text:
    STATE of Louisiana v. Glenn L. MORGAN.
    No. 2002-KP-0621.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Morgan, Glenn L.;—Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. G, No. 00-004277; to the Court of Appeal, First Circuit, No. 2001 KW 2252.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Robert GATLIN.
    No. 2002-KO-0207.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Gatlin, Robert;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 00-F0108; to the Court of Appeal, Second Circuit, No. 35,420-KA.

Denied.


text:
    STATE of Louisiana v. Wayne GORDON.
    No. 2002-KO-0209.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Gordon, Wayne;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, Nos. 98-0213, 97-7363; to the Court of Appeal, Fifth Circuit, No(s). 01-KA-734 C/W, 00-KA-1013.

Denied.


text:
    STATE of Louisiana v. Payton FUNCHESS.
    No. 2002-KO-0330.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Funchess, Payton;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 00-5957; to the Court of Appeal, Fifth Circuit, No. 01-KA-782.

Denied.


text:
    STATE of Louisiana v. Thomas WILLIAMS.
    No. 2002-KO-0399.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Williams, Thomas;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafourche, 17th Judicial District Court Div. D, No. 326,273; to the Court of Appeal, First Circuit, No. 2001-KA-0944.

Denied.


text:
    STATE of Louisiana v. Emile MATTHEWS.
    No. 2002-KO-0457.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Matthews, Emile;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 10-99-400; to the Court of Appeal, First Circuit, No. 2001-KA-0521.

Denied.


text:
    STATE of Louisiana v. Auther WILLIAMS.
    No. 2002-KO-0174.
    Supreme Court of Louisiana.
    Feb. 14, 2003.
   In re Williams, Auther;—Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 396-904; to the Court of Appeal, Fourth Circuit, No. 2000-KA-2148.

Denied.


author: hFOGG, J.

text:
    Aaron MILES and Carrie Miles, on Behalf of Velma Miles and Baby Miles (Deceased) v. OUR LADY OF THE LAKE REGIONAL MEDICAL CENTER and an Unknown Emergency Room Treating Physician at Our Lady of the Lake Regional Medical Center.
    No. 2001 CA 2272.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Robert E. Randolph, Baton Rouge, for Plaintiffs — Appellants Aaron Miles and Carrie Miles, on behalf of Velma Miles and Baby Miles (Deceased).
    Douglas K. Williams, Luis A. Leitzelar, Baton Rouge, for Defendant — Appellee Our Lady of the Lake Regional Medical Center.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   hFOGG, J.

The issue raised on appeal in this medical malpractice action brought by parents on behalf of their adult daughter is whether the trial court erred in dismissing the lawsuit upon a finding that the parents lacked procedural capacity. For the following reasons, we affirm.

On August 18, 1998, Velma Miles, a forty-two-year-old woman with a history of mental illness, arrived at the emergency room of Our Lady of the Lake Regional Medical Center complaining of non-specific pain. At her parents’ request, she was admitted to the psychiatric unit of the hospital for observation. The following morning, hospital personnel discovered that Ms. Miles had given birth to a baby. The baby died a few days later. Subsequently, Ms. Miles was discharged from the hospital and, allegedly, has not been seen or heard from since.

On August 17, 1999, Ms. Miles’ father, Aaron Miles, and her stepmother, Carrie Miles, filed a Request for Review of Medical Malpractice Claim with the Louisiana Patient’s Compensation Fund Oversight Board (PCF). Our Lady of the Lake responded by filing an exception of lack of procedural capacity in the Nineteenth Judicial District Court. By judgment of February 16, 2000, the trial court sustained the exception of lack of procedural capacity, but allowed the plaintiffs fifteen days within which to cure the procedural defect relating to their capacity.

Pursuant to LSA-C.C. arts. 47-53, Aaron and Carrie Miles petitioned the Eighteenth Judicial District Court, Parish of Iberville, for appointment as curator and undercuratrix, of Velma Miles, who they claimed to be an absentee. On that date, a trial judge signed an order appointing Aaron Miles as curator and Carrie Miles as undercuratrix for Velma Miles.

On March 29, 2000, Our Lady of the Lake filed a motion to dismiss, alleging that the judgment of the Eighteenth Judicial District Court was null; therefore, the plaintiffs had failed to comply with the court’s order granting them leave of court to cure their lack of procedural capacity. Subsequently, the trial court rendered judgment dismissing the plaintiffs’ claims before the PCF. In its oral reasons for judgment, the court found that the judgment of the Eighteenth Judicial District Court was null and void. The plaintiffs appeal, contending initially that the trial court erred in allowing Our Lady of the Lake to collaterally attack the order of curatorship rendered by the Eighteenth Judicial District Court.

In obtaining the order of curatorship, Aaron and Carrie Miles proceeded under LSA-R.S. 13:3421, which provides the requirements for a petition for appointment of a curator for an absent person as follows:

A. A petition for the appointment of a curator for an absent person, as provided in Civil Code Article 47, shall be filed in the district court of the parish where the absent person was domiciled at the time his absence commenced.
B. If the absent person was not domiciled in this state at the time his absence commenced, the petition may be filed in the district court of any parish where:
(1) Immovable property of the absent person is situated; or
(2) Movable property of the absent person is situated, if he owned no immovable property in the state at the time of his absence.
C. The venue provided in this Section may not be waived.

Clearly, the venue requirement established by LSA-R.S. 13:3421 is nonwaiva-ble. The comments to LSA-R.S. 13:3421 state, in pertinent part, that venue provided by this section is comparable to that of LSA-C.C.P. art. 2811, which has been held to be jurisdictional. In Succession of McElwee, 276 So.2d 391, 392 (La.App. 2 Cir.1973), the court stated:

LSA-Code of Civil Procedure Article 2811 provides that “A proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his Ldeath.” LSA-Code of Civil Procedure Article provides that “The venue provided in Articles ... 2811 ... may not be waived.” Thus, in succession proceedings venue is jurisdictional.

Therefore, in moving for dismissal of the plaintiffs’ action, Our Lady of the Lake alleged nullity due to a lack of jurisdiction of the Eighteenth Judicial District Court when it rendered the order of cura-torship. LSA-C.C.P. art.2002 provides that a final judgment may be annulled by a collateral attack on the judgment if it is rendered: (1) against an incompetent who is not represented as required by law; (2) against a defendant who has not been propeiiy served or against whom a default judgment has not been properly entered; or (3) by a court that does not have jurisdiction over the subject matter of the suit. When a judgment is absolutely null based on a jurisdictional ground, it has no legal existence, and its nullity may be shown in collateral proceedings at any time and before any court. Tannehill v. Tannehill, 226 So.2d 185 (La.App. 3 Cir.1969), writ refused, 254 La. 930, 228 So.2d 485 (1969), appeal after remand, 247 So.2d 870 (La.App. 3 Cir.), writ granted, 259 La. 74, 249 So.2d 208 (1971), affirmed, 261 La. 933, 261 So.2d 619 (1972). Therefore, Our Lady of the Lake’s attack on the order of the Eighteenth Judicial District Court, questioning the jurisdiction of that court, was properly raised collaterally.

The appellants further assert that the trial court erred in finding that the cura-torship proceedings in Iberville Parish did not establish their procedural capacity. LSA-R.S. 13:3421 provides that a petition for curatorship of the purported absentee shall be filed in the parish where the absent person was domiciled at the time her absence commenced or, if the absent person was not domiciled in the state at the time her absence commenced, in the parish where she owned property. The legislation further provides that this venue requirement cannot be waived.

The appellants admit that they have not seen or heard from Ms. Miles since the day she was released from Our Lady of the Lake; accordingly, Ms. Miles’ absence commenced on that date. To invoke the jurisdiction of the Eighteenth Judicial District Court, the appellants had to show that, at the time her absence commenced, Ms. Miles was either domiciled in Iberville Parish under LSA-R.S. 13:3421A or domiciled outside the State of Louisiana under LSA-R.S. 13:3421B. The appellants made no allegation as to Ms. Miles’ domicile in their petition and placed no evidence in the record to support a conclusion that she was domiciled either in Iberville Parish or outside the State of Louisiana at the time her absence commenced. Rather, the only evidence in the record of Ms. Miles’ domicile at the time her absence commenced is contained in the admission forms completed when she was admitted to Our Lady of the Lake which show her address as a post office box in East Baton Rouge Parish.

Therefore, the record before the Eighteenth Judicial District Court was insufficient to comply with the requirements of LSA-R.S. 13:3423A or B. The Eighteenth Judicial District Court lacked subject matter jurisdiction over the curatorship proceeding, and the order of curatorship upon which the appellants rely is an absolute nullity. The trial court correctly dismissed the Miles’ claim for failing to comply with its order to cure the procedural defects relating to their capacity in this matter.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against the appellants, Aaron and Carrie Miles.

AFFIRMED.

      . Other exceptions were also filed by Our Lady of the Lake; however, they are not at issue in this appeal.


author: I «KUHN, J. hDOWNING, J.,

text:
    STATE of Louisiana v. John HAYES.
    No. 2002 KA 0527.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Doug Moreau, District Attorney, Baton Rouge, Louisiana, by Tracy Ewing, Assistant District Attorney, Counsel for Appel-lee State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, Counsel for DefendanVAp-pellant John Hayes.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I «KUHN, J.

Defendant, John Hayes, was charged in the instant matter by bill of information with three counts of forgery in violation of La. R.S. 14:72 (district court case number 07-98-98). In separate bills of information, he was also charged with two counts of theft of a value over $500 in violation of La. R.S. 14:67 (district court case numbers 04-98-610 and 04-98-611), one count of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2 (district court case number 04-98-419) and six additional counts of forgery (district court case number 10-97-692). He originally pled not guilty to all charges but subsequently changed his plea to guilty as charged. After a Boykin examination, the district court accepted defendant’s guilty plea to each count.

Although the cases were not consolidated, defendant was sentenced on all counts in a single hearing, as follows: (1) for each of the three counts of forgery, which are before us on review in the instant matter, defendant was sentenced to five years imprisonment at hard labor; (2) for each of the two counts of theft of a value over $500, he was sentenced to five years imprisonment at hard labor; (3) for the count of simple burglary of an inhabited dwelling, he was sentenced to twelve years imprisonment at hard labor, one year of which was imposed without benefit of probation, parole or suspension of sentence; and (4) for each of the six additional counts of forgery, he was sentenced to five years imprisonment at hard labor. All sentences were imposed to run concurrently.

Defendant filed a motion for reconsideration of the sentences in district court case number 10-97-692, but he did not file or orally make a motion for reconsideration in the other cases. Prior to the instant appeal, he appealed his convictions and sentences under district court case number 10-97-692, but in appellate brief, he challenged as excessive only the twelve year sentence for simple burglary of an inhabited dwelling. State v. John Hayes, 2000-KA-1218 (La.App. 1st Cir.2/16/01) (not designated for publication). This court found that |3the six forgery convictions in district court case number 10-97-692 were the only convictions on appeal and that defendant failed to raise any arguments specifically related to those forgery convictions or sentences. Finding that there was nothing to review on the forgery convictions and that there were no errors patent, this court affirmed the six forgery convictions and sentences of district court case number 10-97-692.

Defendant now appeals the convictions and sentences for the three counts of forgery (district court case number 07-98-98). He appeals the remaining convictions and sentences in companion cases also decided this date.

He urges the following assignments of error:

(1) Defendant should be allowed to withdraw his guilty pleas as they were not entered with full knowledge of the consequences of his sentences.
(2) The sentences should be vacated due to double jeopardy for multiple punishments for the same crime.
(3) The trial court imposed excessive sentences and did not sufficiently comply with the sentencing mandates of La.C.Cr.P. art. 894.1.

We affirm the convictions and sentences.

STATEMENT OF FACTS

In the Boykin hearing, counsel for the State placed on the record the following facts which he planned to prove in the event the matter proceeded to trial:

In district court case number 4-98-419:

On or about March 3, 1998, defendant committed a burglary of an inhabited dwelling located on Apartment Court Drive in Baton Rouge. The occupant of the apartment did not give defendant permission to enter her apartment and “take things.”

|4 In district court case number 7-98-98:

On February 26 and 27, 1998, defendant, without permission, used a credit card belonging to someone named “Hensely” and forged the name of “Shawn Rice” on credit card receipts at a dermatologist’s office, at Lenscrafters and at Walgreens, where he purchased medication prescribed by the dermatologist. Thus, he was charged with three counts of forgery.

In district court case numbers 4-98-610, 4-98-611 and 10-97-692:

Defendant was arrested for several instances, occurring between May 1 and September 30, 1997, of forging credit card receipts in connection with credit cards he stole from “certain rooms” on the campus of Southern University after having obtained keys to get into these rooms. He was charged with only six counts of forgery in connection with these crimes, although the State indicated at the Boykin hearing that there were more than six instances of forgery.

In connection with these instances of stealing credit cards and forging receipts, defendant was arrested for several instances of theft and was billed with only two counts of theft of a value over $500.

When asked by the trial judge whether he agreed with the facts as presented by counsel for the State, defendant responded that he did.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that he should be allowed to withdraw his guilty pleas, as they were not entered with his full knowledge of the consequences of his sentences. He contends that, at the time he changed his pleas from not guilty to guilty, he relied upon an agreement between his counsel and the State regarding the sentences. He asserts that he did not know at the time he pled guilty that the trial court was free to impose the maximum sentences. He further argues that it would make no sense for him to plead guilty in exchange for the maximum sentences as there would be no benefit to him in pleading guilty.

B We note the record reflects that no mention was made of agreed-upon sentences at the Boykin examination, and defendant does not refer herein to any specific agreement regarding the sentences. We further note the maximum sentence was imposed only for the crime of simple burglary of an inhabited dwelling. Defendant did in fact benefit from pleading guilty to the charges against him in that he could have received the maximum sentence for each conviction. Furthermore, the State points out that defendant could have been charged with all of the crimes for which he had been arrested, including thirty-one counts of theft. Defendant’s maximum sentencing exposure was much greater than his actual sentences, and the sentences could have been imposed consecutively rather than concurrently.

At the Boykin examination, the trial judge advised defendant of the statutory penalty range for each crime and asked defendant if he understood, to which defendant responded affirmatively. Furthermore, the court asked defendant if there had been any force, intimidation, coercion or promise of award. Defendant responded, “No, sir.” Thus, the record clearly reflects that defendant understood that he was exposed to maximum sentences for each conviction.

If, as defendant suggests, his pleas were induced by promises which he relied upon, his counsel could have objected at the time the sentences were imposed, asserting that they were not in conformity with the agreement, or he could have filed a motion for reconsideration of the sentences on this basis. Because he did neither, there is nothing before us to review. See La.C.Cr.P. arts. 841 and 881.ID.

Accordingly, this assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the convictions for nine counts of forgery on credit card receipts along with the convictions for two counts of theft constitute double jeopardy. The State counters that the two instances of theft for which defendant was charged and to which he pled guilty arose out of different incidents from those | fiof the forgery convictions. The State asserts that defendant was arrested on thirty-one counts of theft in connection with the unauthorized use of credit cards and that defendant used several different credit cards without authorization. The State avers that the numerous instances of unauthorized use of credit cards are sufficient to establish different incidents for each of the two counts of theft over a value of $500 and the nine counts of forgery.

Defendant did not file a motion to quash the bills of information for those charges which he claims violate the double jeopardy clause; however, double jeopardy may be raised at any time, pursuant to La.C.Cr.P. art. 594. Furthermore, an unqualified plea of guilty does not preclude appellate review of what are regarded as “jurisdictional” defects, such as violations of the double jeopardy clause. State v. Crosby, 338 So.2d 584, 588 (La.1976).

The prohibition against double jeopardy protects an accused from being punished or prosecuted twice for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15; La.C.Cr.P. art. 591. The purpose of these provisions is to protect an accused from a second prosecution for an offense, after he has already been acquitted or convicted of that offense, and also to protect the accused from multiple punishments for the same conduct. State v. Williams, 359 So.2d 115, 117 (La.1978).

While a defendant’s unqualified guilty pleas on multiple charges do not preclude appellate review for double jeopardy, his right to subsequently attack multiple convictions and sentences on double jeopardy grounds is severely circumscribed. In such a case, he can attack a conviction on double jeopardy grounds only if he shows a double jeopardy violation on the face of the record. United States v. Broce, 488 U.S. 563, 575-76, 109 S.Ct. 757, 765-66, 102 L.Ed.2d 927 (1989); State v. Arnold, 2000-0570, p. 1 (La.10/6/00), 770 So.2d 332, 332 (per curiam); State ex rel. Boyd v. State, 98-0378, p. 1 (La.10/9/98), 720 So.2d 667, 667 (per curiam). A court considering a double jeopardy attack on multiple convictions and sentences entered pursuant to unconditional guilty pleas |7should engage in a limited review of only the charging documents and plea colloquy. State v. Arnold, 2001-1399, p. 1 (La.4/12/02), 816 So.2d 289; see also Taylor v. Whitley, 933 F.2d 325, 327-28 (5th Cir.1991), cert. denied, 503 U.S. 988, 112 S.Ct. 1678, 118 L.Ed.2d 395 (1992).

The record of the Boykin examination reflects that counsel for the State, in reciting the facts he intended to prove if the matters went to trial, stated that defendant had committed more forgeries and more thefts than the number for which he was charged. Defendant responded affirmatively when asked by the trial judge if he agreed with the facts as recited by counsel for the State. Nothing in the record indicates that the two counts of theft relate to the same instances as those which support the forgery convictions, and there is no reason to believe that, in charging defendant, the State intended these charges to overlap.

Accordingly, we find there is no double jeopardy. This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant asserts that his sentences are unconstitutionally excessive and that the trial court erred in failing to comply with the guidelines of La.C.Cr.P. art. 894.1. Defendant filed a written motion for reconsideration of all of the sentences. (This motion was filed in case number 10-97-692.) Defendant contends that the sentences are disproportionate to the crimes charged. He asserts that he acted responsibly in pleading guilty to the crimes charged and implies that the trial court should have taken this into consideration when imposing the sentences.

In undertaking our review of the excessiveness of defendant’s sentence, we expressly note that State v. Roosevelt Canada, Jr., 2001-2674 (La.App. 1st Cir.5/10/02), 838 So.2d 784, 790-91, is inapplicable to the facts of this case. In Canada, another panel of this court concluded appellate review of the alleged excessiveness of defendant’s sentence was precluded in those cases where the sentence imposed was in conformity with the plea agreement entered into between the defendant, the State and the trial court. The sentencing function is 1 ^exclusively within the province of the trial court’s authority. State v. Hennis, 98-0664, pp. 4-5 (La.App. 1st Cir.02/19/99), 734 So.2d 16, 18. If the parties agree to a specific sentence, where the trial court has not agreed to abide by any such agreement, the trial court retains the discretion to reject such an agreement. See Hennis, 98-0664 at p. 5, 734 So.2d at 18. Thus, under the facts presently before us where the trial court did not agree to abide to the specific sentence agreed upon between the State and defendant and, therefore, was not a party to the agreement, defendant is entitled to appellate review of the exces-siveness of his sentence.

In this appeal, we review only the sentences for three counts of forgery.

Louisiana Code of Criminal Procedure article 894.1

The Louisiana Code of Criminal Procedure article 894.1 sets forth items that must be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990). In light of the criteria expressed by article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La.App. 1st Cir.1988).

Constitutional Excessiveness

Article I, Section 20, of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. State v. Reed, 409 So.2d 266, 267 (La.1982). A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475, 478 (La.1982).

Pertinent to this matter is La. R.S. 14:72, which provides the penalty for forgery to be a fine of not more than five thousand dollars, or imprisonment, with or without hard labor, for not more than ten years, or both. For each count of forgery, defendant was sentenced to five years imprisonment at hard labor, the sentences to run concurrently.

The trial court noted that it had ordered and reviewed a pre-sentence investigation report and gave the following reasons for the sentences imposed: Defendant, who was thirty-two years old at the time of sentencing, is a second felony offender. He was previously convicted of simple burglary and theft by credit card. He was on parole from a previous conviction when he committed the crimes charged in the instant matter. There are charges pending against him in St. John the Baptist Parish for unauthorized entry of an inhabited dwelling. He is a chronic offender who is in need of correctional treatment in a custodial environment.

After thoroughly reviewing the record, we find that the trial court adequately considered the criteria of article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. Defendant has at least two prior felony convictions and several other convictions in the above-referenced companion cases. The district attorney could have brought more charges against him, but agreed, as part of the plea bargain agreement, not to. In light of his criminal history, defendant is the worst kind of offender. Therefore, the imposition of the sentences does not constitute the needless infliction of pain and suffering, and the sentences are not grossly disproportionate to the severity of the offenses. Thus, they are not unconstitutionally excessive. Accordingly, this assignment of error has no merit.

I ^CONCLUSION

For these reasons, the conviction and sentences imposed against defendant, John Hayes, for three counts of forgery (district court case number 07-98-98) are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

LANIER, J., concurs for the reasons assigned by DOWNING, J.

hDOWNING, J.,

concurs and assigns reasons.

I concur in the result of this case. However, this opinion could be read to imply that a judge who is not a party to a plea agreement between the defendant and the prosecutor may always reject an agreement, without allowing a plea to be withdrawn. This opinion and the opinion in State v. Hennis, 98-0664 (La.App. 1 Cir. 2/19/99), 734 So.2d 16, both leave out the modifying language of State v. Manchester, 545 So.2d 528 (La.1989) cited in Hennis, which says:

The trial judge, of course, had the discretion to reject the plea bargain, even if the parties had been in complete agreement as to the terms. However, the judge did not have discretion both to reject the bargain and to refuse to allow relator to withdraw her plea which was based on her reasonable belief that she would be sentenced in accordance with the bargain. (Citations omitted.) State v. Manchester, 545 So.2d at 529-530.

The admonition by the court in State v. Manchester bears repeating here:

The preferable procedure, in order to eliminate any misunderstanding such as the one which occurred here, is for the trial judge in a guilty plea colloquy to have any plea bargain stated in detail on the record or for counsel to make such an offer if the trial judge fails to require the statement. This procedure not only eliminates any misunderstanding between the court and the parties, but also insures the accuracy of the agreement in the event of future post-conviction applications based on unkept plea bargains. State v. Manchester, 545 So.2d at 528 n. 2.

| gIt is very important that the trial court be specific concerning the nature of any plea agreement. Specificity eliminates misunderstanding.

If a prosecutor states to the defendant that he will recommend a sentence to the trial court but the trial court does not agree to be bound and the prosecutor has made no other representations then:

It is well settled that a defendant may not withdraw his plea solely because the sentence he received is greater than anticipated. State v. Thompson, 414 So.2d 1218 (La.1982).

If the prosecutor and the defendant agree on a specific sentence, not just a recommendation, the judge is not bound by the sentence but he must allow defendant to withdraw his plea. See State v. Manchester, supra. If the defendant is sentenced within the proposed plea agreement, he cannot have his sentence reviewed for excessiveness. State v. Canada, 838 So.2d 784.

If the prosecutor and defendant agree to a sentence and the judge also agrees to the sentence at the plea and then changes his mind, the defendant may either withdraw his plea or obtain specific performance, at the defendant’s discretion. State v. Terrebonne, 2001-2632 (La.App. 1 Cir. 6/21/02), 822 So.2d 149. If the defendant receives a sentence within the sentencing range to which he agreed, then he may not appeal the excessiveness of the sentence.

For the foregoing reasons it is very important for the trial court to specifically state the conditions of the plea. The trial court may avoid remands to determine the defendant’s understanding of the plea if the trial court will follow the suggestion of the supreme court in State v. Manchester, quoted above.

      . See 2002-0524 (La.App. 1st Cir.9/27/02)(appealing his conviction and sentence for one count of theft of a value over $500); 2002-0525 (La.App. 1st Cir.9/27/02)(appealing his conviction and sentence for one count of simple burglary of an inhabited dwelling); and 2002-0526 (La.App. 1st Cir.9/27/02)(appealing his conviction and sentence for one count of theft of a value over $500).

      . This date was not provided in the Boykin hearing but appears in the bill of information.

      . These dates were not provided in the Boykin hearing but appear in the bill of information.


author: _LgFOIL, J.

text:
    LOUISIANA WORKERS’ COMPENSATION CORPORATION v. Harold COOK.
    No. 2001 CA 1897.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Pete Lewis, Barrett Black, New Orleans, for Appellant Defendant Harold Cook.
    Candy Fodor Be, Baton Rouge, for Ap-pellee Plaintiff Louisiana Workers’ Compensation Corporation.
    Before: FOIL, FOGG and KLINE, JJ.
   _LgFOIL, J.

Claimant, Harold Cook, appeals from a judgment of the Office of Workers’ Compensation (OWC), granting the exception of prescription filed by plaintiff, Louisiana Workers’ Compensation Corporation (LWCC), and dismissing his claim for workers’ compensation benefits. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Kent Construction Company, a corporation insured by LWCC, employed claimant as a carpenter. Claimant injured his lower back on March 17, 1993. He received treatment, but ultimately underwent lumbar spine surgery in June, 1993. He has been under medical treatment, including psychiatric treatment, since 1993.

Claimant received TTD benefits until May 19, 1998. At that time, he returned to light carpentry work forty hours per week at a higher salary than his average weekly wage made at the time of the accident. He continued medical treatment, all of which was authorized and paid for by the carrier. By June of 2000, claimant’s condition had ■ deteriorated to the point where he could no longer work at all due to pain. LWCC refused to authorize further medical treatment and refused to reinstate claimant’s benefits, which he demanded in July, 2000. In response to the demand for reinstatement of benefits, on September 27, 2000, LWCC filed a petition for declaratory judgment relative to the prescription issue. Claimant filed an answer and a counterclaim for benefits, as well as a claim for penalties and attorney fees for the carrier’s refusal to pay medical expenses.

The carrier asserted that the claim for benefits was prescribed because it was filed in excess of two years since benefits stopped in May, 1998. Following a hearing, the Workers’ Compensation Judge, Robert Varnado, Jr.(WCJ), held that claimant’s right to weekly indemnity benefits in the form of TTD, SEB and/or PPD benefits had prescribed.

IsThe WCJ ruled in favor of claimant, however, on the issue of penalties and attorney fees. He found that LWCC failed to pay a bill for a particular medical service until the claimant was personally sued for payment. The WCJ found that the carrier had sufficient notice that the medical services were rendered because they were previously authorized by the carrier. The WCJ awarded claimant a $2,000.00 penalty and $2,000.00 in attorney fees.

DISCUSSION

Claimant filed the instant appeal and urges three assignments of error. He asserts that the WCJ erroneously applied a two-year limitation period to his first claim for SEBs, rather than the three-year limitation provided in La. R.S. 23:1209. He further asserts that the carrier promised him that, if he went back to work in 1998, his benefits would be reinstated if he became unable to work due to problems stemming from the 1993 injury. Therefore, he claims that prescription was suspended under the doctrine of contra non valentem. The claimant further asserts that these assurances by the carrier constitute an acknowledgement of his right to receive benefits, thereby interrupting prescription.

After a thorough review, we conclude that the WCJ correctly held that claimant’s right to SEBs was prescribed. Here, the claim for SEBs is barred by the two-year limitation of La. R.S. 23:1221(3)(d)(i), which provides:

The right to supplemental earnings benefits pursuant to this Paragraph shall ... terminate:
(i) As of the end of any two-year period commencing after termination of temporary total disability, unless during such two-year period supplemental earnings benefits have been payable during at least thirteen consecutive weeks; ...

In this case, the record shows that claimant received SEBs during three separate periods of time: 12/31/93 to 7/24/94, 11/24/95 to 11/30/95, 7/5/96 to 7/9/96. SEBs were not payable to claimant for 13 weeks of the two-year period following the date TTD benefits were discontinued (May 19, 1998) because claimant worked from that time until June, 2000, at a higher salary than his average weekly wage made at the Rtime of the accident. Had SEBs been payable for 13 weeks during that two-year period, claimant could have availed himself of the longer prescriptive period, three years from May 19, 1998, provided in La. R.S. 23:1209. See Dufrene v. Video Co-Op, 01-0261 (La.App. 1 Cir. 3/28/02), 813 So.2d 619; Smith v. State Through Department of Health & Hospitals, 94-1533 (La.App. 1 Cir. 3/3/95), 652 So.2d 635.

Further, the WCJ found that prescription was neither suspended nor interrupted due to the actions of the carrier. As the record supports this finding, we decline to disturb it.

For these reasons, the judgment appealed from is affirmed at claimant appellant’s cost.

AFFIRMED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.


author: JgDOWNING, J.

text:
    Leda Iris SALVATIERRA v. Gonzalo CALDERON.
    No. 2001 CA 1888.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Elisabeth W. Ramirez, Covington, Plaintiff-Appellant Leda Iris Salvatierra.
    Gonzalo Calderon, Consul General of Costa Rica, New Orleans, Defendant-Appellant In Proper Person.
    Before: KUHN, DOWNING and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JgDOWNING, J.

Leda Salvatierra appeals an adverse judgment in which the trial court ruled that the state lacked subject matter jurisdiction to hear her action for divorce and ancillary matters where she and her husband enjoy diplomatic status in the United States. The trial court ruled, as a matter of law, that Mrs. Salvatierra could not establish a domicile in this state for divorce purposes. The overarching legal question presented here is whether a foreign national present in this country under a diplomatic visa may establish domicile in this state for purposes of a divorce. For the following reasons, we affirm in part, reverse in part, and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Gonzalo Calderon (Gonzalo) and Leda Salvatierra (Leda) are citizens of Costa Rica. They were married on June 2, 1988 in Costa Rica. In 1998, Gonzalo was appointed to serve a four-year term as the Consul General of Costa Rica. The consulate office is located in New Orleans, but Gonzalo represents Costa Rica in six states. In August 1998, Gonzalo came to live in Louisiana under an A-l diplomatic visa that would expire along with his appointment on June 20, 2002, unless renewed. Leda, as his spouse, enjoys the same status. Leda joined Gonzalo in Louisiana in April 1999. The couple purchased a home in St. Tammany Parish on April 9, 1999.

Gonzalo abandoned the St. Tammany Parish residence in December 2000. On February 26, 2001, Leda filed a Petition for Divorce under LSA-C.C. art. 102. She also asked for spousal support and for partition of their community property. Gonzalo filed a declinatory exception raising the objection of lack of subject matter jurisdiction alleging the parties were not domiciled in Louisiana. The trial court rendered judgment sustaining the exception. The trial court, however, found the court had in rem jurisdiction |3to issue a preliminary injunction enjoining Gonzalo from transferring, moving, disposing of, alienating, and/or encumbering community assets within this state.

Leda’s assignments of error allege that the trial court erred by finding that the parties were not domiciled in Louisiana and, therefore, dismissing the suit for divorce, partition of community property, and other demands set out in the petition for divorce. Leda also alleges that the trial court erred by dismissing her demand for spousal support when the record established that the court had jurisdiction over the person of Gonzalo.

Gonzalo’s answer to appeal alleges three assignments of error asserting that the trial court erred by issuing a preliminary injunction regarding the community assets because the trial court did not have subject matter jurisdiction. Gonzalo further alleges that the trial court erred in granting an injunction since Leda did not file an in rem proceeding against property owned by Gonzalo and, therefore, is not entitled to in rem relief. Gonzalo’s final assignment of error alleges that the trial court erred by issuing a preliminary injunction in an in rem proceeding against property owned by the Consul General for the Republic of Costa Rica because all civil actions, other than divorce, are reserved exclusively to the U.S. District Courts.

DIPLOMATIC IMMUNITY FROM DIVORCE ACTION

The trial court found that unlike average foreign nationals, Leda and Gonzalo were “here on a diplomatic mission” and, therefore, had a special status that exempted them from either suing or being sued in state court.

In State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (U.S.Ohio 1930), however, the United States Supreme Court determined that the Vice Consul of Roumania was subject to suit in state 1 ¿court in an action brought by his wife against him for divorce and alimony. The vice consul argued that because of his diplomatic immunity, he was immune from suit brought in state court pursuant to the provisions of 28 U.S.C.A. § 1351. The Court rejected this argument. As explained by Justice Oliver Wendell Holmes, “when the Constitution was adopted the common understanding was that the domestic relations of husband and wife and parent and child were matters reserved to the States,.... ‘Suits against consuls and vice-consuls’ must be taken to refer to ordinary civil proceedings and not to include what formerly would have belonged to the ecclesiastical Courts.” In summation, Justice Holmes stated “[i]n the absence of any prohibition in the Constitution or laws of the United States, it is for the State to decide how far it will go.” Popovici, 280 U.S. at 383-384, 50 S.Ct. at 155. Popovici is still the controlling Supreme Court precedent in this area.

Justice Holmes stated in Popovici that even though the U.S. Supreme Court has jurisdiction in all eases affecting ambassadors, other public Ministers and Consuls, exercise of this jurisdiction has always been denied over divorces and alimony. Popovici, 280 U.S. at 382-383, 50 S.Ct. at 154-155. Justice Holmes then quoted Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 18 S.Ct. 685, 42 L.Ed. 1126 (U.S.La.1898), which held that words quoted from the Constitution do not of themselves, and without more, exclude the jurisdiction of the State. He further stated that, “[t]he statutes do not purport to exclude the State Courts from jurisdiction except where they [statutes] grant it to the Courts of the United States. Therefore they [statutes] do not affect the present case if it be true as has been unquestioned for three-quarters of a century that the Courts of the | ¡¡United States have no jurisdiction over divorce.” Popovici, 280 U.S. at 383, 50 S.Ct. at 155.

We cannot find any Louisiana cases directly on point. However, domestic relation controversies among foreign consuls and their families are not unique in other jurisdictions. In Minnesota, the state court found in State v. Flores, 197 Minn. 590, 268 N.W. 194 (1936), that it had jurisdiction over a paternity action against a Costa Rican diplomat. The Flores court ruled that the whole field of domestic relations, including actions against a foreign national, was reserved to the states. Id. at 194. In Duran-Ballen v. Duran-Ballen, 180 Misc. 750, 40 N.Y.S.2d 617, (1943), the court found that the federal statute giving federal courts exclusive jurisdiction of suits against consuls did not deprive New York of jurisdiction to issue a declaratory judgment against the Vice Consul of Ecuador declaring void his purported Mexican “mad order” divorce decree. The Duran-Ballen court ruled that federal courts have repeatedly declared that under existing laws they may not entertain jurisdiction over causes affecting domestic relations. Id. at 619. In the instant case, the domestic relations issue between husband and wife belong to the laws of the states and not to the laws of the United States. Id. at 619.

Accordingly, the trial court erred in concluding that it did not have subject matter jurisdiction over a domestic relations suit against a party because of his diplomatic status.

DOMICILE

The trial court ruled that Leda’s diplomatic status in the country precluded her from establishing a domicile in Louisiana. When the trial court found that it had no subject matter jurisdiction over the matter, it ^dismissed the action and, accordingly, did not make factual findings as to whether or not Leda had otherwise established domicile.

The term “citizen” used in the definition of “dqmicile” is not synonymous with citizenship of the United States. See State v. Fowler, 41 La.Ann. 380, 6 So. 602 (1889). Under Louisiana law, “a person becomes a citizen of this state when he becomes a resident of this state.” Sturm v. Hutchinson, 37 So.2d 45, 48 (La.App. 1 Cir.1948).

Domicile is defined in LSA-C.C. art. 38 as follows:

The domicile of each citizen is in the parish wherein he has his principal establishment.
The principal establishment is that in which .he makes his habitual residence; if he resides' alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.

There appears to be no Louisiana jurisprudence regarding whether or not a person’s status as a non-immigrant alien can preclude him from establishing a domicile within this state such that the jurisdictional and venue requirements for divorce can be met. Persuasive authority is, however, found in a May 16, 1945 Louisiana Attorney General opinion to Mr. Nelson Parks, the American Consul in Matamoros, Mexico. In pertinent part, the opinion reads as follows:

Since we can find nothing in either the Statutes or Constitution of this State which deny an alien the right to appear in Court and stand in judgment, we must conclude that the proceedings in the case in question were entirely right and not in violation of any prohibitory law.
It can not be questioned that a citizen of the United States would have a right to institute proceedings against an alien to enforce rights claimed by him and in the absence of a law to the contrary, it must be assumed that an alien is entitled to the same rights and privileges. Attorney General of Louisiana Opinion dated May 16,1945 on p. 6.

17Louisiana’s Constitution protects persons, not citizens. Article I § 22 of the Louisiana Constitution provides:

All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

The trial court erred in finding that Leda could not establish a domicile in this state. Non-immigrant visitors and tourist, who are issued temporary visas, including aliens on a diplomatic-mission, are not precluded from establishing a domicile within a state so as to maintain a divorce action. See State of Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (U.S.Ohio 1930); Dimalanta v. Dimalanta, 1983 WL 30222 (D.Guam A.D.1983); Das v. Das, 254 N.J.Super. 194, 603 A.2d 139 (Ch.1992); Williams v. Williams, 328 F.Supp. 1380 (D.C.V.I.1971). We, therefore, conclude that the trial court committed legal error in its interpretation of the pertinent law. Leda’s status as a non-immigrant, admitted to our country under an A-l status visa, does not preclude her from becoming a domiciliary of Louisiana,

LEDA’S DOMICILIARY STATUS

Leda’s diplomatic status is not an impediment to her establishing domicile in Louisiana. The trial court did not address the issue of whether or not Leda met the requirements of establishing a domicile in St. Tammany Parish. Since the record appears complete on this issue and both parties address this issue in their appellate briefs, we will review the record de novo to determine if the facts support Leda’s change of domicile from Costa Rica to St. Tammany Parish, Louisiana. As we observed in Brett v. Brett, 2000-0436 (La.App. 1 Cir. 5/30/01), 794 So.2d 912; writ denied 2001-2283 (La.11/16/01), 802 So.2d 611:

| ¡Where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. Id. at 915.

Accordingly, from the record we review whether Leda established domicile in St. Tammany Parish. Domicile is an issue of fact to be determined on a case-by-case inquiry. Pattan v. Fields, 95-1936, p. 8 (La.App. 1 Cir. 9/26/95), 669 So.2d 1233, 1238. A person’s domicile of origin continues until another is acquired. Blackwell v. Blackwell, 606 So.2d 1355, 1358 (La.App. 2 Cir.1992). A change in domicile requires the physical presence of the individual in the new domicile coupled with a present intent to permanently reside in the new domicile. Blackwell, 606 So.2d at 1358. Proof of intent to change domicile is governed by LSA-C.C. arts. 42 and 43. Intention to change domicile is proved by an express declaration of it before the recorders of the parishes, from which and to which he shall intend to remove. LSA-C.C. art. 42. In case this declaration is not made, the proof of this intention shall depend upon circumstances. LSA-C.C. art. 43.

The party seeking to show his domicile has changed must overcome the legal presumption that it has not been changed. Sheets v. Sheets, 612 So.2d 842, 844 (La.App. 1 Cir.1992). See also Pattan, 95-1936 at p. 8, 669 So.2d at 1238. However, LSA-C.C.P. art. 10B establishes a specific presumption concerning domicile in actions for annulment and divorce. If a spouse has established and maintained a residence in a parish of this state for a period of six months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence. LSA-C.C.P. art. 10B. Residence of itself does not constitute domicile, but it has been one of the |9important elements in determining the question of domicile. Lorio v. Gladney, 153 La. 993, 1002, 97 So. 16, 19 (1923). “A person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain in place.” Davis v. Glen Eagle Ship Management Corp., 97-0878, p. 1 (La.App. 4 Cir. 8/27/97), 700 So.2d 228, 230. A person can have several residences, but only one domicile. Id. The party seeking to show that his or another party’s domicile has changed has the burden of proving the change. Pattan, 95-1936 at p. 8, 669 So.2d at 1238.

Gonzalo argues that Leda did not meet her burden of proof to show that she was domiciled in St. Tammany Parish by purchasing a residence and residing temporarily in that parish. Gonzalo maintains that he never intended to establish a domicile in Louisiana. Gonzalo testified that he is a Costa Rican citizen and intends to remain a Costa Rican citizen. Gonzalo argues that he is in this country on a temporary basis and can be removed or transferred at any time. Gonzalo argues that there is a legal presumption that a man and his wife have the same domicile and strong proof must be offered to overcome that presumption, citing Laborde v. LIGA, 95-1122, p. 5 (La.App. 3 Cir. 3/6/96), 670 So.2d 614, 617.

This argument is misplaced under LSA-C.C.P. art. 10B. Leda and Gonzalo established and maintained a residence in St. Tammany Parish for more than 6 months, a rebuttable presumption exists that they have established a domicile there. We examine the record to determine if Gonzalo has successfully rebutted the presumption that Leda has established her domicile in St. Tammany Parish.

Gonzalo also points out that Leda still owns property in Costa Rica, maintains a law practice in Costa Rica, is listed in the telephone book in Sanj^Jose, Costa Rica, and that the phone is still connected at her firm. He also testified that all but one of her children live in Costa Rica and Leda visits them often. Gonzalo testified that Leda never liked living in Louisiana and never expressed a desire or intent to stay and that she still owns a residence in Costa Rica. He also testified that both he and Leda listed their address in Costa Rica as their residence on the U.S. visa application.

We conclude that it is of little moment that Leda still has a telephone listing her as an attorney in Costa Rica. Leda testified that she has closed her files and concluded all of her legal business in Costa Rica and is now retired. Leda explained that the phone in Costa Rica is still connected because her daughter is also an attorney and keeping an established listing is advantageous for her daughter’s business. Leda also testified that, although she has a small residential property in Costa Rica, it is merely a rental and brings in a small income. Leda testified that she and Gonzalo intended to stay in Louisiana permanently and that is the reason they spent $191,000 on a home in St. Tammany shortly after arriving in the United States. While the presumption of original domicile continues until fixed elsewhere, whenever a person has acquired a residence elsewhere and actually resides there this will be presumed to be his domicile. Successions of Rhea, 227 La. 214, 227, 78 So.2d 838, 842 (1955). Leda further testified that she opened a business enterprise here. The acts and conduct of the parties speak louder than words when it comes to a determination of domicile. Id. at 228, 78 So.2d at 842.

The primary residence address being recorded as Costa Rica by Leda on her visa application is at first blush, troubling. However, a similar situation was discussed in Williams v. Williams, 328 F.Supp. 1380 (D.C.V.I.1971. The Williams court stated that “[e]ven assuming the least favorable situation, where an alien has misrepresented his true intent at the time he was granted entry to the country, the fact that he may be illegally in the country and deportable would not preclude him from forming an actual intent to make his home here.” Id. at 1383. Thus, ample jurisprudence establishes that domicile in a state for purposes of obtaining a divorce does not depend on the nature of the visa upon which the alien entered the country, the alien’s status under the United States’ immigration laws, nor the alien’s expressed intent to return to his country as stated on his application for a visa. See Abou-Issa v. Abou-Issa, 229 Ga. 77, 189 S.E.2d 443 (1972); Nicolas v. Nicolas, 444 So.2d 1118 (Fla.App. 3 Dist.1984); Babouder v. Abdennur, 41 Conn.Supp. 258, 566 A.2d 457 (1989). In Alves v. Alves, 262 A.2d 111 (D.C.App.1970), an alien who came to the United States to assume a position with an international company as a foreign officeholder was allowed to establish a domicile for the purpose of obtaining a divorce. The Alves court said:

A visa is a document of entry required of aliens by the United States Government and is a matter under the control of the Government. It has little relevance to the question of domicile. Alves, 262 A.2d at 115.

Our review of the record supports that Gonzalo failed to rebut the presumption that Leda’s principal domicile is in St. Tammany Parish. We conclude that under the totality of circumstances including Leda’s maintaining a physical presence in the state as evidenced by the purchase of, and residing in, a home in Louisiana, combined with having a business in Louisiana, together with her stated declarations of an intent to establish a domicile within this state, that Leda has thus satisfied the requirements of |1?,LSA-C.C. art. 38. We, therefore, find, that Leda has established domicile in St. Tammany Parish.

LEDA’S INTERIM SPOUSAL SUPPORT

Leda’s next assignment of error alleges that the trial court erred by dismissing her demand for interim spousal support as the record established that the court had jurisdiction over the person of Gonzalo.

We agree. Married persons owe each other fidelity, support, and assistance. LSA-C.C. art. 98. This Court has held that the purpose of interim alimony is to provide support temporarily, pending litigation, for the spouse who does not have sufficient income to maintain the status quo insofar as the economic circumstances of the marriage are concerned. Brazan v. Brazan, 93-2369, pp. 7-8 (La.App. 1 Cir. 6/24/94), 638 So.2d 1176, 1181.

Gonzalo argues that since he has diplomatic immunity, he must come under federal jurisdiction. We disagree for reasons stated above. We agree with the ruling in Urdaneta v. Urdaneta, 179 Misc. 95, 37 N.Y.S.2d 601 (N.Y.Dom.Rel.Ct.1942), which held the following:

Sound public policy cannot permit that a man should abandon his wife without cause in this city, and seek to avoid total immunity for her support on the ground that he is a consul of a foreign government. The Constitution, the statutes and the decisions do not indicate that such immunity was ever intended. Urdaneta, 37 N.Y.S.2d at 604.

This assignment of error has merit apart from our conclusion that the trial court has subject matter jurisdiction that extends to issues ancillary to the divorce. Because we have found jurisdiction over the matter, this case is remanded to the trial court for further proceedings in accordance with this decision.

JjjGONZALO’S ANSWER TO APPEAL

The trial court enjoined Gonzalo from transferring, moving, disposing of, alienating, or otherwise encumbering any of the assets of the community of acquets and gains existing between Gonzalo and Leda that are located in the State of Louisiana.

Gonzalo’s answer to appeal asserts three assignments of error concerning how the trial court erred in enjoining him from “transferring, moving, disposing of, alienating, or otherwise encumbering any of the assets of the community ... existing between Gonzalo Calderon and Leda Iris Sal-vatierra which are located in the State of Louisiana.” Specifically, Gonzalo alleges that the trial court erred by issuing a preliminary injunction when the court did not have subject matter jurisdiction to handle the divorce action; that the trial court erred in granting Leda’s request for injunction because Leda did not file an in rem proceeding against the property; and by proceeding in rem against property owned by the Consul General of Costa Rica.

As discussed above, however, the trial court does have jurisdiction over the divorce and ancillary proceedings, and, as such, has authority to issue an injunction to protect Leda’s interest in the community property located in Louisiana. See Imperial v. Hardy, 302 So.2d 5, 8 (La.1974); also see LSA-C.C.P. art. 2592.

This assignment of error is without merit. The ruling of the trial court on this issue is affirmed.

CONCLUSION

For the foregoing reasons: (1) the trial court judgment sustaining Gonzalo’s peremptory exception raising the objection of lack of jurisdiction over the subject matter of the action is reversed and judgment is rendered in |ufavor of Leda and against Gonzalo overruling the exception; (2) the trial court judgment granting the injunction is affirmed; and (3) this action is remanded to the trial court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed to Gonzalo Calderon.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . The St. Tammany Parish property was repossessed for non-payment before this suit was filed.


author: laKUHN, J. PLANIER, J.,

text:
    Jimmy BACON v. TRANSPORT SERVICE COMPANY.
    No. 2001 CA 1913.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      W. Dale Behan, Baton Rouge, Counsel for PlaintiffiAppellee Jimmy Bacon.
    Scott E. Frazier, Baton Rouge, Counsel for Defendant/Appellant Transport Service Company.

      Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

      . Bacon did not testify that he advised Transport on October 15, 1999, he was unable to work because of the commute, and nothing in the record shows that Transport had actual knowledge that Bacon could not handle the drive. While the record establishes that the last check Bacon received before Transport terminated his benefits was on October 11, 1999, and we can, therefore, calculate that the October 18th and October 25th checks for disability benefits may have issued prior to the employer's receipt of Dr. Clark’s updated report, because Transport did not appealed that portion of the OWC judgment which awards Bacon supplemental earnings benefits for these weeks, the matter was not properly preserved for our review.

   laKUHN, J.

Employer-appellant, Transport Service Company (Transport), appeals a judgment which, among other things, concluded the employer’s discontinuation of payment of compensation paid to claimant-appellee, Jimmy Bacon, was arbitrary, capricious, or without probable cause and awarded attorney’s fees of $7,500. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bacon, a truck driver working for Transport, fell from the top of a trailer at a facility in Pennsylvania, injuring his back and shoulder on October 23,1997. He was taken to a local hospital for immediate care, and then returned to Baton Rouge, Louisiana, where he was diagnosed with a left kidney hematoma, a transverse fracture of his lumbar spine, and a right shoulder rotator cuff injury. Commencing on October 27, 1997, Transport paid disability benefits to Bacon. After several surgeries, physical therapy, and vocational rehabilitation, Bacon developed chronic pain syndrome of his lumbar spine and right shoulder.

Bacon received a disability check on October 11, 1999, and then Transport ceased payments. Bacon filed a disputed claim form on December 3, 1999. Transport answered the claim, averring that Bacon refused a light duty position “despite medical clearance for same.”

After a hearing, the Office of Workers’ Compensation (OWC) concluded that Transport’s discontinuation of disability benefits was arbitrary, capricious, or without probable cause. Attorney’s fees of $7,500 were awarded. Transport appeals urging OWC’s conclusion that it was arbitrary and capricious is erroneous, and alternatively, challenges the quantum of the fee awarded.

[¿DISCUSSION

Louisiana Revised Statute 23:1201.2 provides in relevant part:

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found hable for attorney fees under this Section.

Whether the refusal to pay compensation benefits or the discontinuation of those benefits warrants the imposition of penalties and attorney fees is a factual question which will not be disturbed upon review in the absence of manifest error. Parfait v. Gulf Island Fabrication, Inc., 97-2104, pp. 16-17 (La.App. 1st Cir.1/6/99), 733 So.2d 11, 24. A court of appeal may not set aside OWC’s finding of fact in absence of “manifest error.” McCray v. Delta Industries, Inc., 2000-1694, p. 4 (La.App. 1st Cir.9/28/01), 809 So.2d 265, 269.

Louisiana Revised Statute 23:1201.2 requires a finding that defendant acted arbitrarily, capriciously, or without probable cause before attorney fees can be assessed. Parfait, 97-2104 at p. 16, 733 So.2d at 24. And a refusal to pay disability benefits will not be held to be arbitrary or capricious when this decision is based on competent medical advice. Id.

A determination of whether a denial of compensation benefits is arbitrary, capricious, or without probable cause depends primarily on the facts existing and known at the time that benefits are denied. Id. The realistic standard for making this determination is whether there was a “reasonable” basis for a dispute about the employee’s entitlement to benefits. Id.

Transport maintains it offered a modified job to Bacon within the restrictions of his treating physician, urging that because discontinuation of disability payments was I ¿based on a work release from Bacon’s treating physician, OWC’s conclusion that it was arbitrary, capricious, or without probable cause is manifestly erroneous. Transport suggests that Bacon never gave a genuine effort to perform the job.

The record shows that on October 7, 1999, diagnosing claimant with failed back syndrome, Bacon’s treating physician, Dr. John E. Clark, released him to sedentary work status. The work release designates that it was a “temporary” one, and Dr. Clark noted in the “Comments” section of the form, “trial time to determine if drive can be tolerated.” It is undisputed that Bacon’s roundtrip commute was approximately eighty miles.

Transport provided Bacon a sedentary job, which required only that the former truck driver copy documents and tend to other office work; Bacon did not have any truck driving duties in the new position. Transport paid Bacon at the rate of $10 per hour, and the position allowed that claimant would work between two and four hours a day. On October 15, 1999, the only day Bacon attempted to work, due to intolerable pain, he turned around and went home. Transport then discontinued payment of disability benefits.

At the conclusion of the hearing, OWC stated:

I do feel that the discontinuation of benefits ... was arbitrary and capricious. Maybe not initially when he did not show up, and since they had the October 7th [work release] .... [B]ut the October 29th report of Dr. Clark, in my mind, very much lays it out that he [cannot] — that he can [work] if he wants to, but that he physically cannot make this drive anymore.

On October 29, 2000, Bacon was once again examined by Dr. Clark. In an outpatient follow up office visit report, Dr. Clark stated:

Bacon ... states he attempted to return to work on 10-15-99 but the drive to work exacerbated his low back pain precluding him from completing attendance at work. Consequently he never returned to work due to the fact the drive precluded him from completing this task. Given the fact he was released to return to work on a temporary basis to determine if the drive could be tolerated, [it] is now apparent that the drive which is approximately 80 miles round trip precludes his ability to gainful employment.

|sThus, Transport was aware no later than the end of October that the earlier-provided work release issued by Dr. Clark allowing Bacon to work in a sedentary position was no longer viable in light of the exacerbation of claimant’s condition traveling the lengthy distance to the jobsite. Transport does not deny that the exacerbated injury which gave rise to the pain Bacon experienced in his drive to the jobsite was as a result of the October 27, 1997 accident.

OWC concluded, as we do, that the work release relied upon by Transport simply does not support the employer’s discontinuation of benefits as it asserts. The temporary release expressly conditioned Bacon’s return to work in a light duty status on the former truck driver’s ability to withstand the lumbar pain caused by an approximately eighty mile roundtrip drive from his home to the job site. Dr. Clark withdrew that work release as evidenced in his October 29,1999 report.

Mindful that a determination of whether a denial of compensation benefits is arbitrary, capricious, or without probable cause depends primarily on the facts existing and known at the time that benefits are denied, we cannot say that OWC was manifestly erroneous in finding that after October 29, 1999, Transport was arbitrary, capricious, or without probable cause in its discontinuance of disability benefits to Bacon.

Transport alternatively asserts the award of $7,500 is excessive, suggesting that the failure of claimant to include an itemization of the work his attorney performed is fatal to the award.

| fiWhen attorney’s fees are awarded in a workers’ compensation case, they are deemed to be a penalty, and the value of the attorney’s fees need not be proven. Insurance Co. of North America v. Labit, 99-2448, p. 7 (La.App. 1st Cir.11/15/00), 772 So.2d 385, 389. OWC is allowed to call upon its own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case. Id. The factors to be considered in the imposition of an award for attorney’s fees in workers’ compensation cases include the degree of skill and work involved in the case, the amount of the claim, the amount recovered, and the amount of time devoted to the case. Id.

OWC stated:

In light of the amount of work ... done on this file, I understand from Mr. and Mrs. Bacon’s testimony that they spent a lot of time with [claimant’s attorney]. There has been a deposition taken, at least a couple of other outside media-tions attempted, whether or not they actually heard mediation here. [Claimant’s attorney] prepared a Bench Book. He’s prepared for trial.

OWC called upon its own experience and expertise in fashioning an award, and we do not find that the amount of $7,500 for an award of an attorney’s fee was an abuse of discretion under the facts of this case.

CONCLUSION

OWC’s judgment concluding Transport was arbitrary, capricious, or without probable cause in discontinuing the disability benefits of claimant, Jimmy Bacon, and awarding attorney’s fees under La. R.S. 23:1201.2 is affirmed. Costs of this appeal are assessed against defendant-appellant, Transport Service Company.

AFFIRMED.

PLANIER, J.,

concurring in part.

I do not agree with the treatment of the attorney fee issue. In my opinion, the opinion’s methodology for determining the reasonableness of the fee is neither complete nor accurate. A workers’ compensation judge has no more authority to fix a penalty attorney fee than does a district court judge.

Pursuant to La. Const. of 1974, art. V, § 5(B), the Louisiana Supreme Court has the exclusive authority to regulate the practice of law in this state. Accordingly, the courts (judiciary) determine the reasonableness of attorney fees. O’Rourke v. Cairns, 95-3054 (La.11/25/96), 683 So.2d 697, 700. The Louisiana Supreme Court has done so in Rule 1.5 of the Louisiana Rules of Professional Conduct. This rule applies to workers’ compensation judges and the attorneys who receive the fees in workers’ compensation cases. In Gulf Wide Towing, Inc. v. F.E. Wright (U.K.) Limited, 554 So.2d 1347, 1353-1355 (La.App. 1 Cir.1989), appears the following:

Rule 1.5 of the Louisiana Rules of Professional Conduct states, in part:
(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
1 ¡/The Louisiana Rules of Professional Conduct (formerly the Code of Professional Responsibility) have the force and effect of substantive law. City of Baton Rouge v. Stauffer Chemical Company, 500 So.2d 397 (La.1987). The courts may inquire into the reasonableness of an attorney fee. Leenerts Farms, Inc. v. Rogers, 421 So.2d at 219. While it is true that a court is required to allow the introduction of “all admissible evidence” when an attorney fee is claimed (La.R.S. 13:3738), nevertheless, proof of the value of an attorney’s services is not necessary where the services are evident from the record and/or are rendered under the supervision of the court. Richard v. Broussard, 482 So.2d 729 (La.App. 1 Cir.1985), aff'd, 495 So.2d 1291 (La.1986). A trial court judge [OWC judge] has much discretion in fixing an attorney fee, and his award will not be modified on appeal absent • a showing of an abuse of discretion. Central Progressive Bank v. Bradley, 506 So.2d 711 (La.App. 1 Cir.), writ denied, 508 So.2d 74 (La.1987).

In my opinion, this is a complete and accurate statement of law for deciding this assignment of error.

For the foregoing reasons, I respectfully concur in part.

      . OWC specifically found claimant was entitled to Supplemental Earning Benefits of $350 per week from October 12, 1999 through August 24, 2000; and Permanent and Total Disability Benefits of $350 per week thereafter. That portion of the OWC ruling has not been appealed.


author: J^FOGG, J.

text:
    CECO CONCRETE CONSTRUCTION, L.L.C. and RELIANCE INSURANCE CO. v. Yolanda Renee Smith PENNINGTON, Kenneth Lamont Pennington, Jr., Shalonda Monique Pennington, Eureka Pennington, Trina Haynes, Marie McGee, and Cornelius Hill.
    No. 2001 CA 1945.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Michael L. Martin, Sidney W. Degan, III, New Orleans, for Plaintiffs — Appellees Ceeo Concrete Construction, L.L.C. and Reliance Ins. Co.
    Scott P. Shea, New Orleans, for Defendants — Appellants Yolanda Pennington and Kenneth Pennington, Jr.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FOGG, J.

In this workers’ compensation case, the surviving spouse and an adult child appeal a judgment rejecting their claim for benefits upon a finding they were not depen-dants of the deceased employee. For the following reasons, we affirm.

On June 8, 1999, Kenneth Pennington, Sr., an employee of Ceco Concrete Construction, was killed while in the course and scope of his employment. Anticipating claims for death benefits, Ceco initiated a concursus proceeding. The workers’ compensation judge found that Yolanda Pennington, the surviving spouse, and Kenneth Pennington, Jr., the decedent’s adult son, were not dependents of the deceased and denied them death benefits. They appeal.

Ms. Pennington and Kenneth Pennington, Jr. were not living with the decedent at the time of his death and do not enjoy the conclusive presumption of dependency established by LSA-R.S. 23:1251. Pursuant to LSA-R.S. 23:1252, the question of legal and actual dependency, when conclusive dependency does not exist, shall be determined “in accordance with the facts as they may be at the time of the accident and death.” The mere expectation or hope of future contribution for support shall not constitute proof of dependency as a fact. LSA-R.S. 23:1254. Occasional gifts or aid do not constitute legal dependency. Lumbermen’s Underwriting Alliance v. Teague, 521 So.2d 820 (La.App. 2 Cir.1988). Proof of dependency upon the earnings of the decedent at the time of his death must be by a preponderance of the evidence. Castle v. Prudhomme Tank Truck Line, Inc., 417 So.2d 1205 (La.App. 1 Cir.), writ denied, 422 So.2d 423 (La.1982). Dependency is a question of fact, and the workers’ compensation judge’s findings should not be disturbed on appeal absent manifest error or clear wrongness, even where a conflict in the evidence exists. Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, writ denied, 98-2314 (La.11/13/98), 731 So.2d 265.

Yolanda and Kenneth Pennington, Sr. were married in 1973 and made their 13home in Louisiana. In 1990, the Pen-ningtons physically separated and Yolanda and Kenneth Pennington, Jr. moved to Atlanta, Georgia. Ms. Pennington testified that the deceased visited regularly and provided support for her and Kenneth Pennington, Jr. However, she offered no evidence, other than her testimony, to establish dependency.

Kenneth Pennington, Jr., a student at Georgia Perimeter College at the time of trial, testified that his father offered, before his death, to pay a portion of the tuition. However, Kenneth Pennington, Jr. offered no evidence of his enrollment or attendance as a full-time student at an accredited educational institution at the time of his father’s death. See LSA-R.S. 23:1251(2).

Considering the evidence presented, we cannot say the workers’ compensation judge was manifestly wrong in his determination that Yolanda and Kenneth Pennington, Jr. failed to prove dependency on the deceased’s earnings. Finding no error in the denial of appellants’ claim for death benefits, we also find no merit to’ their claim for penalties and attorney’s fees.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Costs are assessed against Yolanda Pennington and Kenneth Pennington, Jr.

AFFIRMED.


author: _[¿FOIL, J.

text:
    Ned J. PLAISANCE v. Rebecca Blount PLAISANCE.
    No. 2001 CA 2165.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Stephen H. Marionneaux, Livonia, for Appellant Plaintiff Ned J. Plaisance.
    Carol E. Stracener, Baton Rouge, for Appellee Defendant Rebecca Blount Plai-sance.
    Before: FOIL, FOGG and KLINE, JJ.
   _[¿FOIL, J.

In this appeal, Ned J. Plaisance challenges a judgment wherein the trial court refused to give full faith and credit to a divorce judgment rendered by an Arkansas court in favor of Mr. Plaisance’s wife, Rebecca. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Plaisance were married in 1968 and established their matrimonial domicile in Louisiana. In 1971, Mrs. Plai-sance filed a petition for divorce in the Chancery Court of Union County, State of Arkansas. In conjunction with her petition, Mrs. Plaisance submitted a “deposition” in which she falsely attested to having lived in Junction City, Arkansas, for many years. In fact, Mrs. Plaisance had always lived in Louisiana. After considering the petition, a “Waiver and Entry of Appearance” by Mr. Plaisance, and the “depositions” of Mrs. Plaisance and her mother, the chancellor of the Arkansas chancery court signed a judgment granting the divorce.

Mr. and Mrs. Plaisance subsequently reunited and lived together until 1999. According to Mrs. Plaisance, she consulted a Louisiana attorney who advised that she and Mr. Plaisance were still married, and need not remarry, because the Arkansas divorce judgment was invalid.

In 1999, Mr. Plaisance filed a petition for divorce in West Baton Rouge Parish. Mrs. Plaisance answered the petition and sought a partition of community property. Later, Mr. Plaisance filed a second petition, seeking recognition of the Arkansas divorce judgment and to have it made executory. Mrs. Plaisance filed an answer and opposition to the second petition, claiming neither she nor Mr. Plaisance had ever lived in Arkansas and that the Arkansas divorce judgment was thus invalid and not entitled to be given full faith and credit by the Louisiana court. The two suits were consolidated and hearings were held. The trial court subsequently signed a judgment stating, “the Arkansas court had no jurisdiction over the parties or |sthe subject matter in order to render a valid divorce judgment and therefore the Louisiana Court will not give full faith and credit to the divorce judgment rendered in Arkansas.” Mr. Plaisance appeals.

FULL FAITH AND CREDIT

Article IV, § 1 of the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.” The requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister state where: (1) the defendant has participated in the divorce proceedings; (2) the defendant has been accorded full opportunity to contest the jurisdictional issues; and (3) the decree is not susceptible to such collateral attack in the courts of the state that rendered the decree. Johnson v. Muelberger, 340 U.S. 581, 586, 71 S.Ct. 474, 477, 95 L.Ed. 552 (1951); Succession of Bickham, 518 So.2d 482, 492 (La.1988).

A defendant participates in a proceeding by entering an appearance. Succession of Bickham, 518 So.2d at 492. The signing of a waiver of service and entry of appearance is sufficient to constitute a general appearance. Id.; Bernard v. Bernard, 94-1285 (La.App. 3 Cir.1/9/95), 648 So.2d 509, 513, unit not considered, 95-0335 (La.3/24/95), 651 So.2d 284; Jeffries v. Estate of Pruitt, 598 So.2d 379, 386 (La.App. 1 Cir.), writs denied, 599 So.2d 306, 605 So.2d 1124 (La.1992). The Arkansas judgment granting Mrs. Plai-sance a divorce indicates Mr. Plaisance signed a “Waiver and Entry of Appearance” in the Arkansas proceedings. This action constituted Mr. Plaisance’s appearance and afforded him an opportunity to contest the jurisdictional issue of Mrs. Plaisance’s residency, which he did not do.

Further, under Arkansas law, Mrs. Plai-sance cannot now collaterally attack the divorce decree. If she had been an Arkansas resident as she claimed, the decree was valid. Having not been an Arkansas resident, Mrs. UPlaisance defrauded the Arkansas court and is now precluded by the stigma of her own involvement from any relief against a judgment of divorce obtained under these circumstances. See Succession Bickham, 518 So.2d at 493, citing Smith v. Smith, 272 Ark. 199, 612 S.W.2d 736, 737 (1981).

For the foregoing reasons, the judgment of the trial court, refusing to give full faith and credit to the Arkansas divorce judgment, is reversed. This matter is remanded for entry of a judgment recognizing the Arkansas divorce judgment as valid and making it the judgment of the trial court.

Costs of this appeal are assessed to Mrs. Plaisance.

REVERSED AND REMANDED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.


author: JjjFOGG, J.

text:
    Dale J. POLITZ, Jr. v. RANDY KEY CONSTRUCTION, INC., Key Construction and Remodeling, Randy Key Construction, Key Construction, Randy Key, State Farm Fire and Casualty Company, XYZ Insurance Company.
    No. 2001 CA 2172.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Chris P. Pierce, Baton Rouge, for Plaintiff-Appellee Dale J. Politz, Jr.
    Angela F. Lockett, Baton Rouge, for Defendants — Appellants Randy Key Construction, Inc., Key Construction, and Remodeling, Randy Key Construction, Key Construction, and Randy Key.
    Darrell J. Loup, Baton Rouge, for Defendant — Appellee State Farm Fire and Casualty Company.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JjjFOGG, J.

In this dispute concerning a remodeling contract, the contractor contests his liability for damage to the homeowner’s property and the homeowner answers the appeal seeking damages for frivolous appeal. For the following reasons, we affirm the judgment of the trial court and award damages for frivolous appeal.

Dale J. Politz, Jr. purchased a home that required extensive remodeling. Prior to occupying the home, he entered into a remodeling contract with Randy Key Construction (Key Construction), a general contractor. The project was to be completed in phases over a three-year period at a cost in excess of $300,000.00. For its services as the general contractor, Key Construction charged Politz a 10% profit and overhead surcharge. As the work progressed, Key Construction periodically billed Politz.

One aspect of the remodeling included the placement of a twenty-two-foot support beam in the kitchen area. Key Construction installed a laminated beam that would be covered later with cypress. Shortly thereafter, Politz noticed heavy rain caused rainwater to pool near the fireplace. Randy Key advised him that, during previous work, the roofer failed to install flashing around the fireplace, causing a leak and that it would cost approximately $150.00 to install the flashing. Politz told Randy Key that he should not have to pay to fix this error as Randy Key should have overseen the work of the roofer to insure that the work was done properly.

When Politz received the next bill from Key Construction, he deducted, among other things, $150.00 for the cost to install the flashing around the fireplace and explained by letter to Key Construction why the sum was deducted. Shortly thereafter, he received a phone call from Randy Key, who laughingly told him that he had cut the beam in the kitchen down and that he had gotten his $150.00 worth.

Politz immediately went to the house and found the beam lying on the floor. |3It had been cut in half and cut away from the joists to which it had been attached. In addition to causing a hole in the subsurface floor when it fell, the removal of the beam caused the floor and the roof to sag, the fascia boards to separate from the roof, and the flashing on the roof to wrinkle. Politz hired another contractor to repair these problems at a cost of approximately $3,600.00. Subsequently, Politz filed suit against Randy Key, Key Construction, and its insurer, State Farm Fire and Casualty Company, for this additional cost. Key Construction and Randy Key answered the suit with a general denial and sought an offset for plumbing and electrical work.

After hearing the matter, the trial court determined that Randy Key’s actions were deliberate, that Randy Key had not presented any evidence of offsets so his claim failed, and that Key Construction and Randy Key had no insurance coverage under a contractor’s policy issued to them by the State Farm. The trial judge rendered judgment against Key Construction and Randy Key and in favor of Politz in the sum of $3,640.27 and dismissed State Farm. Key Construction and Randy Key appeal.

Initially, the appellants assert that the trial court erred in failing to award it an offset. WTiere the owner denies being indebted to the contractor, the contractor has the burden of proving each and every item of expense in connection with the job. He is under a duty to itemize every expenditure. Planning Systems Corp. v. Murrell, 374 So.2d 719 (La.App. 4 Cir.), writs denied, 377 So.2d 843, 376 So.2d 319 (La.1979).

In its oral reasons for judgment, the trial court stated:

[T]here may be some equities. There may have been some offsets, but there was no evidence of any offset. Mr. Key talked about some amounts he may have paid for some plumbing, some amounts he may have paid for some electrical, but no documentation of any kind, no corroborating proof of any kind was offered and he was not able to testify with any specificity as to the amounts actually paid for those. So any claims he might have had for offset on that would fail.

j4At trial, Randy Key admitted that no bills were sent to Politz for this work, and he presented no evidence of the work having been performed. In fact, he admitted that the subcontractors allegedly involved had not even billed him for the work. The record supports the trial court’s determination that the appellants failed to carry the burden of showing performance. Accordingly, we find no manifest error in the trial court’s determination that the appellants were not entitled to recover any offset for electrical or plumbing work.

The appellants further assert that the trial court erred in finding that it has no insurance coverage under the contractor’s policy. The State Farm policy provided that liability coverage will apply only to “bodily injury or property damage caused by an occurrence ....” An occurrence is defined in the policy as “An accident, including continuous or repeated exposure to substantially the same general harmful conditions which result in bodily injury or property damage .... ” (Emphasis added) Furthermore, the policy excluded property damage expected or intended from the standpoint of the insured and damage to property which is the result of willful and malicious acts of the insured.

The appellants assert that Randy Key intended only to remove the laminated beam so “the old one could be installed” and that he did not intend to cause the sag in the roof or any other damage to Politz’s home. Therefore, the trial court erred in failing to apply the standard set forth in Breland v. Schilling, 550 So.2d 609, 614 (La.1989), which provides, that “when minor injury is intended, and a substantially greater or more severe injury results, whether by chance, coincidence, accident, or whatever, coverage for the more severe injury is not barred.” Whether the resulting damage was intended by the insured is a question of fact. Breland, 550 So.2d at 614.

Randy Key worked as a contractor for more than thirty years. Therefore, we find no manifest error in the trial court’s determination that he intended the | ..¡structural damage caused by his actions and no error in the conclusion that such damage caused by this intentional act is not covered by the State Farm policy.

Finally, Politz answered this appeal, seeking attorney’s fees for frivolous appeal pursuant to LSA-C.C.P. art. 2164. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Sys. Const. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Guarantee, 728 So.2d at 405. We find that there were no serious legal questions involved in this appeal. Randy Key’s carpentry experience exceeds thirty years, leaving no doubt that he knew exactly what he was doing when he hacked that beam down in what appears to have been a temper tantrum by a grown man. He cannot now come into this court with the mere hope that he will not be held responsible for his own actions and, if nothing else, delay the inevitable result of having to pay for the damage he wantonly caused to the man who entrusted him with the task of renovating his home. Therefore, we find that $1,500.00 is adequate attorney’s fees for the cost of defending this frivolous appeal.

For the foregoing reasons, the judgment of the trial court is affirmed. Attorney’s fees are assessed in the sum of $1,500.00 against Key Construction and Randy Key for frivolous appeal. Costs of this appeal are assessed against Key Construction and Randy Key.

AFFIRMED.