author: [.THIBODEAUX, Judge.

text:
    Susan ARRINGTON, et al. v. GALEN-MED, INC., d/b/a Lake Area Medical Center.
    No. 02-784.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Oliver “Jackson” Schrumpf, Law Offices of Oliver “Jackson” Schrumpf and Charles Schrumpf, Sulphur, LA, for Plaintiffs/Ap-pellees: Susan Arrington, et al.
    Benjamin W. Mount, Bergstedt & Mount, Lake Charles, LA, for Defendant/Appellant: Galen-Med, Inc., d/b/a Lake Area Medical Center.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   [.THIBODEAUX, Judge.

In this suit for medical malpractice, plaintiff, Susan Arrington, appeals the judgment of the trial court, which awarded $7,500 in costs on behalf of plaintiffs expert for trial preparation and testimony against defendant, Galen-Med, Inc. d/b/a, Lake Area Medical Center (“LAMC”). All other costs submitted by plaintiff, other than costs for Arthur Shorr’s preparation and testimony, x-rays, and Dr. Paul Co-meaux’s testimony, were excluded by the trial court judge. Plaintiff contests the trial court’s denial of these costs. Additionally, Ms. Arrington appeals the trial court’s application of a $20,000 credit in costs paid by the Louisiana Patient’s Compensation Fund (“PCF”) in its settlement agreement. Plaintiff-appellant charges that the trial court’s failure to award the remaining costs in conjunction with the credit resulted in the successful plaintiff incurring all trial costs.

We affirm in part and amend in part. We find that the trial court judge properly granted a $20,000 credit for costs paid by the PCF in its settlement agreement. Additionally, the trial court properly interpreted La.R.S. 13:4533, determining that only depositions “used at trial” are com-pensable as court costs. In an effort to prove her case, plaintiff deposed several experts whose depositions were used by the Medical Review Panel to render its opinion. Since these discovery tools are required to be in written form and are necessary for proper disposition of the case, prior to filing suit, we will award costs of these depositions. Further, we find that Dr. Gary Harris’ preparation and testimony are also compensable.

I.

ISSUES

The following issues are before us on appeal:

|?,(1) whether the trial court erred in granting the defendants a $20,000 credit as costs of the trial?
(2) whether the trial court erred in disregarding the costs of depositions obtained for the purpose of presenting the case to the Medical Review Panel?
(3) whether the trial court erred in failing to award a reasonable sum for Dr. Gary Harris’ preparation and testimony?

II.

FACTS

On October 28, 1994, Billy Arrington died of pulmonary embolism at Lake Area Medical Center (“LAMC”). Prior to his death, Mr. Arrington was treated and released by Dr. Ricardo Samudia, an independent contractor of LAMC’s emergency room. Dr. Samudia failed to diagnose Mr. Arrington with pulmonary embolism, and the patient died three days later. Dr. Samudia had worked an 18-hour shift at Calcasieu Cameron Hospital, prior to beginning his shift at LAMC. Plaintiff, Susan Arrington , asserted that Dr. Samudia was clearly impaired when he treated her husband in the emergency room as a result of working consecutive shifts (with approximately a few hours break between shifts) exceeding 12 hours with little or no sleep, causing the physician to render unsatisfactory medical care.

On November 16, 2001, the jury returned a verdict in favor of the plaintiff, Susan Arrington. Judgment was entered on the verdict on January 3, 2002. Prior to trial, both Dr. Samudia and the PCF settled with the plaintiff. In conjunction with its settlement, the PCF paid $20,000 in costs.

| ^Following trial, plaintiff filed a motion to fix fees and assess costs. The trial court judge rendered a judgment awarding $7,500 in costs on behalf of Dr. Gary Harris, plaintiffs expert. Additionally, the trial court awarded $1,650.44 and $1,962.50 in costs on behalf of Arthur Shorr, for costs of taking his deposition and preparation and testimony, respectively. In addition, $500.00 was granted toward Dr. Paul Co-meaux’s bill and $6.60 was granted for copying x-rays. In this same proceeding, the trial court judge subjected the above costs to a credit of $20,000 in costs paid by the PCF prior to trial.

Plaintiff now appeals the trial court’s judgment, particularly as to costs excluded by the trial court judge and the granting of the $20,000 credit.

III.

LAW AND DISCUSSION

Plaintiff asserts that the trial court erred in granting the defendants a $20,000 credit for costs paid in a prior settlement. Additionally, plaintiff asserts that the trial court erred in excluding costs for depositions used by the Medical Review Panel. We shall address these claims together. We find that the trial court judge properly granted the credit; however, he erroneously failed to award costs for depositions used by the Medical Review Panel.

On August 15, 2002, the PCF entered into a settlement agreement with the plaintiff awarding her $390,000. Additionally, the PCF agreed to assume $20,000 in costs, though the Medical Review Panel had rendered a favorable opinion for the plaintiff.

Under La.R.S. 40:1299.47(I)(2)(b), “[t]he claimant shall pay costs of the medical review panel if the opinion of the medical review panel is in favor of said claimant.” However, “if [a] claimant is unable to pay ... the cost of the medical 14review panel as they accrue, then the costs of the medical review panel shall be paid by the health care provider, with the proviso that if the claimant subsequently receives a settlement or receives a judgment, the advance payment of the medical review panel costs will be offset.”

Based on this statute, Ms. Arrington was responsible for costs, since she received a favorable opinion from the Medical Review Panel. However, the settlement agreement indicates that the PCF paid costs in the amount of $20,000. We can only presume (because it is not indicated in the record and no written reasons were provided) that the PCF assumed costs at this stage in the proceeding because Ms. Arrington was indigent. According to the record, Ms. Arrington was permitted to proceed in forma pauperis based on La. Code Civ.P. art. 5181(A). At the time the Medical Review Panel rendered its opinion, Dr. Samudia had already settled with the plaintiff on February 19, 1999. Since Dr. Samudia was released as a defendant, the PCF stood in his shoes as the defendant. Ms. Arrington had reserved her right to proceed against the PCF, once Dr. Samudia was released. Due to her inability to pay costs pursuant to La.R.S. 40:1299.47(I)(2)(b), we must presume that this was the basis of the PCF’s decision to pay costs.

On January 16, 2001, Ms. Arrington received a favorable verdict from the jury. The jury found that LAMC had apparent authority over Dr. Samudia and was responsible for the actions of its physician leading to Mr. Arrington’s death. Pursuant to La.R.S. 40:1299.47(1)(2)(b), LAMC was now entitled to an offset for the PCF’s payment. We find that the trial court properly granted a credit for the costs paid by the PCF in its settlement.

We conclude that the costs of depositions used by the Medical Review Panel are compensable. Louisiana Revised Statutes 40:1299.47(D) provides in part:

|s(l) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only.
(2) The evidence may consist of medical charts, x-rays, ... deposition of witnesses, including affidavits and reports of medical experts, and any other form of evidence allowable by the medical review panel.

Since the medical review panel opinion was entered into evidénce at trial, we find that depositions taken for the purpose of aiding the panel in rendering its opinion is derivative and that these depositions are “used at trial.” As a result, we will award costs of the depositions used by the Medical Review Panel, as they were necessary for disposition of the case. These costs are detailed as follows:

3/20/96 Dr. Paul Comeaux — Deposition Fee $ 300.00
5/24/96 Dr. Paul Comeaux — Deposition $ 160.00
10/18/96 Patricia David — Deposition $ 239.20
10/18/96 Terry Welke — Deposition $ 636.00
10/18/96 Dr. Ricardo Samudia — Deposition $ 82.50
2/21/97 Dr. William Willis — Deposition $ 100.50
6/30/97 Dr. Thomas Leonard — Deposition $ 150.00
10/7/97 Dr. Howard Rigg — Deposition $ 230.00
10/7/97 Dr. Thomas Leonard — Deposition $ 185.50
10/7/97 Dr. Howard Rigg — Deposition $ 400.00
10/7/97 Dr. Cheryl Leblanc — Deposition $ 300.00
12/18/97 Dr. Gary Harris — Deposition $ 157.70
2/3/98 Mrs. Susan Arrington $ 162.50
3/13/98 Dr. Thomas Leonard — Deposition $ 185.50
3/13/98 Dr. Ricardo Samudia — Deposition $ 30.60
5/27/98 Dr. Steve Hedlesky — Deposition $ 303.00
66/5/98 Dr. Gary Harris — Deposition $ 24.30
7/16/98 Dr. Thomas Leonard — Deposition $ 105.50
10/16/98 ERPG — Deposition $ 133.00
10/16/98 Tim Quattrone — Deposition $ 95.00
11/5/98 Denise White — Deposition $ 65.00
9/6/00 Dr. Joseph Litner $. 700.00
11/2/00 Dr. Joseph Litner — Deposition $ 210.00
11/2/00 Dr. Gary Harris — Deposition $ 178.45
5/4/01 Dr. Ricardo Samudia — Deposition $ 50.00
5/4/01 Bill Hankins — Deposition $ 348.00
5/4/01 Arthur Shorr — Deposition $ 114.20
2/28/01 Hankins Healthcare $ 500,00
Total S6.146.45

Expert’s Preparation and Testimony

Plaintiff asserts that the trial court erred when it failed to award costs for Dr. Gary Harris’ preparation and testimony. We agree.

Dr. Gary Harris reviewed several depositions to prepare an affidavit for consideration by the Medical Review Panel. This case was set for trial 11 times from May 1998 to November 2001. Each time this case was set for trial, Dr. Harris had to prepare by reviewing the depositions and records. Also, Dr. Harris’ deposition was taken twice. Additionally, Dr. Harris, on more than one occasion, had purchased airline tickets to attend the trial, only to learn that the trial was rescheduled. As a result, plaintiff asserts that costs should be awarded for Dr. Harris’ preparation and testimony, as well as travel expenses.

[7The authority for allowing an expert witness additional compensation in excess of that allowed for a lay witness is La.R.S. 13:3666 which reads in pertinent part as follows:

A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

This court in Haas v. Audubon Indemnity Co., 98-566, p. 2 (La.App. 3 Cir. 10/21/98); 722 So.2d 1020, 1021, held that an “expert witness is entitled to compensation for his or her time in court and for preparatory work done.” Following the above law, we find that costs should be awarded for Dr. Harris’ time and preparation. The trial court awarded $7,500 rather than the requested $13,945. We award the difference between these figures, or $6,445.

Additionally, plaintiff seeks costs for Dr. Harris’ travel expenses. We find that La.R.S. 13:3666 does not permit an award of travel expenses.

| /Travel expenses for in-state witnesses are addressed in La.R.S. 13:3661, which provides that a litigant requesting a subpoena for an in-state witness residing at a distance greater than twenty-five miles from the trial location must deposit adequate funds with the clerk of court to cover the witness’ travel expenses at the rate of twenty cents a mile. Therefore, the rendition of a judgment for travel expenses in excess of this amount is not authorized by statute and must be set aside. While we recognize that the amount authorized is woefully inadequate for travel expenses, it is the only statutory authority for such an award.

Myers v. Broussard, 96-1634, pp. 26-27 (La.App. 3 Cir. 5/21/97); 696 So.2d 88, 102.

Unlike the expert in Myers, Dr. Harris is an out-of-state expert. There is no statutory authority for the recovery of travel expenses to an out-of-state witness.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court granting a $20,000 credit for advance payment is affirmed, except that an additional award of $6,445.00 is awarded to plaintiff, Susan Arrington, for Dr. Gary Harris’ preparation and testimony, as well as an additional award of $6,146.45 for depositions used by the Medical Review Panel. The total award to plaintiff is $12,591.45. For the sake of clarity, we emphasize that this award is in addition to the $11,619.54 awarded by the trial court.

AMENDED AND, AS AMENDED, AFFIRMED.

      . Billy Arrington’s widow, Susan Arrington, filed suit individually and on behalf of her two daughters, Joelle Arrington and Laura Arring-ton, who is now a major. Since Mrs. Arring-ton filed suit on behalf of her daughters, we will refer to her as the plaintiff.


source: Caselaw Access Project

author: JjCOOKS, Judge. jPETERS, J.,

license: Public Domain

text:
    LOWE’S COMPANIES, INC. v. Michael D. LEBLANC.
    No. 02-730.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayette, LA, for Appellant, Lowe’s Companies, Inc.
    Robert T. Jacques, Jr., Lake Charles, LA, for Appellee, Michael D. Leblanc.
    Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and JIMMIE C. PETERS, Judges.
   JjCOOKS, Judge.

On November 1, 1993, a trial captioned “Michael D. Leblanc v. Lowe’s, Inc.” Docket No. 93-00486, was held before the Office of Workers’ Compensation. The issues at trial were whether Leblanc’s alleged cervical and lumbar injuries were caused by and related to his on the job accident with Lowe’s. At the conclusion of the trial, the Workers’ Compensation Judge (WCJ) rendered judgment finding that Leblanc had proven that his cervical complaints were related to the work accident. However, the WCJ also found Leblanc failed to prove his lumbar complaints were related to the work accident. The WCJ specifically stated it “[did] not find Mr. Leblanc credible on the back issue and finds that Mr. Leblanc was not truthful in his testimony as to his back complaints.” Judgment was rendered on July 7, 1994.

On July 10, 2000, Lowe’s filed a 1008 Disputed Claim Form, claiming that Leblanc had willfully made false statements and misrepresentations in violation of La. R.S. 23:1208 and as a result should forfeit any right to workers’ compensation benefits. Lowe’s 1208 claim was based on Leblanc’s original claim for disability benefits under Docket No. 93-00486 in which he asserted that he injured his lumbar spine in a work-related accident on July 8, 1992; his comments to his treating physicians; his contradictory testimony given under oath at trial; and, in particular, the findings of the WCJ that she did not believe his claim and found him to be “not truthful” concerning his alleged lumbar injury. The entire record and transcript of Docket No. 93-00486 was entered into the record.

A judgment was rendered on January 9, 2002, in the present case, denying Lowe’s claim for forfeiture of benefits. The Workers’ Compensation Judge (WCJ) | 2gave the following oral reasons for judgment:

After reviewing the record, considering the law and the evidence, this court finds that the record shows that the defendant made false statements. Judge Morrow indicated he was untruthful. The claimant testified that he did not mention the back injury earlier because he wanted to work. His explanation is a plausible reason for his statement, and his explanation was not refuted. While Judge Morrow found the claimant to be incredible on the injury to the low back, a finding of untruthfulness does not in and of itself rise to fraudulent misconduct.
Therefore, this Court is not convinced that the purpose of claimant’s false statements were [sic] by a totality of the circumstances or otherwise for the purposes of receiving workers’ compensation benefits.

ANALYSIS

La.R.S. 23:1208 governs the consequences of false statements made by parties in connection with a workers’ compensation claim. Under R.S. 23:1208, in order for there to be a forfeiture of benefits, the claimant must have: (1) made a false statement or representation; (2) willfully made the statement or misrepresentation; and (3) made the statement or misrepresentation for the purpose of obtaining or defeating any benefits or payments. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7. All of these requirements must be present before a claimant is deemed to have forfeited benefits. Harris v. Bancroft Bag, Inc., 30,431 (La.App. 2 Cir. 4/9/98), 714 So.2d 44. Section 1208 is penal in nature and must be strictly construed. Wallace v. Lavergne Transport, 02-0123 (La.App. 3 Cir. 6/12/02), 819 So.2d 508, writ denied, 02-1896 (La.10/25/02), 827 So.2d 1176.

The WCJ specifically found Leblanc did not make his misrepresentations for the purpose of receiving benefits, but rather “because he wanted to work.” Factual |3findings in workers’ compensation cases are subject to the manifest error/clearly wrong standard of review. Alexander v. Pellerin Marble & Granite, 93-1698 (La.01/14/94), 630 So.2d 706. If the factfinder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.07/01/97), 696 So.2d 551.

We pretermit, however, considering the reasonableness of the judge’s characterization of Leblanc’s intent in making certain in-court misrepresentations. By its own admission, Lowe’s did not assert a 1208 claim until six years after the first trial because it felt the provision “had no teeth” and the claim was not winnable until the Resweber decision. Lowe’s made no contemporaneous motion during or immediately after the original trial to raise a 1208 claim. We also note Resweber was released nearly five years before Lowe’s decided to file the present 1208 claim.

La.Code Civ.P. art.2004 provides that a final judgment obtained by fraud or ill practices may be annulled, but said action to annul the judgment on those grounds “must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.” Lowe’s discovered Leblanc’s misrepresentations during the original trial and at the latest when the WCJ specifically stated Leblanc was not truthful in his testimony concerning his alleged lumbar injuries. Lowe’s did not timely seek reversal or annulment of the judgment awarding Leblanc benefits for his cervical injury.

In Davis v. Sewerage & Water Board of New Orleans, 469 So.2d 1144 (La.App. 4 Cir.1985), the fourth circuit court of appeal held the one-year limitation | ¿found in La.Code Civ.P. art.2004 is per-emptive, not prescriptive. See also Civello v. Johnson, 567 So.2d 643 (La.App. 4 Cir.), writ denied, 569 So.2d 987 (La.1990). As the fourth circuit noted in Davis, the caption to La.Code Civ.P. art.2004 reads “[Ajnnulment for vices of substance; per-emption of action,” an indication of legislative intent to provide a peremptive period. Davis, 469 So.2d at 1146. We note further as a general rule “if a statute creating a cause of action also provides the time period for exercise of the right created, the time period is peremptive.” Davis, 469 So.2d at 1147, (citing Guillory v. Avoyelles Railway Co., 104 La. 11, 28 So.2d 899 (1900)).

The second circuit court of appeal and the first circuit court of appeal have likewise determined that the one-year limitation provided in La.Code Civ.P. art.2004 is a period of peremption, rather than prescription. A.S. v. M.C., 96-0948 (La.App. 1 Cir. 12/20/96), 685 So.2d 644, writ denied, 97-213 (La.3/14/97), 690 So.2d 38; Burkett v. Property of Douglas, 575 So.2d 888 (La. App. 2 Cir.1991).

Peremption extinguishes a cause of action. Thus, the lapse of the one-year peremptive period under La.Code Civ.P. art.2004 extinguished whatever cause of action Lowe’s could have asserted under La.R.S. 23:1208. The lapse of the one year peremptive period may be noticed by this court, on its own motion. La.Code Civ.P. art. 927. Lowe’s right to assert a 1208 claim was nullified one year from the date it first learned of the false statements and misrepresentations referenced in its 1008 Disputed Claim Form. A cause of action simply does not exist under Section 1208. Lowe’s procedurally failed to preserve the claim which it now has no right to judicially pursue.

DECREE

| .JFor the foregoing reasons, the judgment of the Office of Workers’ Compensation denying Lowe’s claim for forfeiture of benefits under La.R.S. 23:1208 is affirmed. Costs of this appeal are assessed against Lowe’s.

AFFIRMED.

PETERS, J., concurs and assigns written reasons.

jPETERS, J.,

concurring.

The majority opinion affirms the judgment of the workers’ compensation judge (WCJ) denying Lowe’s Companies, Inc.’s (Lowe’s) request for forfeiture of benefits under La.R.S. 23:1208. While I agree with the result reached by the majority, I respectfully disagree with the basis for that result.

The majority pretermits addressing the merits of the claim by construing Lowe’s 1208 claim as an action to annul a final judgment obtained by fraud or ill practices pursuant to La.Code Civ.P. art. 2004. Applying La.Code Civ.P. art. 2004(B), the majority concludes that the action to annul was not timely. X do not find La.Code Civ.P. art. 2004 to be applicable to this matter.

Neither Lowe’s nor Mr. Leblanc raised the issue of the applicability of La.Code Civ.P. art. 2004. I surmise that they did not do so because Mr. Leblanc did not obtain a judgment by fraud or ill practices. In fact, the WCJ actually denied Mr. Leblanc’s claim for disability benefits regarding his alleged lumbar injuries because the WCJ found him to be untruthful in that regard. Rather, Mr. Leblanc obtained a judgment for benefits only in connection with his cervical injuries, for which the WCJ found him credible. In other words, nothing was “obtained” by the alleged false representations.

| ¡Additionally, application of La.Code Civ.P. art. 2004 to the facts of this case would have far-reaching repercussions not intended by La.R.S. 23:1208. Specifically, when a judgment is set aside for fraud or ill practices, it is set aside in its entirety. In this case, the remedy under La.Code Civ.P. art. 2004 would be the return of all benefits paid to date by Lowe’s, although Lowe’s had knowledge of the alleged fraud over six years prior to the filing of its 1208 claim. In contrast, under La.R.S. 23:1208(D), the right to restitution is retroactive “only up to the time the employer became aware of the fraudulent conduct.” To supply a 2004 objection, which we may not do in the first instance, could have resulted in a windfall for Lowe’s in this case, surely a result not intended under the quid pro quo compensation scheme, had the majority not found that peremption had occurred to extinguish the claim.

Because of the continuing nature of a workers’ compensation claim, there seems to be no prescriptive or preemptive period for asserting a 1208 claim. In fact, had Lowe’s simply paid Mr. Leblanc benefits and six years later discovered that there had been a 1208 violation that occurred immediately after the alleged accident giving rise to the claim, nothing would have prevented it from instituting a 1208 filing. Lowe’s could seek restitution of benefits from the time it became aware of the fraudulent conduct under La.R.S. 23:1208(D) as well as forfeiture of future benefits under La.R.S. 23:1208(E).

The majority acknowledges that “Lowe’s discovered Leblanc’s misrepresentations during the original trial and at the latest when the WCJ specifically stated Leblanc was not truthful in his testimony concerning his alleged lumbar injuries.” While it certainly seems inequitable to allow Lowe’s to sit in the gap for six years and then seek to have Mr. Leblanc’s benefits terminated, the only ^procedural vehicle that might be applicable to avoid addressing the merits of the claim arises under La.R.S. 13:4231(3). However, we cannot raise the exception of res judicata on our own motion. See La.Code CivJP. art. 927(B).

In my opinion, we are left with no choice but to consider the merits of the 1208 claim. In doing so, I would affirm the WCJ’s judgment on the basis that there is no manifest error in her determination in that regard.

      . We note in Docket No. 93-00486, the presiding WCJ was the Honorable Sharon McCauley. In the present suit, the Honorable Charlotte Bushnell was the presiding WCJ.


author: JjPICKETT, Judge.

text:
    STATE of Louisiana v. Westley JONES, Jr.
    No. 02-1176.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Rehearing Denied March 26, 2003.
    J. Phil Haney, District Attorney, Thomas C. Senette, Assistant District Attorney, Franklin, LA, for State/Appellee, State of Louisiana.
    Louisiana Appellate Project, Carey J. Ellis, III, Rayville, LA, for Defendant/Appellant, Westley Jones, Jr.

      Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, Judge.

On May 10, 2001, the defendant, West-ley Jones, Jr., was indicted by a grand jury for the charges of aggravated rape, in violation of La.R.S. 14:42, and second degree kidnapping, in violation of La.R.S. 14:44.1. On May 30, 2001, the defendant was arraigned, and he pled not guilty to the charges. Jury selection began in this matter on March 4, 2002, and the trial lasted until March 7, 2002.

On March 7, 2002, the jury returned guilty verdicts as to both charges. Defense counsel filed a Motion for New Trial on March 13, 2002, and this motion was denied on the same day. On March 13, 2002, the defendant waived sentencing delays and was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence for the offense of aggravated rape and to forty years at hard labor for the offense of second degree kidnapping. Defense counsel moved to appeal the defendant’s convictions on this same date.

The defendant presents one assignment of error in this appeal: “[t]he State failed to present sufficient evidence to support the verdicts, convictions of second degree kidnapping and aggravated rape.”

FACTS

On the morning of March 11, 2001, the defendant kidnapped the victim from the parking lot of a Wal-Mart store in Lafayette. The defendant repeatedly threatened to kill the victim, and the victim was stabbed multiple times while the defendant brought the victim to a secluded area in St. Martin Parish. The defendant raped the victim in the secluded area of St. Martin Parish, and the victim was only able to escape from the defendant when she jumped out of the moving vehicle which the defendant was driving.

I ^ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note one error patent involving the defendant’s sentence for second degree kidnapping. La. R.S. 14:44.1 requires that at least two years of the sentence be imposed without benefit of parole, probation or suspension of sentence. For second degree kidnapping, the defendant was sentenced to serve forty years at hard labor to run concurrently with the sentence he received for aggravated rape. The judge failed to impose any portion of the sentence without benefits; thus, the defendant received an illegally lenient sentence.

The supreme court has held that an appellate court may recognize an illegally lenient sentence on its own pursuant to La. Code Crim.P. art. 882. State v. Williams, 00-1725 (La.11/28/01); 800 So.2d 790. Thus, this court may recognize the trial court’s failure to impose at least two years of the sentence without benefits. Therefore, we vacate the sentence imposed for second degree kidnapping and remand for resentencing consistent with this opinion.

DISCUSSION

In his sole assignment of error, the defendant contends that “[t]he State failed to present sufficient evidence to support the verdicts, convictions of second degree kidnapping and aggravated rape.” The defendant asserts that he is not the person who committed these crimes and that this is a ease of mistaken identity. The defendant points out in his brief that “[tjhrough-out this proceeding, the Defendant did not deny that these horrible crimes had occurred, but maintained that he was not the person who committed them.” Although the defendant suggests that this case is about |smistaken identity, due to the general nature of his brief, we will conduct a full review of the sufficiency of the evidence.

The analysis for sufficiency claims is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97); 695 So.2d 1367, 1371, appeal after remand, 97-1682 (La.App. 3 Cir. 6/3/98); 715 So.2d 518.

The defendant was charged with the offenses of aggravated rape and second degree kidnapping. With respect to the charge of aggravated rape, La.R.S. 14:42(A) provides:

A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
(1) When the victim resists the act to the utmost, but whose resistance is overcome by force.
(2) When the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.
(3) When the victim is prevented from resisting the act because the offender is armed with a dangerous weapon.
| ¿(4) When the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
(5) When two or more offenders participated in the act.
(6) When the victim is prevented from resisting the act because the victim suffers from a physical or mental infirmity preventing such resistance.

With respect to the charge of second degree kidnapping, La.R.S. 14:44.1 provides, in pertinent part:

A. Second degree kidnapping is the doing of any of the acts listed in Subsection B wherein the victim is:
(1) Used as a shield or hostage;
(2) Used to facilitate the commission of a felony or the flight after an attempt to commit or the commission of a felony;
(3) Physically injured or sexually abused;
(4) Imprisoned or kidnapped for seventy-two or more hours, except as provided in R.S. 14:45(A)(4) or (5); or
(5) Imprisoned or kidnapped when the offender is armed with a dangerous weapon or leads the victim to reasonably believe he is armed with a dangerous weapon.
B. For purposes of this Section, kidnapping is:
(1) The forcible seizing and carrying of any person from one place to another; or
(2) The enticing or persuading of any person to go from one place to another; or
(3) The imprisoning or forcible secreting of any person.

The victim, Ellen Crawford, testified at the defendant’s trial about her kidnapping and rape. The victim testified that she had been shopping at Wal-Mart on the morning of March 11, 2001, and after purchasing her items, she returned to her vehicle in the parking lot of the Wal-Mart. While placing her purchases in her | ^vehicle, the victim stated that “she felt somebody grab [her] and everything went black.” The following colloquy occurred between the state and the victim regarding her abduction:

Q. Did you hear anything or was anything said to you by the person who grabbed you?
A. Yes, sir. “Give it up. Get in and drive.”
Q. What was your attacker trying to do at that time?
A. Get me into the truck. That was his main objective. And my main objective was that he would not.
Q. What was your attacker doing to try to get you into the truck?
A. He was stabbing me in the right side of my back.
* * *
Q. Was anything being said by your attacker while he as [sic] doing this?
A. “Get in the truck. Get in the truck. I’ll kill you if you don’t get in the truck. I’ll kill you. I mean it. I’ll kill you.” He doesn’t put “l’s” on the ends of his words.

The victim further testified about her kidnapping in the following exchange with the state:

Q. After, after your attacker had started the truck and had you pinned on the floorboard, what happened next?
A. As soon as I heard the motor of the truck start, I knew I had to try to get out of that truck. The only thing I could think of to do: I was laying on my right side. I thought if I kicked that passenger window out, if I break the glass, somebody will hear and see and they will come to my rescue....
DC*. And what was your assailant’s reaction to you trying to kick the window out?
A. He stabbed my left leg right here....
* * H*
Q. What happens next after he starts the vehicle and begins to drive away?
A. He kept holding my head down and I took the opportunity to look through my hair ... I looked up at him....
Q. Did he say anything to you while you all were driving?
A. Only threatening me. “You had better stay down. I’ll kill you.”

When the defendant allowed the victim to sit up, the victim stated that she did not recognize the area where the defendant brought her. The victim testified that defendant raped her in the following exchange with the state:

Q_You said he raped you. Did he have vaginal intercourse with you?
A. Yes, sir. Yes, sir, he did.
Q. And he did penetrate you?
A. Yes, sir-
Q. Were you scared for your life at this time?
A. Yes, sir.
Q. Do you think you were going to leave that truck alive?
A. No, sir, I did not. No.
|7Q. After the rape, did he make any statements as to what he intended to do with you?
A. Yes, sir. That he had to find somewhere where he could wash me. He didn’t want them to find semen on me. Those were his very words.

The victim testified that after the rape, which occurred in her vehicle, the defendant got back into the driver’s seat and “began to drive the truck again.” The victim further testified about how she leapt out of her vehicle while the defendant was driving in an effort to escape from her captor.

At the defendant’s trial, both Charles Brandt and Glen Childress, who are related as brothers-in-law, testified about finding the victim in an isolated area of St. Martin Parish right after she jumped from the vehicle being driven by the defendant. Both Mr. Brandt and Mr. Childress saw the victim as she “rolled out fi’om underneath the vehicle,” and they both testified about the victim telling them that she had been kidnapped, raped, and stabbed. Both Mr. Brandt and Mr. Childress testified that the victim’s physical appearance was consistent with the victim’s story, and both men identified the type of vehicle from which the victim leapt as a “maroon Chevy pick-up.”

Detective Kendal Gibson of the Lafayette Police Department testified about his investigation into the kidnapping and rape of the victim. Detective Gibson testified that the victim’s vehicle was located on March 12, 2001 (the day after the incident), and was secured and turned over to the Lafayette Police Department’s “crime scene personnel.” Detective Gibson testified that a “latent print” was removed from the vehicle which matched the defendant’s fingerprint. Detective Gibson also testified that a “tip” was received at the Lafayette Police Department regarding the defendant’s | ¿possible connection to the victim’s vehicle. Detective Gibson testified that the woman who called in the “tip” “got [him] connected with Mr. Jones and [they] had made an appointment to meet together....” Through a series of telephone calls to the defendant, Detective Gibson set up other appointments with the defendant after the defendant consistently failed to show up at any of the scheduled appointments.

After receiving the defendant’s address through directory assistance, Detective Gibson went to the defendant’s house and questioned the defendant after Mirandiz-ing him. Detective Gibson stated, “As I first observed Mr. Jones, which was the first time I made contact with him, I noticed that his body frame and his physical description was matching that of a description given to me by Ms. Crawford.” Detective Gibson testified that he arranged a “photographic line-up,” including the defendant’s picture, to show to the victim. Detective Gibson testified that he showed the line-up to the victim, and the victim identified the defendant in the line-up and “was 100% sure” that the defendant was her assailant.

Detective Gibson testified that Stella Calíais was the woman who called in the “tip” at the Lafayette Police Department, and Ms. Calíais testified at the defendant’s trial. Ms. Calíais testified that she had been a friend of the defendant’s family for years and that the defendant called her on the morning of the offense between 7:30 a.m. and 8:00 a.m. Ms. Calíais stated that the defendant telephoned her from the “RaceTrack” service station across the street from the Wal-Mart where the victim was abducted. Ms. Calíais testified that the defendant called her the following morning and that the defendant stopped by her apartment later that day. Ms. Calíais testified that the defendant arrived at her apartment in “a burgundy Chevy pick-up truck,” although when Ms. Calíais asked about the truck, the defendant claimed that he rode |9“with a friend.” Ms. Calíais testified that she called the police about the truck, and Ms. Calíais helped Detective Gibson get in touch with the defendant. During the defendant’s trial, Detective Evans Williams of the St. Martin Parish Sheriffs Office testified that the defendant became a suspect in this case “by the caller tip that was placed by a subject in Lafayette” and by “the prints that was [sic] located inside the vehicle.” Detective Williams testified that the victim provided the St. Martin Parish Sheriffs Office with a description of her assailant, and Detective Williams noted that he assisted “in getting a photo line-up to present to the victim.” With respect to the photo line-ups, the following colloquy took place between the state and Detective Williams:

Q. Okay. How many line-ups was shown to the victim?
A. There was two line-ups.
Q. And you were present when both of those line-ups were showed to Ms. Crawford?
A. Yes, sir.
Q. Okay. And what, who did Ms. Crawford pick out?
A. Westley Jones, Jr.
Q. In both line-ups?
A. Both line-ups, 100%.
Q. Did it take her very long?
A. Not long.
Q. I’m sorry what did you say after that?
A. 100%, she positively identified him as being the assailant.

.J^The victim’s vehicle was used in the kidnapping, and Detective Dwayne Preje-an of the Lafayette Police Department testified about fingerprints that were found in the victim’s vehicle. Defense counsel stipulated that Detective Prejean is an expert in fingerprint analysis. Out of nineteen fingerprints that were able to be “lifted” from the interior of the victim’s vehicle, Detective Prejean affirmed that five fingerprints matched the defendant. With respect to the fingerprints found in the victim’s vehicle, the state asked Detective Prejean, “Any chance those prints were made by someone other than Westley Jones?” Detective Prejean responded, “No.” The state asked Detective Prejean, “But what you’re saying is that without a doubt, five of those prints that were lifted from the truck belong to Westley Jones, Jr.?” Detective Prejean stated, “That’s correct. Without a doubt.”

The defendant contends that his fingerprints were in the victim’s vehicle because he rode in the vehicle as a passenger. Defense witness Samuel Charles, III, stated that he got a ride from the defendant in a vehicle having the same description as the victim’s vehicle. The following colloquy occurred between Mr. Charles and defense counsel:

Q. Okay. And where did you see “Hop”?
A. I seen him on the street in front of a nightclub that I was walking out of.
Q. And did you request anything from him?
A. Yeah. I asked him for a ride to the Waffle House.
Q. Was he alone or was he with somebody?
A. Yeah. He was the passenger in the vehicle and they had another guy there driving, Jacoby.

In However, Jennifer Mose, a former police officer with the Lafayette Police Department, testified that she encountered the victim’s vehicle on Monday, March 12, 2001, and the victim’s vehicle was being driven by the defendant. The following colloquy took place between Ms. Mose and the state:

Q. Bottom- line, Officer, you had an unobstructed view of the driver of that vehicle; correct?
A. That is correct.
Q. And the bottom line is you identified that driver in a photo line-up as Westley Jones, Jr.?
A. Yes, I did.

Dr. Jason Chambers, an emergency room doctor, testified that he was the doctor on call when the victim was brought to the emergency room of Gary Memorial Hospital (now St. Martin Hospital). Dr. Chambers testified that the victim told him that she had been kidnapped and raped. The state asked Dr. Chambers, “And Dr. Chambers, you had the opportunity to observe Miss Crawford’s physical condition; correct?” Dr. Chambers replied, “Assuredly.” The state then asked Dr. Chambers, “And did her physical condition, was it consistent with the statement that she gave you?” Dr. Chambers replied, “The physical condition was consistent with the statement she gave me.” Dr. Chambers performed “a rape or sexual assault kit” on the victim which included the collection of specimens from the victim in the form of a vaginal swab and slide. The vaginal swab and slide “were placed in the sexual assault kit and provided to the law enforcement officers” present at the hospital.

Ray Wickenheiser, Laboratory Director of Acadiana Criminalistics Laboratory, testified about the DNA analysis which was performed on the samples obtained from the victim’s rape kit. The following colloquy took place between the state and Mr.

^Wickenheiser:

Q. All right. Not [sic] just so that we are clear: When you talk about a vaginal swab and a vaginal slide, a vaginal swab is similar to a Q-tip type device that is used to swab the vagina for samples; is that correct?
A. That is correct.
Q. Okay. And then the swab is rolled across the slide ...
A. That is correct.
Q .... to deposit any materials that are found?
A. Right. What the objective is to determine if sperm is present. In this case there was sperm found on the slide and identified. And then the next objective is to identify who the sperm may or may not have come from. So in this particular case, once the sperm were identified on those exhibits, then the DNA analysis was conducted.

Further along in Mr. Wickenheiser’s testimony, the following exchange took place with the state:

Q. Having created the profile of the male donor, based on the vaginal slide, and comparing that to West-ley Jones’s reference sample, can you tell me who is the donor? The donor on the vaginal slide?
A. Right. In my opinion, once you get a profile that matches on every area of these 13 areas, my opinion is it originated from the same source. That is the donor of the profile, the sperm that was found in the vaginal slide, and it is the same donor as that of the known sample from Westley Jones.
Q. So you can say within a scientific certainty that Westley Jones is the donor?
A. Yes.

The following colloquy occurred between the state and the victim during the victim’s testimony about her ordeal:

113Q. Is there any doubt in your mind that the man in te [sic] courtroom today that you have identified as Westley Jones is the person that abducted you from the Wal-Mart parking lot in Lafayette, seized you against your will, forced you into your truck, stabbed you multiple times, and raped you?
A. Absolutely it is him. I know it is him.
Q. Any doubt in your mind that that man sitting at that table is the person that abducted you and raped you?
A. No, sir. Not one shred of doubt. He stabbed, he robbed, he kid-naped, and he raped me. He ruined my life. That is him.

The Louisiana Supreme Court in State v. Neal, 00-0674 (La.6/29/01); 796 So.2d 649, stated:

As a general matter, when the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Smith, 430 So.2d 31, 45 (La.1983); State v. Brady, 414 So.2d 364, 365 (La.1982); State v. Long, 408 So.2d 1221, 1227 (La.1982). However, positive identification by only one witness is sufficient to support a conviction. See State v. Mussall, 523 So.2d 1305, 1311 (La.1988) (generally, one witness’s positive identification is sufficient to support the conviction); State v. Ford, 28,724 (La.App.2d Cir.10/30/96), 682 So.2d 847, 849-50, writ denied, 99-0210 (La.5/14/99), 745 So.2d 12.... The trier of fact makes credibility determinations and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, a reviewing court may impinge on the “fact finder’s discretion only to the extent necessary to guarantee the fundamental due process of law.” Mussall, 523 So.2d at 1310 (La.1988).

Id. at p. 11, 658.

In the instant case, staff submits that the state did “negate any reasonable probability of misidentifieation” through the positive identification of the defendant by the victim, through the fingerprint analysis and identification 114of the defendant’s fingerprints by Detective Prejean, and through the DNA analysis and identification of the defendant’s DNA by Mr. Ray Wickenheiser. Thus, it was not unreasonable for the jury to conclude that the defendant was the perpetrator of these crimes.

The evidence and testimony presented at the defendant’s trial was sufficient such that “any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Kennerson, 96-1518, p. 5; 695 So.2d 1367, 1371. The victim’s testimony regarding her kidnapping and rape was corroborated through the testimony of Mr. Brandt and Mr. Childress who saw the victim as she leapt from her vehicle. The victim’s injuries were documented by law enforcement personnel as well as the medical staff at Gary Memorial Hospital. A “rape kit” was performed on the victim, and DNA analysis confirmed that the defendant’s sperm was present in samples taken from the victim. Detectives Gibson and Williams testified that the victim quickly identified the defendant from photographic line-ups. Detective Prejean testified that the defendant’s fingerprints were “lifted” from the interior of the victim’s vehicle. The State proved the elements of each offense beyond a reasonable doubt, and thus, this assignment of error has no merit.

DECREE

The defendant’s convictions are affirmed. The defendant’s sentence for second degree kidnapping is vacated and the case is remanded to the trial for resentenc-ing consistent with this opinion; in all other respects the sentence imposed by the trial court is affirmed.

CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART; SENTENCE VACATED IN PART; AND REMANDED.

      . The defendant's nickname is "Hop.”


author: SULLIVAN, Judge.

text:
    PUMPELLY OIL, INC. v. RIBBECK CONSTRUCTION CORPORATION.
    No. 02-669.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.
    Richard A. Chozen, Kevin J. Koenig, Raggio, Cappel, Chozen & Berniard, Lake Charles, LA, for Plaintiff/Appellee Pum-pelly Oil, Inc.
    Frank C. Miller, III, Attorney at Law, Lake Charles, LA, for Defendani/Appel-lant Ribbeck Construction Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SULLIVAN, Judge.

For the reasons expressed in Pumpelly Oil, Inc. v. Ribbeck Construction Co., 02-868 (La.App. 3 Cir. 02/05/03); 838 So.2d 88, the writ application filed by Ribbeck Construction Corporation is denied.

WRIT DENIED.


author: LKUHN, J.

text:
    Randall FREDERIC v. ZODIAC DEVELOPMENT.
    No. 2002 CA 1178.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Rehearing Denied March 24, 2003.

      Victor Marcello, Gonzales, Counsel for Plaintiff/Appellee Randall Frederic.
    Daniel Atkinson, Baton Rouge, Counsel for Defendants/Appellants Zodiac Development and Mohammed Shamma.
    Nan Landry, Lafayette, Counsel for Defendants/Appellants Five Corners CGU Insurance Co., Norman Bacon and James Brooks.
    Todd Delcambre, Lafayette, Counsel for Defendant/ Appellee Intervenor — Zurich North Am. Ins.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   LKUHN, J.

Defendants-appellants, Zodiac Development, a Joint Venture (Zodiac Development), Five Korners, L.L.C. (Five Kor-ners), Norman Bacon, James Brooks, Mohammed M. Shamma, and American Employers Insurance Company, appeal a judgment overruling exceptions raising the objections of lack of personal jurisdiction over nonresident, Shamma, and improper venue. For the reasons that follow, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

According to the allegations of the petition instituting this lawsuit, on October 9, 2000, Randall Frederic, an employee of Capitol City Glass, and his coworker, Jason Austin, were on the job at the Essen Centre, replacing a plate glass panel which, pursuant to the terms of the job, was retrieved out of the building stock. Assisting the Capitol City Glass employees was James Brooks, who worked on behalf of Zodiac Development, the owner of the Essen Centre building. Frederic and Brooks jointly held vertically-stacked panels as Austin attempted to locate a piece of wood to slide out the replacement glass panel from the stack. Brooks received a call on his mobile phone from his supervisor Norman Bacon and stepped to the side to operate the phone, releasing his hold on the stack of glass. As a result, the entire stack, which allegedly weighed about 1800 pounds, fell on Frederic, causing him severe injuries.

| oFrederic filed a petition for damages in Ascension naming as defendants: Brooks; Brook’s supervisor and Essen Centre building manager, Bacon; the Essen Cen-tre building owner, Zodiac Development; and the partners of Zodiac Development: Five Korners, a Louisiana limited liability corporation, and Shamma, an individual who resides in Cincinnati, Ohio. Defendants filed a declinatory exception raising an objection of improper venue. And Shamma filed a declinatory exception of lack of personal jurisdiction. After a hearing, the trial court overruled the exceptions, and defendants appealed.

DISCUSSION

Louisiana’s Long-Arm Statute, which is set forth in La. R.S. 13:3201, provides the circumstances under which a Louisiana court may exercise personal jurisdiction over a nonresident. And a cause of action described in La. R.S. |413:3201 may be instituted in the parish where the plaintiff is domiciled. La. R.S. 13:3203.

We initially that note in this appeal, defendants have raised no assertions challenging the applicability of La. C.C.P. art. 73, which permits, among other things, an action for the recovery of damages for

over nonresident defendant Shamma, only Shamma is a proper party to raise this decli-natory defect. See A & P Boat Rentals, Inc. v. American Lloyd’s, 592 So.2d 1361, 1364 (La. App. 1st Cir.12/27/91). Therefore, in this appeal, we consider the exception only insofar as it has been raised by Shamma. an offense or quasi-offense against joint or solidary obligors to be brought in the parish where the plaintiff is domiciled if the parish of plaintiffs domicile would be a parish of proper venue against any defendant under R.S. 13:3203.

In overruling the exception objecting to improper venue raised by all defendants, the trial court applied La. R.S. 13:3203 and C.C.P. art. 73 and concluded that the district court in Ascension Parish had personal jurisdiction over nonresident Shamma under Louisiana’s Long-Arm Statute. Thus, on appeal of the judgment overruling their exception objecting to improper venue, defendants initially challenge the trial court’s determination on Shamma’s exception raising the objection of lack of personal jurisdiction.

Appellate courts conduct a de novo review of the legal issue of personal jurisdiction over a nonresident by a Louisiana court. Spomer v. Aggressor Intern., Inc., 2000-1646, p. 4 (La.App. 1st Cir.9/28/01), 807 So.2d 267, 271, writ denied, 2001-2886 (La.1/25/02), 807 So.2d 250. Under La. R.S. 13:3201, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the Louisiana Constitution and the Constitution of the United States. Therefore, the limits of La. R.S. 13:3201 and the limits of constitutional due process are coextensive, and the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements. A & L Energy, Inc. v. Pegasus Group, 2000-3255, p. 4 (La.6/29/01), 791 So.2d 1266, 1270.

The due process test requires that in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. State of Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95, 161 A.L.R. 1057 (1945); de Reyes v. Marine Mgmt. and Consulting, 586 So.2d 103, 105 (La.1991). In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction — “general” and “specific.” A state exercises general jurisdiction when the defendant’s contacts with the state are not related to the lawsuit. Specific jurisdiction, on the other hand, is exercised when the suit arises out of or is related to the defendant’s contacts with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 nn. 8 & 9, 104 S.Ct. 1868, 1872 nn. 8 & 9, 80 L.Ed.2d 404 (1984); Spomer, 2000-1646 at p. 5, 807 So.2d at 271. The two-part minimum contacts/fairness analysis applies to the assertion of specific as well as general jurisdiction, de Reyes, 586 So.2d at 109.

n When a forum seeks to exercise specific jurisdiction over an out-of-state defendant who has not consented to suit there, the requirement of meaningful minimum contacts is satisfied when the defendant has purposefully directed his activities at residents of the forum and the litigation results from alleged injuries arising out of or related to those activities. Id. at 106. When the cause of action, however, does not arise out of the defendant’s purposeful contacts with the forum, due process requires that the defendant be engaged in continuous and systematic contact to support the exercise of general jurisdiction. A & L Energy, Inc., 2000-3255 at p. 6, 791 So.2d at 1271. Contacts may be effected by mail and electronic communication, as well as physical presence. Spomer, 2000-1646 at p. 5, 807 So.2d at 272.

The second prong of the analysis is the fairness of the assertion of jurisdiction. The defendant’s conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). Once the plaintiff meets the burden of proving minimum contacts, a presumption of reasonableness of jurisdiction arises, and the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum. Spomer, 2000-1646 at p. 6, 807 So.2d at 272. In determining this issue, the court must examine the defendant’s burden in litigating in the forum state, the forum state’s interest, the plaintiffs interest in convenient and effective relief, the | -¿judicial system’s interest in efficient resolution of controversies, and the state’s shared interest in furthering fundamental social policies. Asahi Metal Indust. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987).

In this case, the evidence shows that on the date of Frederic’s injuries, Zodiac Development was a joint venture partnership formed under the laws of Louisiana of which eighty percent was owned by Five Korners and twenty percent by Shamma. The principal place of business, according to the version of the Articles of Partnership in effect on October 9, 2000, the date of Frederic’s injuries, was the Essen Centre Building (5353 Essen Lane, Baton Rouge, LA 70809). The same version of the partnership articles, in a section entitled, “Rights and Powers of Joint Ven-turers,” stipulated, “Shamma is authorized on behalf of the Venture to do, perform and oversee” the administrative and managerial functions necessary or appropriate for the business of Zodiac Developments.

Zodiac Development partner, Five Kor-ners, is a Louisiana limited liability corporation that on October 9, 2000, was owned by Shamma and three of his children. According to the Initial Report of Five Kor-ners, the registered office for the limited liability corporation was Suite 650 of the Essen Centre Building (5353 Essen Lane, Baton Rouge, LA 70809). And Shamma was the duly-authorized manager of Five Korners insofar as its participation in the Zodiac Development partnership.

Because under La. C.C. art. 2801 a partnership is a juridical person, distinct from its partners, nonresident Shamma urges that jurisdiction over the partnership does not necessarily confer jurisdiction over the individual partners. He maintains |sthat he has never lived in Louisiana or engaged in any business other than his partnership interest in Zodiac Development, which he describes as merely “an investment.” Shamma characterizes the address at the Essen Centre used in the Zodiac Development and Five Korners documents as only “a correspondence address.”

In the deposition testimony admitted into evidence, Shamma admitted that the administrative and managerial functions were assigned to him in the Zodiac Development partnership articles. Although he pointed out that the articles permitted him to delegate many of the details of the day-to-day operations of the Essen Centre building, Shamma conceded that, acting on behalf of Zodiac Development, he had entered into a contractual arrangement with Bacon to manage the building. The contract between Zodiac Development and Bacon designated Bacon as an “independent contractor.” But Shamma admitted, pursuant to the independent contract arrangement, Bacon reported directly to him in the chain of command for Zodiac Development.

The specific powers expressly set forth in the Zodiac Development Articles of Partnership that Shamma retained subsequent to his delegation of authority to Bacon included selling property, borrowing money in the name of the joint venture partnership, and making distributions to the partners. Shamma’s delegation to Bacon (and to a Louisiana Certified Public Accountant) of express duties assigned to him in the Zodiac Development Articles of Partnership included payment and preparation of federal and state taxes and maintenance of the books, accounts, and records of Zodiac Development. Bacon, who according to Shamma was delegated Irresponsibility for payment of all the expenses arising from the day-to-day expenditures necessary to operate Essen Cen-tre, was given a signatory power on the Zodiac Development checking account from which payments were made. But Shamma retained a signatory power for the Zodiac Development account and received copies of the bank statements. Although keeping copies of the leases of the office space in Essen Centre were the responsibility of Bacon, he was required to consult with Shamma before negotiating the terms of any lease agreement, and final leases were signed by Shamma in the capacity of “Landlord,” on behalf of Zodiac Development.

Shamma stated that subsequent to construction of the Essen Centre in 1989, he came to Louisiana no more than three or four times a year to tend to his investment interest in Zodiac Development. At the deposition, Shamma was unable to recall the frequency of his non-physical contact with Bacon, i.e., conversations engaged in by telephone and other electronic means. But he testified that he could be talking with Bacon as often as “twice a day” when they were negotiating the lease of office space. Although adamant that the location was merely for correspondence purposes, Shamma conceded that 5353 Essen Lane, Suite 650, which was the address he used in the Five Korners documentation provided to the Louisiana Secretary of State, was the operating office for Bacon.

According to the allegations of Frederic’s lawsuit, Shamma’s fault in this lawsuit is the result of his act or omission in the hiring and overseeing of office building manager Bacon, which may include the delegation of power and responsibility to incompetent personnel as well as Sham-ma’s alleged failure to |1flprovide Bacon, and those to whom Bacon delegated, with proper work instructions and safety procedures. Shamma could reasonably anticipate that respondeat superior claims would be asserted against him about his activities in Louisiana as the Zodiac Development agent bearing final responsibility for the managerial and administrative functions of a building in which an invited guest was injured. See e.g., Hughes v. Goodreau, 2001-2107 (La.App. 1st Cir.12/31/02), 836 So.2d 649, (principal held liable for actions of its independent contractor agents). These connections between Shamma and Zodiac Development, a Louisiana partnership, as well as Sham-ma’s interactions through telephonic and other electronic communications with Zodiac Development agent Bacon, sometimes as often as “twice a day,” clearly evince that nonresident Shamma was the person in the chain of command responsible for the managerial and administrative functions of Zodiac Development. The totality of the contacts between Shamma and Louisiana convinces us Shamma “purposefully availed [himself] of the privilege of conducting activities within the forum state,” both directly, through his contacts with Zodiac Development, and indirectly, through his agent, Bacon. The nature and extent were such that he could “reasonably anticipate being haled into court in the forum state.” Based on the allegations of Frederic’s petition, we find that this suit arises out of and/or is related to Shamma’s contacts with Louisiana.

We also find that through his involvement in the negotiations of the office leases at the Essen Centre, particularly his representation of Zodiac Development Inin the capacity of Landlord, Shamma engaged in continuous and systematic contact with the State of Louisiana so as to satisfy Frederic’s burden of proof.

The exercise of personal jurisdiction over these defendants under the facts of this case would not offend traditional notions of fair play and substantial justice. Nonresident Shamma used Louisiana lawyers to create Five Korners, a Louisiana limited liability corporation. Nonresident Shamma then entered into a joint venture partnership, formulated under the laws of Louisiana, with Louisiana resident Five Korners. Shamma has offered no evidence showing that litigation of this matter in Louisiana would be a hardship. Almost all the evidence necessary for the trial of this matter is located in Louisiana. And the contract between Frederic’s employer and Zodiac Development that placed plaintiff on the Essen Centre premises was executed in Louisiana.

When a nonresident has deliberately engaged in significant activities within a state or has created continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there, and because his activities are shielded by the benefits and protections of the forum’s laws, it is presumptively not unreasonable to require the defendant to submit to the burdens of litigation in that forum as well. de Reyes, 586 So.2d at 106. We find Shamma has failed to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice so as to overcome the presumption of reasonableness of jurisdiction shown by Frederic. The trial court’s overruling of Shamma’s exception of personal jurisdiction was correct.

| ^Because defendants raise no other contentions challenging the trial court’s conclusion that Ascension Parish is a correct venue under La. R.S. 13:3203, through La. C.C.P. art. 73, we find the overruling of defendants’ exception objecting to venue is also correct.

DECREE

For the reasons articulated, the trial court’s judgment overruling the declina-tory exception objecting to personal jurisdiction raised by Shamma and that objecting to venue raised by all the defendants is affirmed. All costs of this appeal are assessed against defendants, Zodiac Development, a Joint Venture (Zodiac Development), Five Korners, L.L.C. (Five Korners), Norman Bacon, James Brooks, Mohammed M. Shamma, and American Employers Insurance Company.

AFFIRMED.

      . While the petition names "CGU Insurance Company" as a defendant, "American Employers Insurance Company” is the only insurer-defendant to have joined in the declina-tory exception objecting to venue.

        . Although all defendants filed the exception objecting to the court’s personal jurisdiction

      . The overruling of the declinatory exception objecting to venue is generally considered an appealable judgment because although it is interlocutory (i.e., it does not determine the merits but only preliminary matters in the course of the action, see La. C.C.P. art. 1841), it is one that may cause irreparable harm. See La. C.C.P. art.2083; see also A & P Boat Rentals, Inc., 592 So.2d at 1362, which cites Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981)(noting irreparable injury occurs if any ruling cannot as a practical matter be corrected on appeal and stating as an example that once the trial court overrules an exception to venue and the case is tried on the merits in the wrong venue, an appellate court has no practical means of correcting the error on appeal) Cf. Brown v. Drillers, Inc., 401 So.2d 366, 367 (La.App.1981)(after this court, finding no showing of irreparable harm, declined to review a judgment overruling objection of improper venue under La. R.S. 13:3203, supreme court remanded, ordering us to rule on the merits). We note the venue objection arises out of, is intertwined with, and dependent upon the trial court's interlocutory ruling on the exception of lack of personal jurisdiction over nonresident Shamma under Louisiana's Long-Arm Statute, La. R.S. 13:3201. Thus, in this context, where the basis for venue in Ascension Parish is the exercise of jurisdiction over a nonresident defendant under La. R.S. 13:3201 and La. C.C.P. art. 73, we find irreparable harm has been shown since on appeal this court lacks any practical means of correcting an error of the trial court in overruling the exceptions. Therefore, the appeal is proper under La. C.C.P. art.2083.

      . Although not briefed, at oral arguments defendants suggested that the trial court erred in concluding that Frederic was domiciled in Ascension Parish. 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. Salvatierra v. Calderon, 2001-1888 (La.App. 1st Cir. 10/2/02), 836 So.2d 149. A person can have several residences, but only one domicile. Id. Domicile is an issue of fact to be determined on a case-by-case inquiry. Id. Based on Randall Frederic's testimony at the hearing, ample support exists for the trial court’s factual finding that plaintiff was domiciled in Ascension Parish at the time of the accident. Therefore, we find no manifest error in that determination. See Stobart v. State, 617 So.2d 880, 882-83 (La.1993).