeff Sr., and their respective insurers. Later, the matter was consolidated with two other city court suits: Jeff Jr.’s suit against Townsend and his insurer (No. 2001-CV-02846), and Jeff Sr.’s suit against his own collision carrier, Safeway, and against Townsend and his insurer (No. 2002-CV-2095). With the exception of Jeff Sr.’s claim against Safeway, the parties submitted all claims for decision on January 29, 2003.

| ?,The city court filed a “judgment,” actually reasons for judgment, on February 13, 2004, finding that Jeff Sr. was solely at fault in causing the accident. By judgment dated March 23, 2004, the court dismissed all the plaintiffs’ claims against Townsend and his insurer, Continental. This appeal followed.

Partial judgments are regulated by La. C.C.P. art. 1915 B, which provides:

B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reeon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The instant judgment is only a partial judgment in that it dismisses Ms. Coleman’s claims against Townsend and his insurer but does not adjudicate her claims against the remaining defendants, Jeff Sr. and his insurer. Even reference to the February 13 “judgment,” which is actually an assignment of reasons for judgment, does not cure the problem. That document purports to hold Jeff Sr. liable, but neither it nor the later judgment awards any damages.

|3The partial judgment is not a final judgment for the purpose of an immediate appeal unless so designated by the trial court after an express determination that there is no just reason for delay. Banks v. State Farm Ins. Co., 30,868 (La.App. 2 Cir. 3/5/98), 708 So.2d 523. The instant judgment contains no such designation or express determination.

As this partial judgment cannot constitute a final for purposes of an immediate appeal, we are constrained to dismiss the appeal, without prejudice, at the appellant’s costs. Winnsboro State Bank & Tr. Co. v. Pepper, 31,862 (La.App. 2 Cir. 5/5/99), 743 So.2d 212; Brantley v. State Farm Ins. Co., 33,386 (La.App. 2 Cir. 5/10/00), 760 So.2d 603. The case is remanded to the city court for further proceedings, including but not limited to the rendition of a revised judgment in accord with La. C.C.P. art. 1915 B(2).

APPEAL DISMISSED WITHOUT PREJUDICE.

      . The Trooper was owned by Jeff Jr.'s mother, Beulah Coleman, who was separated from Jeff Sr. The Trooper was uninsured.

      . Despite the order of consolidation, the pleadings pertaining to 2001-CV-02846 and 2002-CV-2095 are not included in the instant record.


author: JjRICKETT, Judge.

text:
    Gloria MARTELLO v. CITY OF FERRIDAY, et al.
    No. 04-90.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2004.

      Linda Suzanna Harang, Law Offices of Linda S. Harang, LLC, Jefferson, Charles Shelby Norris, Jr., Attorney at Law, Vida-lia, Stephen B. Murray, Julie A. Jacobs, Murray Law Firm, New Orleans, LA, for Plaintiff/Appellant, Gloria Martello.
    Robert E. Kerrigan, Jr., Victor J. Franckiewicz, Jr., W. Clay McGehee, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendant/Appellee, U.S. Filter Waste Water Group, Inc.
    John P. Wolff, III, Stephen R. Wilson, Nancy B. Gilbert, Anthony P. Iannitelli, Keogh, Cox & Wilson, Ltd., Baton Rouge, LA, for Defendants/Appellees, Owen & White, Inc., Eugene H. Owen, Peter R. Hollis and Roy A. Waggenspack.
    Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   JjRICKETT, Judge.

FACTS

On October 25, 1999, Gloria Martello filed a Petition for Damages and for Class Certification against the City of Ferriday (the City), the engineering firm that designed the city’s water plant, Owen & White, Inc., and the manufacturer of the City’s water treatment plant, U.S. Filter Waste Water Group, Inc. (U.S. Filter), seeking damages resulting from the failure of the Ferriday water plant to supply safe water. The case was certified as a class action by the district court on July 25, 2001.

On July 27, 2001, the plaintiffs filed a Motion and Order for Leave to File a Superceding, Consolidated and Amending Petition. In the amended petition, the plaintiffs named as defendants Eugene H. Owen, Peter R. Hollis and Roy A. Wag-genspack, civil engineers employed by Owen & White, and involved in the design of the Ferriday water plant. The plaintiffs also alleged fraud against Owen & White and the three engineers. The defendants filed a suspensive appeal from the judgment certifying the class on August 9, 2001, which had the effect of staying all matters pertaining to the class action, in-eluding the motion to file an amended petition.

The class certification was affirmed by this court, and the Louisiana Supreme Court denied writs. See Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir. 3/6/02), 813 So.2d 467, writs denied, 02-1002 (La.6/7/02), 818 So.2d 769; 02-0990 (La.6/7/02), 818 So.2d 770; 02-1514 (La.6/7/02), 818 So.2d 771.

Following the denial of writs, the plaintiffs’ Motion to Amend the Petition was heard on August 20, 2002. The trial court issued Reasons for Judgment granting the plaintiffs’ motion on October 2, 2002. Owen & White and the three engineers were served with the amended petition on October 15, 2002. Thereafter, on November 20, | ¡>2002, defense counsel contacted the plaintiffs, seeking to settle the matter through mediation. On April 10, 2003, the parties attempted to mediate the case; however, after five months of negotiations, they were unable to settle the matter.

On April 25, 2003, Owen & White filed a Notice of Failure to Move for Certification. The defendants asserted that more than ninety days had passed since they received service of the plaintiffs amended petition that included a new allegation of fraud. They contended that pursuant to La.Code Civ.P. art. 592(A)(1), the plaintiffs were required to move to certify the fraud claim as a class action and requested a contradictory hearing for the purpose of determining whether the plaintiffs’ fraud claim could be certified as a class action. A hearing was held on the defendants’ motion to strike on June 30, 2003. On September 26, 2003, the trial court granted the defendants’ Motion to Strike and dismissed the fraud allegations and the three engineers named as defendants from the class action proceedings. It is from this judgment the plaintiffs appeal.

ASSIGNMENTS OF ERROR

1. The plaintiffs (appellants) timely filed a motion for certification, as required by the Code. Therefore, the trial court erred in holding that the plaintiffs (appellants) have to file another motion to add a fraud claim to the already certified case against parties who, according to the district court, “have been fully aware of these proceedings from the outset ”. (emphasis in original)

2. The plaintiffs (appellants) had good cause for not filing a second motion to certify the fraud claim, because the case was already certified as a class action against the parties toward whom the fraud claim was being directed. Therefore, the trial judge erred in dismissing the class-wide allegations of fraud against Owen & White and the three engineers based on a strict application of the “90-day rule”.

J¿DISCUSSION

In their first assignment of error, the appellants argue that the trial court erred in dismissing their fraud claim and the three engineers from the class action proceeding on the grounds that they failed to timely file a second motion to certify. The issue before us is whether, under the provisions of La.Code Civ.P. art. 592(A)(1), additional hearings for certification are necessary when a plaintiff adds new defendants and claims to a class action that has been previously certified. This issue has not previously been addressed by a Louisiana court.

The Louisiana Code of Civil Procedure provides for class actions, setting forth guidelines for class certification in Articles 591 through 597. One of the fundamental objectives of a class action is to achieve economy of time, effort and expense. McCastle v. Rollins Envtl. Serv. of Louisiana, Inc., 456 So.2d 612 (La.1984). Louisiana Code of Civil Procedure Article 592(A)(1) provides:

Within ninety days after service on all adverse parties of the initial pleading demanding relief on behalf of or against a class, the proponent of the class shall file a motion to certify the action as a class action. The delay for filing the motion may be extended by stipulation of the parties or on motion for good cause show.

Louisiana Code Civil Procedure Article 592(A)(3)(c) provides:

In the process of class certification, or at any time thereafter, before a decision of the merits of the common issues, the court may restrict, or otherwise redefine the constituency of the class or the issues to be maintained in the class action.

(Emphasis added.)

It is not uncommon for an initial petition in a class action to be amended, sometimes several times, prior to a determination on the merits. Louisiana Code of Civil Procedure Article 592(A)(1) does not require that a new certification hearing be requested each time a petition is amended, either to add an additional defendant |4or to set forth a new cause of action. The clear wording of Article 592(A)(1) requires that a motion to certify the action as a class action must be filed “within ninety days after service on all adverse parties of the initial pleading....” The initial pleading in this matter is the Original Petition filed October 25, 1999. A Motion to Certify that action as a class action was timely filed on January 24, 2000.

As there is no codal provision that requires a new certification hearing when a previously certified class suit is amended, the trial court erred in dismissing the plaintiffs’ fraud claim and the three engineers from the class action suit.

Because we find Article 592(A)(1) does not require a new motion to certify when an initial petition is amended, the plaintiffs’ second assignment of error is moot.

DECREE

The trial court erred in dismissing the plaintiffs’ fraud claim and in dismissing Eugene H. Owen, Peter R. Hollis and Roy A. Waggenspack from the class action suit. The judgment of the trial court is reversed and remanded. The costs of this appeal are to be borne by the defendants-appel-lees.

REVERSED AND REMANDED.


author: hMAX N. TOBIAS, JR., Judge.

text:
    Pamela Noel Godfrey CALI, Individually and as Natural Tutrix for her Minor Child, Cassidy Grace Cali v. Denacua CORY, National Automotive Insurance Company, State Farm Mutual Automobile Insurance Company and State Farm Fire and Casualty Insurance Company.
    No. 2004-C-1227.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 3, 2004.
    Rehearing Denied Nov. 30, 2004.

      Nat G. Kiefer, Jr., Kris P. Kiefer, Kiefer & Kiefer, Metairie, LA, for Plaintiffs/Respondents.
    Charles C. Foti, Jr., Attorney General of Louisiana, David P. Bains, Assistant Attorney General, Louisiana Department of Justice, Litigation Division, New Orleans, LA, for Defendant, State of Louisiana Through the Department of Transportation and Development.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR.)
   hMAX N. TOBIAS, JR., Judge.

We grant the application for supervisory writs of review filed by the State of Louisiana, through the Department of Transportation and Development (“DOTD”), to review a trial court judgment interpreting La. R.S. 13:5107 D. For the following reasons, we affirm.

On 10 March 2000, Pamela Noel Godfrey Cali (“Ms. Cali”), individually and as natural tutrix for her minor child, Cassidy Grace Cali, filed suit for survival damages and the wrongful death of Michael Thomas Cali (“Mr. Cali”). Mr. Cali had died in an automobile/ motorcycle accident on 30 October 1999. Ms. Cali initially named as defendants Denacua Cory, the driver of the automobile that is alleged to have failed to yield the right of way to Mr. Cali and struck his motorcycle; Denacua Cory’s insurer, National Automotive Insurance Company; State Farm Mutual Automobile Insurance Company, Mr. Cali’s uninsured/ underinsured carrier; and State Farm Fire and Casualty Insurance Company, as the excess umbrella carrier of Mr. Cali.

|2On 25 October 2000, Ms. Cali filed a supplemental and amending petition adding the City of New Orleans, Joe’s Bicycle & Lawnmower Shop, Inc., Dixie Brewing Company, Inc., and DOTD as defendants. However, Ms. Cali did not request service of the supplemental and amending petition on DOTD until more than 90 days after the filing thereof. DOTD filed an exception seeking dismissal of Ms. Cali’s suit, asserting untimely service, and citing as authority for the dismissal, La. R.S. 13:5107 D; Ms. Cali voluntarily dismissed DOTD without prejudice rather than contesting the issue. DOTD did not object to the voluntary dismissal. On 16 October 2002, Ms. Cali again added DOTD as a party defendant by means of a fourth supplemental and amending petition and she requested service. Service thereof was made within 90 days as required by La. R.S. 13:5107 D. To this fourth supplemental and amended petition, DOTD filed new exceptions of untimely service (asserting the failure to request service upon DOTD within 90 days of initially [i.e., on 25 October 2000] naming it as a defendant) and, alternatively, prescription (asserting DOTD was initially dismissed following a contradictory motion). The trial court denied both exceptions. From this judgment, DOTD files its application asserting the trial court erred in not dismissing Ms. Cali’s suit against it.

The relevant provision of our law applicable to this case is La. R.S. 13:5107 D, which states:

13P. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action or the filing of a supplemental or amended petition which initially names the state, a state agency, or political subdivision or any officer or employee thereof as a party. This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within that period, the action shall be dismissed without prejudice, after contradictory
motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, who has not been served.

(3) When the state, a state agency, or a political subdivision, or any officer or employee thereof, is dismissed as a party pursuant to this Section, the filing of the action, even as against other defendants, shall not interrupt or suspend the running of prescription as to the state, state agency, or political subdivision, or any officer or employee thereof; however, the effect of interruption of prescription as to other persons shall continue. [Emphasis supplied.]

DOTD asserts that because it was dismissed initially for failure to serve it within 90 days of the filing of the original supplemental and amending petition, prescription continued to run against it; therefore, when Ms. Cali filed the fourth ^supplemental and amending petition, prescription had run and DOTD must now be dismissed.

Ms. Cali asserts, however, that DOTD is jointly liable with the other alleged tortfea-sors. Therefore she claims, under La. C.C. art. 2324 C, suit against one tortfea-sor interrupted the prescriptive period against all jointly liable tortfeasors. Consequently, Ms. Cali asserts that the fourth supplemental and amending petition relates back to the filing of her initial suit and is timely, and the original supplemental amending petition is of no moment because she voluntarily dismissed it without prejudice and without objection from DOTD.

In its entirety, La. C.C. art. 2324 states:

A. He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.
B. If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tortfeasor shall not be liable for more than his degree of fault and shall not be solidarily liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in > R.S. 23:1032, or that the other person’s identity is not known or reasonably ascertainable.
C. Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. [Emphasis supplied.]

We hold that La. R.S. 13:5107 D and La. C.C. art. 2324 must be read in pari mate-ria. Our review of Ms. Cali’s petition as supplemented and amended asserts a claim of joint liability between DOTD and other tortfeasors. La. C.C. art. 2324A and B specifically makes the alleged tortfea-sors in this case jointly liable, not solidary. We agree with DOTD that the dismissal without prejudice of the initial | ¡^supplemental and amending petition did not interrupt prescription against it. However, we do not construe La. R.S. 13:5107 D so narrowly as to find that a plaintiff may not thereafter reassert a claim against the state, a state agency, a political subdivision, or employee or officer thereof. As long as prescription is interrupted against one joint tortfeasor, it is interrupted against all. See, La. Const. art. XII, § 10; Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978), and its progeny. We agree with the trial court that the fourth supplemental and amending petition related back to the original filing date of the petition on 10 March 2000 and was timely served within 90 days of its filing. We find no language in La. R.S. 13:5107 whereby the legislature intended to exclude the state, state agencies, et cetera, from the provisions of La. C.C. 2324 C. Ms. Cali in her fourth supplemental and amending petition alleges DOTD is a joint tortfeasor; La. C.C. art. 2324C says that interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors. In this case, the filing of the original suit against one joint tortfeasor interrupted prescription against all joint tortfeasors; DOTD is now alleged to be one of those joint tortfeasors. At the trial of the merits of the plaintiffs case the liability of DOTD will be determined and at that point whether DOTD is jointly liable with any other person will be ascertained.

For the foregoing reasons, we affirm the judgment of the trial court.

WRIT GRANTED; JUDGMENT AFFIRMED.

      . La. R.S. 13:5107 D is similar to La. C.C.P. art 1201, a general law requiring service upon a defendant. La. C.C.P. art. 1201 states:
      A. Citation and service thereof are essential in all civil actions except summary and executory proceedings, divorce actions under Civil Code Article 102, and proceedings under the Children’s Code. Without them all proceedings are absolutely null.
      B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
      C.Service of the citation shall be requested on. all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.
      However, we note that La. R.S. 13:5107 D is a special law that applies to the state and state agencies; it controls in the case at bar over La. C.C.P. art. 1201.

      . A dismissal of a claim without prejudice is by its very nature a determination that the claim is as if never made, especially so when the person asserting the claim voluntarily dismisses it. La. C.C.P. art. 1673


author: I,AMY, Judge.

text:
    VINTAGE WINGS & THINGS, LLC v. TOCE & DAIY, LLC.
    No. 04-706.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Andre F. Toce, Michael G. Daiy, Toce & Daiy, LLC, Lafayette, LA, for Defendant/Appellee, Toce & Daiy, LLC.
    D. Reardon Stanford, Hoyt, Hodge & Stanford, LLC, Lafayette, LA, for Plaintiff/Appellant, Vintage Wings & Things, LLC.
    Court composed of BILLIE COLOMBARO WOODARD, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   I,AMY, Judge.

The plaintiff filed suit against the defendant law firm, seeking payment for charter flights taken on one of the plaintiffs aircraft. The trial court granted an involuntary dismissal at the close of the plaintiffs case finding that the plaintiff failed to meet its burden of proof. The plaintiff appeals. The defendant answers the appeal seeking damages for frivolous appeal. For the following reasons, we affirm the judgment of the trial court and deny the claim for frivolous appeal.

Factual and Procedural Background

The plaintiff in this matter, Vintage Wings & Things, owns aircraft available for charter. At the time of the events in question in this suit, Vintage Wings was owned wholly by David Jeansonne. At issue are two flights taken on a Lear jet owned by Vintage Wings. The record establishes that, for purposes of chartering the Lear, Vintage Wings entered into a charter management relationship with Million Air Dallas. As part of this relationship, arrangements for charters were made through Million Air, which would then invoice the party responsible for the charter. According to Vintage Wings bookkeeper Valerie Broussard, a percentage of the charter fee would then be forwarded to Vintage Wings.

Vintage Wings filed a Petition on Open Account in November 2001, asserting that the law firm of Toce & Daiy “maintained an open account with petitioner for services rendered and/or goods sold and delivered relative to flights being booked through Vintage Wings & Things, LLC and incurred charges in the amount of $40,435.55.” It alleged that this outstanding balance had not been paid.

The record establishes that the outstanding figure related to two flights taken by an attorney of Toce & Daiy, Andre’ Toce. One flight, in January 2001, involved La trip from Aspen, Colorado, to Lafayette. The other flight involved a February 2001 trip from Houston, Texas, to Santa Rosa, California, along with a return trip. There is no dispute that Mr. Toce took the flights at issue. Several issues, however, are in dispute.

The central issue in this case is whether payment was expected for the two chartered flights. The defendant contends that these flights were provided by Mr. Jeansonne to Mr. Toce due to his two million dollar, investment in one of Mr. Jeansonne’s other businesses. Mr. Toce also contends that, at the time of the flights in question, Mr. Jeansonne was soliciting Mr. Toce’s purchase of the Lear. Due to Mr. Jeansonne’s death subsequent to the flights in question, the record contains no indication from him as to the nature of the flights. Finally, Toce & Daiy observes that it is the named defendant. However, it contends that the flights at issue were not firm-related, but that the flights were taken for Mr. Toce’s personal use.

The matter proceeded to a bench trial. After the close of the plaintiffs case, the defendant moved for an involuntary dismissal. The motion was granted by the trial court.

The plaintiff appeals, assigning the following as error:

1. Business records are an exception to the hearsay rule. Because the exception does not require that the business maintaining the records, and seeking their introduction into evidence, also be the business which prepared or generated the records, it was error for the Court to limit the admission of PL-9 (the invoice for the January flight) and PL-11 (the Owner Statement summaries);
|a2. Appellant established that the Defendant had a history of chartering Appellant’s aircraft, that the flights at issue had been taken by Defendant, properly invoiced, the sum of the invoice, and that they had not been paid by Defendant, and therefore the Court erred in granting Defendant’s motion for involuntary dismissal as Plaintiff had established grounds for relief.

The defendant answered the appeal, seeking damages for frivolous appeal.

Discussion

Business Records Exception

At issue in this assignment is the introduction of two exhibits, an invoice for one of the flights in question and a “December 2000 Owner’s Statement Summary.” The record indicates that both pieces of evidence were generated by Million Air. As no Million Air representative testified at trial, the plaintiff attempted to introduce the contents of the exhibits through the business records exception to the hearsay rule. See La.Code Evid. art. 803(6). Because the records were not generated by Vintage Wings, the trial court admitted the exhibits for the limited purpose of evidencing the information received by Vintage Wings. The plaintiff asserts that the trial court erred in finding that the “custodian” testifying as to the nature of the business records must be from the business generating the documents. The plaintiff points to federal jurisprudence related to the similarly worded Fed.R.Evid. 803(6), which it asserts indicates that the business having custody of the records does not have to be the company creating them for their introduction. See U.S. v. Duncan, 919 F.2d 981 (5th Cir.1990), cert. denied, 500 U.S. 926, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991); U.S. v. Veytia-Bravo, 603 F.2d 1187 (5th Cir.1979), cert. denied, 444 U.S. 1024, 100 S.Ct. 686, 62 L.Ed.2d 658 (1980). Rather, the plaintiff contends, it is the reliability of the documents at issue which must be examined by the trial court.

|4The Louisiana Code of Evidence defines hearsay as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C). The business records exception to the hearsay rule is contained in Louisiana Code of Evidence Article 803, which provides, in part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness;
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

In support of its case, the plaintiff presented the testimony of Valerie Broussard, in her role as bookkeeper for Vintage Wings. Ms. Broussard explained she was responsible for maintaining the business’ accounts receivable and accounts payable. The plaintiff attempted to introduce the exhibits at issue during her testimony. With regard to the invoices, Ms. Broussard explained that Million Air provided an “owner’s statement” each month detailing the Lear’s flights, and | ¿indicating the money to be received by Vintage Wings given the hours billed for charter bookings and associated maintenance expenses. If Vintage Wings had particular need for an invoice, Million Air would be contacted and an invoice forwarded. One such invoice and an “owner’s statement summary” became the focus of the hearsay objection.

The federal jurisprudence referenced by the plaintiff does, indeed, indicate that the Fifth Circuit has held that the party introducing a “business record” does not necessarily have to also present the testimony of the person creating/maintaining the record. See Veytia-Bravo, 603 F.2d 1187, (wherein the Fifth Circuit permitted the Bureau of Alcohol, Tobacco, and Firearms to introduce the records of a firearms dealer which were maintained in compliance with federal guidelines and regulations). Neither does the “custodian” as is used under the federal rule have to be the business responsible for generating them. See Duncan, 919 F.2d 981, (wherein the Fifth Circuit affirmed a trial court’s determination that medical records kept as business records of a hospital could be included in the records of an insurance company. The insurance company’s records were appropriately authenticated).

The present matter differs from those advanced by the plaintiff. First, in those cases, the Fifth Circuit was reviewing cases in which the trial courts accepted the evidence, ruling the documents trustworthy under the dictates of Fed.R.Evid. 803(6). Importantly, the Fifth Circuit noted in those cases that a trial court ruling on admissibility pursuant to Fed.R.Evid. 803(6) is entitled to broad discretion. See Duncan, 919 F.2d 981; Veytia-Bravo, 603 F.2d 1187. In the present case the trial court excluded the full introduction of the documents.

| ^Furthermore, the type of documents at issue in those cases are arguably of a more “trustworthy” nature than those at issue here, i.e., documents in the custody of the federal government and maintained according to federal regulations as in Vey-tia-Bravo or medical records maintained pursuant to the treatment of patients as in Duncan. In the instant case, however, the reliability of the contents of the documents was the very controversy at issue at trial, insofar as Toce & Daiy was listed as the responsible party. Given the circumstances of the present case, we do not find that the trial court abused its discretion in refusing to permit the introduction of the documents for all purposes. We note that the trial court permitted the documents insofar as they evidenced what information regarding the charter flights was available to the plaintiff.

Finally, we note that, much of the information available in the documents was available through other sources as it became apparent at trial that there was no question as to whether Mr. Toce had taken the flights at issue. Rather, the case focused on whether Toce & Daiy was appropriately billed.

Open Account

Next, the plaintiff questions the trial court’s involuntary dismissal of its claim. In particular, it questions the trial court’s determination that Toce & Daiy were regular customers of both Million Air and Vintage Wings, but that the two trips at issue in the case were attributable to Mr. Toce personally rather than to Toce & Daiy. Further, the plaintiff questions the trial court’s determination that those flights were provided to Mr. Toce as a business incentive from Mr. Jeansonne.

17This case was styled as one for recovery for claims due on an open account. Louisiana Revised Statutes 9:2781 presently provides as follows with regard to recovery on an open account:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant....
D. For purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. “Open account” shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

Considerations as to whether an open account exists were recited by a panel of this court in Broussard v. Guilbeaux, 93-1353 (La.App. 3 Cir. 5/4/94), 640 So.2d 509, a case referenced by the trial court. The court in Broussard noted that, among the factors to be considered are whether the parties have previously engaged in business transactions, whether a line of credit was extended by one of the parties, whether there are ongoing transactions, and whether there is the prospect of future transactions. Id. Furthermore, as a basic consideration, for there to be an action on an open account there must be an underlying contract which gives rise to the debt. Bieber-Guillory v. Aswell, 98-559 (La. App. 3 Cir. 12/30/98), 723 So.2d 1145.

This matter is on appeal following the granting of a motion for involuntary dismissal. The mechanism for involuntary dismissal is provided by La. Code Civ.P. art. 1672, which provides, in part:

[rB. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

In considering a motion for involuntary dismissal, the trial court must consider the plaintiffs presentation of evidence and dismiss the matter if the evidence is found insufficient to establish the plaintiffs case by a preponderance of the evidence. Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271. On appeal, a trial court’s determination to grant an involuntary dismissal is reviewed for manifest error. Id.

The trial court’s reasons for ruling reveal a finding that the plaintiff lacked evidence regarding the existence of a meeting of the minds as to the chartered flights. The trial court explained, in part:

Beyond that the testimony clearly reveals that there may not have been a clear meeting of the minds as to these two invoices, because the two witnesses, Mr. Zaunbrecher and Mr. Vega, clearly testified that they received, as a result of their investments, which were an eighth of the investment made by Mr. Toce personally, free flights on this jet. Mr. Zaunbrecher never took advantage of the jet. He did take advantage of some other flights. Mr. Vega did take advantage on several occasions.
The bookkeeper, Ms. Broussard, testified that it was Mr. Jeansonne’s habit to “comp” flights on the jet to people that he thought were beneficial to the business. He did it as a good business relationship. There’s some evidence that he was reimbursed for that. That’s neither here nor there in this case. I think it’s absolutely clear that Mr. Vega heard Mr. Jeansonne offer the jet to Mr. Toce. Mr. Zaunbrecher heard Mr. Jean-sonne say he was courting — both of these witnesses testified that Mr. Jean-sonne intended to let Mr. Toce use the jet, and actually offered the jet to him. Ms. Broussard admitted that it was his policy to do that. Now, she was of the impression that there were no free flights, because she was always notified before there was a free flight. She testified that she was instructed that after a certain date, December, before these two flights, that there would be no more “comp” flights for Mr. Toce. But what’s missing, a hug[e] gap in this case that makes no sense to this court is that there’s no evidence | whatsoever that Mr. Toce ever got a free flight. I think that’s consistent with all the other facts in this case.
Toce and Daiy were customers of Million Air and Vintage. The evidence shows that they took many flights, they paid for them. In fact, two of the four invoices that remained when Mr. Hoyt took over as succession representative were paid. Those were business of the law firm related flights, as far as I could tell from the evidence. The two that were not paid were personal. One was a family trip to Aspen. The other was described as a personal business trip to California. It seems to me that if a person is offered free use of the jet, No. 1, he’s going to take it. He’s going to take you up on it. And, No. 2, he’s not going to take you up for business reasons, because that gets paid from another source. He’s going to take you up on it on personal trips.
I believe that there was a failure of the meeting of the minds between Million Air, Vintage and Mr. Toce regarding the nature of those two trips. I think those were his free trips that he was offered and promised by Mr. Jean-sonne. Otherwise, it doesn’t make sense, if he was offered in October of 2000, that he would not have taken any of these trips by December or January.
So, I’m going to rule that the plaintiff, although valiant effort was made with the evidence available, has failed to make a prima facie case on open account. ...
... I think that Million Air was under the impression somehow that these were not free flights, but I believe that these were, but more importantly, I believe that the accuracy of the invoices — if Million Air had been here, perhaps they could have told us, “No, these were definitely not free flights.” I don’t think Ms. Broussard can say, because it has been shown that- she didn’t always — she thought she was always notified. Mr. Jeansonne was not here to tell us for sure whether she was always notified. He’s the only one that can say for sure.
So, I’m going to take the view that Mr. Toce was due some free flights. He took them. He was charged for them, mistakenly, No. 1. No. 2, even if that wasn’t so, Vintage has not proved an open account of its own against Toce and Daiy.

Our review of the record reveals support for the trial court’s granting of the motion for involuntary dismissal.

Given the plaintiffs evidence and the trial court’s determinations, this case presents several problems for recovery by the plaintiff. First, suit was filed by | inVintage Wings against the firm of Toce & Daiy. However, the billing information relied upon by the plaintiff for the claims stemmed not from the plaintiff, but from another company, Million Air. Furthermore, the trial court questioned the accuracy of the naming of the firm as the party responsible for the charter, and accepted the defendant’s version of events. Specifically, Mr. Toce testified that the two flights at issue were personal in nature, not flights for which the firm was responsible. This type of credibility determination is one best left to the trier of fact. Parish Nat. Bank v. Ott, 02-1562 (La.2/25/03), 841 So.2d 749. Furthermore, evidence exists in the record supporting the finding that the flights were intended to be gratuitous ones donated to Mr. Toce, either as recognition for a two million dollar investment in Mr. Jeansonne’s company or as enticement to purchase the aircraft. In addition to Mr. Toce’s testimony in this regard, the defendant called two witnesses out of order during the plaintiffs case who corroborated this version of events. These witnesses, who were also investors in Mr. Jeansonne’s company, explained that they had also been offered complimentary flights on Mr. Jeansonne’s aircraft. In fact, one of the witnesses explained that he was present during a conversation in which the aircraft was offered to Mr. Toce. Again, the trial court was free to accept this version of events. Although the plaintiff presented testimony from Ms. Brous-sard that she had not been notified that these flights were to be provided free of charge to Mr. Toce, her lack of knowledge of an arrangement made by Mr. Jeansonne did not require a finding that no such arrangement existed.

In Given the support for the trial court’s determination in the record, this assignment lacks merit.

Frivolous Appeal

The defendant has answered the appeal, seeking damages for frivolous appeal. Louisiana Code of Civil Procedure Article 2164 indicates that: “The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.” The Louisiana Supreme Court has explained that damages under Article 2164 are warranted only in the event that the appeal was taken only for purposes of delay or that appellate counsel is not sincere in the belief of the view he or she advances on appeal. Hampton v. Greenfield, 618 So.2d 859 (La.1993). Although we have found no merit in the plaintiffs position, there is no indication in the record that the above requirements for frivolous appeal are present. Accordingly, we deny the defendant’s request for damages in this regard.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff, Vintage Wings & Things, LLC.

AFFIRMED.

      . Mr. Toce explained that his professional law corporation, Andre Toce, PLC, is a member of Toce & Daiy, LLC.

      . The originating trip, from Lafayette to Aspen, was also taken by Mr. Toce, but was paid for through the law firm. Mr. Toce explained that the payment was in error. It is the flight from Aspen to Lafayette which remains unpaid. The plaintiff contends that payment for the originating flight by the firm renders the trial court’s determinations regarding Mr. Toce's personal use of the plane inconsistent. We disagree. The trial court was free to accept that payment was in error as testified to by Mr. Toce.

      . This witness, Burtin Zaunbrecher, testified that he attended an October 31, 2000 meeting at which Mr. Toce inquired if he could use Mr. Jeansonne’s jet to take his family to Colorado. Mr. Zaunbrecher explained that Mr. Jeansonne responded: " 'If you put $2,000,000.00 in my company, you can certainly use my jet.’ " In responding to further questioning by Mr. Toce, Mr. Zaunbrecher explained: "He was soliciting selling the jet or the other aircraft to you. But he primarily wanted to sell the jet as soon as he could.”


author: 11 SULLIVAN, Judge.

text:
    Frank HICKS v. Gervis TEZENO.
    No. 2004-720.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Frank Hicks, in Proper Person, Melville, LA, Plaintiff/Appellant.
    Gervis Tezeno, in Proper Person, Melville, LA, Defendant/Appellee.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

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

   11 SULLIVAN, Judge.

Frank Hicks appeals the dismissal of his workers’ compensation claim for failure to prosecute. For the following reasons, we reverse and remand.

Procedural History

On October 15, 2003, Mr. Hicks, through his attorney, Michael B. Miller, filed a disputed claim for compensation, alleging that he was injured on July 18, 2003, while working as a cement finisher for Gervis Tezeno. On November 11, 2003, Mr. Miller, on behalf of Mr. Hicks, attempted to participate by telephone in a mediation conference, but the conference was not held because Mr. Tezeno failed to appear. A second conference was scheduled for January 5, 2004, at which time Mr. Miller again attempted to participate by telephone. Noting that Mr. Tezeno failed to appear for the second time even though his correct address was on file, the mediator indicated that, in further proceedings, a fine should be assessed against the employer for his failure to participate.

On January 13, 2004, Mr. Miller filed a motion to withdraw as counsel of record, alleging that a conflict had arisen between him and Mr. Hicks. The motion was granted that same day. On January 21, 2004, the workers’ compensation judge (WCJ), on her own motion, filed a rule to show cause why the claim should not be dismissed for failure to prosecute, although the rule did not state the basis for its filing. When Mr. Hicks did not appear for the hearing on the rule, on March 5, 2004, the WCJ dismissed his claim by written order signed March 9, 2004. The order stated that the dismissal was without prejudice and that the claimant had the right to have the action reinstated within thirty days, for good cause shown. Mr. Hicks did not seek reinstatement before the WCJ within thirty days, but instead filed the instant appeal 12on April 7, 2004. In his handwritten pro se brief, Mr. Hicks apparently seeks reinstatement of his claim, although he does not specify any assignments of error.

Opinion

Under Uniform Rules — Courts of Appeal, Rule 1-3, appellate courts are to “review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise.” Although Mr. Hicks does not raise any assignments of error, his pro se brief, at least by implication, seeks reinstatement of his claim. For purposes of this opinion, we will treat the dismissal of his suit as an assignment of error. We also find, for the reasons discussed below, that the interests of justice dictate that we examine the circumstances surrounding the dismissal of his claim.

We first note that the WCJ’s rule to show cause does not state the basis upon which it seeks dismissal for non-prosecution. However, at the hearing on the rule, the WCJ alluded to the claimant’s failure to obtain service on the employer. The written order of dismissal refers to Mr. Hicks’ failure to appear at the March 5, 2004 hearing, as well as “the administrative rules of this office,” as grounds for dismissal.

The Office of Workers’ Compensation Hearing Rule 5705 (emphasis added) provides in part:

Section 5705. Abandonment
A. A claim may be dismissed by an ex parte order of the judge for lack of prosecution for the following reasons:
(.1) Where no service of process and/or mediation has occurred within sixty (60) days after the Form LDOL-WC-1008 has been filed;
(2) Where no responsive pleadings have been filed and no default has been entered within sixty (60) days after service of process;
la(3) Where a claim has been pending six (6) months without proceedings being taken within such period. This provision shall not apply if the claim is awaiting action by the workers’ compensation court; or
(If) Where a party fails to appear for a properly noticed conference or trial.
C. Dismissal under this Rule shall be without prejudice. Any order of dismissal shall allow for reinstatement of the action within thirty (30) days for good cause shown.
D. The failure of an attorney or pro se litigant to keep the workers’ compensation court apprised of an address change may be considered cause for dismissal for failure to prosecute when a notice is returned to a party or the workers’ compensation court for the reason of an incorrect address and no correction is made to the address for a period of thirty (30) days.

In Piper v. Shakti, Inc., 02-1010 (La.App. 3 Cir. 10/1/03), 856 So.2d 144, this court held that the record did not support the dismissal of a claim for failure to attend a mediation conference, where the record did not demonstrate that the conference was “properly noticed” as required by Hearing Rule 5704(A)(4). See also Bellard v. Seale Guest House, 02-355 (La. App. 3 Cir. 10/30/02), 829 So.2d 1080, in which we remanded for a determination of whether the claimant received proper notice of a pre-trial conference, where his failure to attend that conference was the reason his initial suit was dismissed. Similarly, in the present case, the record does not indicate whether Mr. Hicks was notified of the March 5, 2004 hearing. Accordingly, we find that his failure to attend that hearing is insufficient to support the dismissal of his claim, to the extent that the order of dismissal mentions this as a basis for the dismissal.

[4The order also states that the dismissal is “pursuant to the administrative rules of this office.” Neither the rule to show cause nor the order of dismissal references Hearing Rule 5705(A)(1), but, at the hearing on rule, the WCJ noted the inability to obtain service on the employer and the lapse of “a period in excess of that allowed by our rules.” The order of dismissal stated that the claim could be reinstated within thirty days for good cause shown. It was accompanied by a notice of judgment informing the parties of their right to file a suspensive appeal within thirty days or a devolutive appeal within sixty days. Mr. Hicks did not seek reinstatement of his claim, but rather filed an appeal to this court.

Mr. Hicks filed a three-page, handwritten brief in this court, generally asking for someone to help him, but without reference to the case’s procedural history. As in Loring v. Trans Gulf, 95-785, p. 4, n. 1 (La.App. 5 Cir. 1/30/96), 668 So.2d 1297, 1298, it would appear from this brief that Mr. Hicks “does not fully understand what has transpired in his case, proeedurally” and is “in need of counsel to represent him.” The record reflects that Mr. Hicks was represented by counsel for approximately three months, during which time two mediation conferences were cancelled because the Defendant failed to appear. The WCJ’s rule to show cause why the case should not be dismissed for failure to prosecute was filed less than two weeks after Mr. Hicks’ counsel withdrew from the case, and the rule did not state the reason why the case was subject to dismissal for non-prosecution. Further, the record does not reflect that Mr. Hicks received a copy of the rule. The record does show that he received a copy of the order of dismissal, informing him that the case could be reinstated within thirty days for good cause shown, and a copy of the notice of judgment, informing him of the appellate delays for appeal to this court.

| sBecause Mr. Hicks did not seek reinstatement in the Office of Workers’ Compensation, the issue of “good cause” was never submitted to the WCJ. However, given the unrepresented claimant’s limited understanding of these proceedings, we find the interests of justice require that we consider this issue. We further find that the record does support reinstatement for good cause, given that the claimant was initially represented by counsel, who had attempted mediation twice, and that the rule for dismissal was filed so soon after the claimant’s counsel withdrew from the case.

Decree

For the above reasons, the judgment of Office of Workers’ Compensation dismissing Mr. Hicks’ suit is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.