author: | ¿DOWNING, J.

text:
    John R. NORRIS v. Martin W. GOULD, Jr. and Malise Prieto in Her Capacity as Clerk for the 22nd Judicial District, Parish of St. Tammany, State of Louisiana.
    No. 2003 CE 1876.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 5, 2003.
    Writ Denied Sept. 10, 2003.

      W. Raley Alford, III, New Orleans, for Plaintiff/Appellant, John R. Norris.
    Robert A. Barnett, New Orleans, for Defendant/Appellee, Martin W. Gould, Jr.
    Malise Prieto, Clerk of Court, Coving-ton, for Defendant.
    Before: CARTER, C.J., PARRO, PETTIGREW, DOWNING & McClendon, jj.
   | ¿DOWNING, J.

John R. Norris challenges the candidacy of Martin W. Gould, Jr. for St. Tammany Parish Council Member, District 5, because he did not reside in the district from which he seeks election for more than one year prior to qualifying to run for office. The trial court sapiently analyzed the jurisprudence and legislation, reached the fair and reasonable conclusion that Gould was qualified, and dismissed Norris’s suit. Norris appeals.

Article II, Section 2-01 of the St. Tammany Parish home rule charter (the charter) states that a council member “shall have been legally domiciled and shall have actually resided for at least one (1) year immediately preceding the time established by law for qualifying for office in the area which, at the time of qualification, is within the district from which elected.”

Article II, Section 2-02 of the charter provides for reapportionment of the council election districts if the federal census indicates a population shift. In 2001 the council re-apportioned the districts, and the United States Department of Justice pre-cleared the new districts in March 2003. The first election to be conducted under the new districting plan is set for October 4, 2003.

Gould lived within the boundaries of council district 5 for more than a year before the reapportionment. The redistricting placed his residence in district 7. In May 2003, after the Justice Department pre-clearance but less than one year before qualifying, Gould moved to an apartment located in the new district 5. Norris contends the trial court committed legal error in failing to disqualify Gould from running for office for district 5 council member because he did not reside within the boundaries of the present district for at least one year before qualifying.

|3In Nicholson v. Grisaffe, 438 So.2d 550 (La.1983), the Louisiana Supreme Court faced a similar situation. Grisaffe sought election to the Iberia Parish Council, a parish governing body established by a home rule charter. The council districts were reapportioned less than one year pri- or to the election, and the new boundaries created through redistricting excluded Gri-saffe’s residence from the district in which she sought to run. Consequently, she had not “actually resided” in the newly created district for one year prior to qualifying. The trial court and court of appeal both ruled that she was disqualified as a candidate, but the Louisiana Supreme Court reversed, applying the “election-following-reapportionment” exception of Article III, Section 4(B) of the Louisiana Constitution. The Court concluded that “a candidate for Iberia Parish Council, in the next regular election following legislative reapportionment of a district, may qualify in any new district created in whole or in part by the reapportionment of the old district, if the candidate had been domiciled in the old district for at least one year immediately preceding his qualification.” Nicholson, 438 So.2d at 552.

Article III, Section 4(B), of the Louisiana Constitution provides that “at the regular election for members of the legislature following legislative reapportionment, an elector may qualify as a candidate from any district created in whole or in part from a district existing prior to reapportionment if he was domiciled in that prior district for at least one year immediately preceding his qualification .... ” Louisiana Revised Statute 33:1225 provides, in pertinent part, that “[m]embers of the police juries shall possess the same qualifications at the time of their election as members of the house of representatives.” The Court in Nicholson noted that this provision dated back to the 1800s, when the legislative branch of government in every parish was operated under the police jury system. |4 It thus applied the exception to the residence requirements to parish council members, who take the place of police jurors in parishes with home rule charters.

Norris assigns as error the trial court’s finding that the election-following-reapportionment exception applies, on two grounds. First, he contends that because Gould moved from his home in old district 5 into his apartment in the new district 5 in May 2003, he had not been domiciled in the prior district “for at least one year immediately preceding his qualification” as provided for in Article III, Section 4(B). Norris argues that since Gould switched districts within the year, he was qualified for election as council member for neither his old district nor his new one.

We find this argument rather ironic considering Norris spent most of his time at trial attempting to show that Gould was still domiciled in his home in former district 5. Section 4(B) clearly contemplates the office seeker moving from the old district to the new, as his seat shall be vacated if he is not residing in the district he represents when he is sworn into office. We find that his move into the proper district from the former district three months before qualifying did not disqualify him from availing himself of the election-following-reapportionment exception where he was domiciled in the former district for more than a year preceding the move.

Candidacy is favored in order to afford the electorate a choice. McCarter v. Broom, 377 So.2d 383, 384 (La.App. 1 Cir.1979). Laws governing the conduct of elections should be liberally interpreted to promote rather than defeat candidacy. Russell v. Goldsby, 00-2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051. Any doubt as to the qualifications of a candidate should be resolved in favor of |Rpermitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679, 680 (La.1991).

In McCarter v. Broom, this court faced a factual situation similar to the one herein. The case involved parish council districts in St. Tammany Parish. The candidate moved his domicile after a federal court judgment ordered redistricting, which changed the district in which Broom lived. It was unclear at trial whether Broom accomplished the change before the close of qualifying. This court liberally interpreted the election qualifying statutes in light of the uncertainties resulting from the redistricting court order and the necessity of approval by the federal government. We found that “under the special circumstances resulting from Federal intervention in the State electoral process, a substantial injustice” would result if Broom were denied the opportunity to run in the district to which he had moved. McCarter, 377 So.2d at 384. Similarly, a substantial injustice would result to Gould if he were denied the opportunity to run in the new district 5.

Norris’s second ground for contesting the application of the election-following-reapportionment rule is that it violated fundamental principles of local government autonomy found in Article VI of the Louisiana Constitution. He argues Article III, Section 4(B) should not be applied because there is no gap in the St. Tammany Parish charter, as he contends Section 2-01 C’s residency and domicile requirements reflect “a deliberate policy determination by a home rule entity in an area in which the entity’s authority is exclusive.” He acknowledges that the Iberia Parish home rule charter in Nicholson contains the verbatim provision found in the St. Tammany Parish charter herein, and despite that provision the Louisiana Supreme Court found a gap existed. He argues, however, | fithat the day has come to revisit this issue. If the issue is to be revisited, we believe the Louisiana Supreme Court is the more appropriate forum.

Gould filed a motion asking this court to sanction Norris for filing what Gould contends was a frivolous lawsuit. Gould relies on Louisiana Code of Civil Procedure article 863 and Louisiana Revised Statute 18:1432 B. Both of these provisions refer to imposition of sanctions by the trial judge. Sanctions under article 863, relating to the signing of ill-founded pleadings, can be imposed only after a hearing in the trial court. Similarly, Revised Statute 18:1432 B requires a determination by the trial judge that an action objecting to candidacy was filed frivolously-

Only the trial court has the authority to impose sanctions for violation of the pleading certification requirements; the court of appeal’s authority is limited to awarding damages solely for frivolous appeal. La. C.C.P. art. 2164; Hampton v. Greenfield, 618 So.2d 859 (La.1993); Cu-role v. Avondale Indus., 01-1808, p. 5 (La.App. 4 Cir. 10/17/01), 798 So.2d 319, 322. In Hampton, the Louisiana Supreme Court stated that only a trial court is capable of holding the required article 863 hearing where evidence may be presented on the sanctions issue. The Court explained this limitation:

[0]n its face, the ability to impose sanctions under art. 863 is limited to the trial court. Moreover, we believe that the authority to impose art. 863 sanctions is limited to the trial court. The court of appeal’s authority to regulate conduct before it is governed by La. Code Civ. P. art. 2164 .... By limiting the court of appeal’s authority to awarding damages solely for frivolous appeals, art. 2164 places a logical limit on the application of art. 863 to matters before the trial court.

Hampton, 618 So.2d at 862. We believe this same “logical limit” applies to Revised Statute 18:1432 B. Because Gould’s motion for sanctions under article 863 and Revised Statute 18:1432 B was filed for the first time with the appellate |7court, we must deny the motion.

For the foregoing reasons, we deny Gould’s motion for sanctions. We find the trial court was legally correct in dismissing Norris’s suit. We affirm the judgment of the trial court and cast Norris for all costs of this appeal.

MOTION DENIED; AFFIRMED.

      . Because of the result we reach, we need not address the exception raising the objections of no cause of action and no right of action that Gould re-urges in his appellate brief.


source: Caselaw Access Project

author: I «CARTER, C.J. |-i FITZSIMMONS, J.,

license: Public Domain

text:
    Felton DOMINIQUE v. Henry Allen FAVORITE.
    No. 2003 CE 1894.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 2003.
    Writ Denied Sept. 11, 2003.

      Allen J. Myles, Plaquemine, for Plaintiff/Appellee, Felton Dominique.
    Yolanda J. Batiste, Plaquemine, for Defendant/Appellant, Henry Allen Favorite.
    Before: CARTER, C.J., PARRO, FITZSIMMONS, GUIDRY & McDonald, jj.
   I «CARTER, C.J.

Felton Dominique challenges the candidacy of Henry Allen Favorite for Iberville Parish Council Member, District 3. The trial court made factual findings that Favorite resided and was domiciled in District 5 and that Favorite was not a qualified voter in District 3. The court consequently disqualified Favorite as a candidate. Favorite appeals, contending the trial court legally erred in disqualifying him as a candidate and was clearly wrong in making a factual finding that he was not a qualified voter in District 3 at the time he filed his notice of candidacy.

Article II, Section 2-01B of the Iberville Parish home rule charter (the charter) states that a council member “shall be a qualified voter of the district [from] which elected at the time of qualification.” Section 2-01C of the charter provides that a council member “shall have been legally domiciled and shall have actually resided for at least one (1) year immediately preceding the time established by law for qualifying for office in an area which, at the time of qualification, is within the district from which elected.” The failure of a candidate to meet any one of three conditions, i.e., domicile, residency, and qualification to vote, in the district for which he files a notice of candidacy, disqualifies him.

Residence and domicile are not synonymous. A person can have several residences but only one domicile. Messer v. London, 438 So.2d 546, 547 (La.1983); McClendon v. Bel, 00-2011, p. 6 (La.App. 1 Cir. 9/7/00), 797 So.2d 700, 704; Autin v. Terrebonne, 612 So.2d 107, 108 (La.App. 1 Cir.), writ denied, 604 So.2d 954 (La.1992). Louisiana Civil Code article 38 states that the “domicile of each citizen is in the parish wherein he has his principal establishment.^Principal establishment is defined in article 38 as “that in which he makes his habitual residence.” Article 41 of the Civil Code explains the method by which domicile is changed: “A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.”

The question of domicile is one of intention as well as fact. Where it appears a candidate has changed his domicile, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by positive and satisfactory proof of (1) establishment of a domicile as a matter of fact (2) with the intention of remaining in the new district and of abandoning the former domicile. Pattern v. Fields, 95-1936, p. 8 (La.App. 1 Cir. 9/26/95), 669 So.2d 1233, 1238, writ denied, 95-2382 (La.9/29/95), 661 So.2d 1341. 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. Id., 95-1936 at p. 7, 669 So.2d at 1238.

Domicile is an issue of fact to be determined on a case-by-case inquiry. Succession of Barnes, 490 So.2d 630, 631 (La.App. 2 Cir.1986). As in any case, the factual findings of the trial court will not be disturbed on appeal unless clearly wrong. Autin v. Terrebonne, 612 So.2d at 108.

Favorite testified that his mother lives in Bayou Goula, in District 3, and that after he married he bought a lot and mobile home on Breaux Street in that area. He also established an automotive repair shop in Bayou Goula. In 1999 Favorite and his wife bought a house on Eli Craig Street in Plaquemine. According to Melissa Bourgoyne, Iberville Parish Registrar of Voters, Eli Craig Street is the dividing 14line between Districts 3 and 5, with one side of the street in District 3 and the other in District 5. Bourgoyne testified that Favorite’s home is on the District 5 side.

Favorite testified that he and his family moved to the house on Eli Craig Street in Plaquemine in 1999, and they have been living there ever since. His sister moved into the trailer in Bayou Goula. He still works at his repair shop in Bayou Goula and spends the night at his mother’s house if he works late. He testified, however, that for the year immediately preceding the qualifying date, his principal place of residence was not in District 3, but was in Plaquemine in District 5 with his family. Favorite testified he used the Eli Craig Street address in Plaquemine on his 2002 tax return and his driver’s license.

In the appellate brief, Favorite’s counsel relies on Favorite’s testimony at the beginning of the hearing that “95 percent of [his] time” was spent in District 3. Favorite also testified initially that he spends the weekends in Plaquemine with his family, but during the week he resides in Bayou Gorda. But when the trial court threatened to issue an instanter subpoena for Mrs. Favorite and question her as to the amount of time Favorite spent with his family, he changed his testimony and admitted that since he “moved to Plaque-mine,” he spends about five nights a week in Plaquemine with his family.

Favorite’s counsel also relies on the facts that Favorite never changed his voter registration from District 3 to District 5 after he moved to Plaquemine (although he did change his homestead exemption in 2002), and that Favorite intends to return to District 3 at some point and build a home on the Breaux Street lot where his sister is now residing. He stated he had not built a house in Bayou Goula because of his personal financial situation, he did not know when he would, |Khe had no financing arranged, he had no house plans, and he had not selected a contractor.

Favorite’s own testimony establishes he moved his residence to Plaquemine, District 5, from Bayou Goula, District 3, in 1999. Dominique’s counsel questioned Favorite about his knowledge of the qualifications for council member:

Q. Before you decided to run for office, did you look at the Home Rule Charter? A. No, I didn’t.
Q. ... Did you know that you had to reside in an area and be domiciled in the area you are running in one year before the qualifying date ... ?
A. No, I didn’t.
Q. And if you had known that, you probably wouldn’t have done it, correct?
A. I couldn’t have done it.

Perhaps most telling is this colloquy between Favorite and the trial court:

Q. Let me ask you this question and I want you to be honest with me. I don’t want to go through this again like I did with the nights of sleeping. Before you decided that you wanted to run for political office in Iberville Parish, before you decided you wanted to run in District 3, before you met with the lawyer and found out where things went bad here, before all of these things, if I asked you this question, where do you live, what would [you] have told me? Before all of this came up, what would you have told me if I said, “Mr. Favorite, where do you live” — what would you have told me?

A. Eli Craig.

We acknowledge that candidacy is favored in order to afford the electorate a choice. McCarter v. Broom, 377 So.2d 383, 384 (La.App. 1 Cir.1979). Laws governing the conduct of elections should be liberally interpreted to promote rather than defeat candidacy. Russell v. Goldsby, 00-2595, p. 4 (La.9/22/00), 780 So.2d 1048, 1051. Any doubt as to the qualifications of a candidate should be resolved in | fifavor of permitting the candidate to run for public office. Dixon v. Hughes, 587 So.2d 679, 680 (La.1991).

In this case, however, no matter how liberal of an interpretation we give the facts, we cannot say the trial court was clearly wrong in finding that Favorite’s residence and domicile changed from Bayou Goula in District 3 to Plaquemine in District 5 when he bought a home on Eli Craig Street in Plaquemine and moved there with his family in 1999. Because Favorite neither was domiciled nor resided in District 3 for one year immediately preceding August 20, 2003, the trial court was legally correct in disqualifying him as a candidate. Because of our conclusion on the issues of domicile and residence, we need not address Favorite’s second assignment of error, that the trial court erred in declaring that he was not a qualified voter in District 3 at the time he qualified for office.

For the foregoing reasons, the judgment of the trial court is affirmed. Favorite is cast with all costs of this appeal.

AFFIRMED.

FITZSIMMONS, J., concurs with reasons. •

GUIDRY, J., concurs.

|-i FITZSIMMONS, J.,

concurring with reasons.

I respectfully concur with the majority for the following reasons. The issues of domicile and residence are born from such similar parents that many see it as a sibling struggle. I agree that the key to domicile is “intent.” This is the heart of whether one resides or is domiciled in a particular location. I would respectfully disagree that in order for one to be domiciled, that one needs to “reside” at that location the majority of the time. In my view, such a requirement negates the concept of “intent.” Under the facts of this case, it is clear that there was never a true intent to be domiciled in the required district: his driver’s license address was not in that district; he had not resided in a physical structure in the required district; and, he had not lived in that district for the requisite time frame.

      . The parties did not introduce a copy of the charter into evidence, but they do not dispute this language from the charter, as set forth in the petition.


author: I LAUNDERS, J.

text:
    STATE of Louisiana v. James “T. K.” ALEXANDER.
    No. 03-0167.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 2003.

      J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, James “T.K.” Alexander.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   I LAUNDERS, J.

The Defendant, James “T.K.” Alexander, was charged by bill of information on September 25, 2001, with public bribery, a violation of La.R.S. 14:118. The Defendant entered a plea of not guilty on October 3, 2001. Trial by jury commenced on May 14, 2002. On May 17, 2002, the jury returned a verdict of guilty of public bribery. On October 10, 2002, the Defendant was sentenced to three years at hard labor, all but one year suspended, with credit for time served, and three years supervised probation. A Motion to Reconsider Sentence was filed on October 15, 2002, and denied on October 16, 2002. A Motion for Appeal was filed on October 22, 2002. FACTS:

Louis Hutchinson conducted a presentation at a Jeanerette City Council meeting in April of 1999 regarding his employer, PSG, taking over the operations of the city water plant. Whitney Vernon testified that after the council meeting, he was approached by Michael Cormier, the City’s financial advisor. Cormier advised Vernon that Hutchinson would like to speak to Vernon and that Hutchinson would like to offer Vernon a job in exchange for a favorable vote on the water plant contract. The Defendant, the Mayor of Jeanerette, advised Vernon that Hutchinson wanted to meet with Vernon at Vernon’s place of employment to discuss the contract. Vernon then contacted the Iberia Parish Sheriffs Department on April 26, 1999. Vernon met with Hutchinson and another employee of PSG, Monty Boynton, at Vernon’s place of employment on April 29, 1999. The meeting was arranged by the Defendant. During the meeting, Hutchinson offered Vernon a job at the water plant in exchange for a favorable vote on the contract. Vernon called the Defendant after the meeting with Hutchinson, advising the Defendant that he was concerned because | «Hutchinson had brought Boynton to the meeting. The Defendant told Vernon if Hutchinson said he would get a job it was true. The Defendant then arranged for Hutchinson to contact Vernon. Hutchinson called Vernon on May 4, 1999, and from that conversation Vernon got the impression he would get a job at the water plant if he voted in favor of the PSG contract. On May 6, 1999, Vernon had a conversation with the Defendant wherein the Defendant indicated Hutchinson would go through with his deal with Vernon and that Hutchinson was going to get jobs for other people, including the Defendant. The Defendant then scheduled a meeting with Vernon for that evening, but the Defendant canceled the meeting. The Defendant met Vernon the following day at Vernon’s place of employment, at which time the Defendant informed Vernon he was taking the contract proposal off the agenda.

Kevin Duffy, vice president for compliance and assistant general counsel for U.S. Filter, formerly Aqua Alliance, Inc., the parent company of PSG, conducted an investigation into an alleged bribery in Jean-erette. The investigation was prompted by Monte Boynton reporting Hutchinson’s meeting with Vernon to the company’s compliance hotline. Based on the investigation, Hutchinson was suspended. On May 7, 1999, Bill Nelson, general counsel for PSG, called and faxed the Defendant informing the Defendant there was an ongoing investigation regarding a PSG employee and it was suggested that the vote on the PSG contract be postponed. Once the investigation was completed, Hutchinson was fired and the PSG contract was withdrawn.

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 find two errors | «patent, both concerning the Defendant’s sentence.

As a condition of probation, the Defendant was ordered to pay a monthly supervision fee and to make restitution to the city of Jeanerette for the expenses incurred as a result of the crime, in an amount to be determined by the Defendant and his probation officer. The judge stated he would hold a hearing and determine the amount of restitution only if the Defendant and his probation officer did not agree on the amount to be paid.

The first error patent concerns the failure of the trial judge to establish the amount of restitution to be paid by the Defendant. This resulted in an illegal sentence. In State v. Dauzat, 590 So.2d 768, 775 (La.App. S Cir.1991), writ denied, 598 So.2d 355 (La.1992), this court stated:

When a sentencing judge orders a defendant to make restitution to the victim, both La.C.Cr.P. arts. 895(A)(7) and 895.1 require the court, and not the probation officer, to determine the amount of restitution. Because the court failed to determine the amount of restitution owed as a special condition of probation, the defendant’s sentence is illegal. State v. Hardy, 432 So.2d 865 (La.1983). State v. Rogers, 517 So.2d 428 (La.App. 1st Cir.1987).
This error cannot be corrected by an appellate court. Therefore, defendant’s sentence must be reversed with the case to be remanded for resentencing. Upon resentencing, the judge must determine the amount of money taken by the defendant which was not covered by insurance. Restitution for this loss may be ordered pursuant to either La.C.Cr.P. arts. 895 or 895.1.

Therefore, the Defendant’s sentence is vacated and the case remanded for resen-tencing.

The second error patent concerns the sentencing judge’s failure to set the amount of the monthly probation supervision fee. See State v. Pounds, 581 So.2d 319 (La.App. 1 Cir.1991). In State v. Hardy, 432 So.2d 865 (La.1983), the supreme court remanded the case with instructions to modify the condition of probation to specify Lthe amount of the supervision fee within the range allowed under La. Code Crim.P. art. 895.1.

Since the sentence is vacated for the failure to set the amount of restitution, we direct the lower court to set the amount of the probation supervision fee at the resen-tencing proceeding if the Defendant is once again placed on probation.

ASSIGNMENT OF ERROR NO. 1:

The Defendant contends the trial court erred in admitting the taped statement of Louis Hutchinson, III, in violation of the Defendant’s constitutional right of confrontation.

At the Defendant’s trial, Louis Hutchinson asserted his Fifth Amendment privilege against self-incrimination and exercised his right not to testify. The State then moved to introduce a taped statement by Hutchinson made on September 13, 2001. Defense counsel objected to the introduction of the taped statement, asserting: the Defendant was being denied the right to confront and cross-examine Hutchinson, there were breaks in the tape when it was played, the tape could not be admitted unless its author was called as a witness, the tape was not provided prior to trial, the statement of a witness could not be introduced, and it was not a statement against Hutchinson’s interest. However, the judge ruled Mr. Hutchinson, having asserted his Fifth Amendment right, was unavailable as a witness pursuant to La. Code Evid. art. 804; therefore, his statement was admissible. The trial court made the following remarks when ruling on the admissibility of the taped statement:

In the statement, Mr. Hutchinson incriminates himself in additional crimes. He incriminates himself in the crime of bribing Mr. Cormier with money and possibly a job. He incriminates himself in a conspiracy with Mr. Cormier and Mr. Alexander in-to bribe Mr. Vernon. So that, in this situation, particularly with reference to his statements regarding Cormier, he is subjecting himself to additional criminal charges. In 1 ¡^addition to that, of course, he is incriminating himself for the possibility of civil action against him as well as in expanding the course and scope of the conspiracy and the eourse-and additional incrimination concerning Mr. Cormier. So that lends some reliability to his statement.
And of course, as to Mr. Cormier, it involves two different bribery attempts, that he gave him money at two different times. And what makes him more reliable also is the fact that he gave a personal check and that there would be written evidence of the commission of that crime which he presented-which he told the police about, so that that would give the police physical evidence as well as his incriminating statement to use against him to prosecute him for that offense.
Now, what is the reliability of his statements which tend to involve Mr. Alexander? Well, we have already heard in this case on Mr. Alexander’s recorded statement that Mr. Alexander ... stated that he was aware and was sure that Mr. Hutchinson was going to give Mr. Vernon the job in exchange for the vote.... So that further verifies the credibility and the reliability of the statement of Mr. Hutchinson.
In addition to that, Mr. Boynton’s testimony at the trial also lends credence to the statements of Mr. Hutchinson.
And then, of course, further giving credibility to the reliability of the statement has been the testimony of Mr. Vernon that Mr. Alexander set up the meetings with Mr. Hutchinson.
So the statement has inherent reliability.
And the statement of course is a self-inculpatory statement of Mr. Hutchinson. And this court finds, after a fact-intensive inquiry, that the statement is truly a statement of inculpation of Mr. Hutchinson and also of the others involved in the alleged bribery.

The Defendant contends the statements of Louis Hutchinson were not subjected to cross-examination, he made contrary assertions, the interview was given after Hutchinson’s conviction but prior to sentencing, the jury was not permitted to observe Hutchinson’s demeanor at the time he made the statement, and the statement was not credible. Defendant also contends the trial court committed reversible error in fallowing the jury to hear Hutchinson’s statement because the application of La.Code Evid. art. 804’s “unavailable” provision is inapplicable where the constitutional rights to confrontation and cross-examination are implicated. The Defendant further contends the broad exception applied by the trial court is unconstitutional inasmuch as it is not sufficient that a witness be unavailable since there are Due Process concerns that must be addressed.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This right provides “‘two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination.’ ”

State v. Welch, 99-1283, p. 4 (La.4/11/00); 760 So.2d 317, 320 (citation omitted).

However, as the fourth circuit noted in State v. Brown, 97-2260, p. 11 (La.App. 4 Cir. 10/6/99); 746 So.2d 643, 649-50:

The U.S. Supreme Court has repeatedly recognized that although the literal language of the Confrontation Clause provides for face-to-face accusation at trial, this provision does not represent an absolute bar to the use of hearsay testimony. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980). The Court has specified instead that if an out-of-court declarant is unavailable to testify,
[H]is statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Id. at 66, 100 S.Ct. at 2539 (footnote omitted).

See also State v. Marston, 2000-0589 (La.3/16/01); 780 So.2d 1058.

Thus, before the court can determine if the admission of Louis Hutchinson’s statement violated the Defendant’s right to confrontation, we must determine whether | yHutchinson’s statement was admissible under an exception to the hearsay rule.

“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C). Hearsay is not admissible except as provided for by law. La.Code Evid. art. 802. If a declarant is unavailable as a witness, a statement made by the declarant that is against the declarant’s interest is not excluded by the hearsay rule. La. Code Evid. art. 804(B)(3). Accordingly, there is a two prong test that must be satisfied before a declarant’s statement is admissible as a statement against interest under La.Code Evid. art. 804(B)(3):

1) the declarant must be unavailable as a witness; and
2) the statement must be a statement against the declarant’s interest.

AVAILABILITY

A declarant is deemed unavailable under La.Code Evid. art. 804(A)(1) by a finding of the trial court that the de-clarant has invoked a privilege and is consequently exempt from testifying. Hutchinson asserted his Fifth Amendment privilege against self-incrimination and refused to testify at trial. Accordingly, he was unavailable. State v. Dotch, 298 So.2d 742, 745 (La.1974); cert. denied, 420 U.S. 976, 95 S.Ct. 1401, 43 L.Ed.2d 657 (1975); See also State v. Bright, 98-0398 (La.4/11/00); 776 So.2d 1134.

STATEMENT AGAINST INTEREST

The Defendant asserts that the taped statement does not meet the requirements of La.Code Evid. art. 804(B)(3). Defendant contends the taped statement is not a “statement,” as Article 804(B)(3) does not refer to an extended declaration but instead refers to a single remark.

A statement is “[a]n oral or written assertion.” La.Code Evid. art. 801(A)(1). Is However, in Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 2434-35, 129 L.Ed.2d 476 (1994), the supreme court concluded that the term “statement” in Federal Rule of Evidence 801 meant a “single declaration or remark” and would “cover only those declarations or remarks within the confession that are individually self-inculpatory.”

The taped statement of Louis Hutchinson, III was played to the jury during the testimony of Detective David Landry. The statement was not transcribed as part of the trial transcript. The notation at the time the tape was played at trial reads as follows: “(At this time, State’s exhibit Number 22, the tape-recorded interview of Louis Hutchinson dated 9-13-01, was played to the jury.)” After the tape was played, Detective Landry testified he did not know the length of the taped statement. Defendant does not inform the court of the length of the tape, but only asserts it is not a statement because La. Code Evid. 804(B)(3) does not refer to an extended declaration.

Upon review of the taped statement, we note that it consists of an interview of Louis Hutchinson, III that is approximately forty minutes in length. Under La. Code Evid. art. 801, only those statements on the tape that are self-inculpatory can be considered statements. Defendant has pointed to no portion of the tape or to any particular remarks that are not self-incul-patory, and trial counsel did not seek to have any portion of the statement redacted.

Defendant also calls into question whether the statement was actually against Louis Hutchinson’s interest, because he had already been convicted. Defendant further questions Hutchinson’s motivation for making the statement.

A statement against interest is:

[a] statement which was at the time of its making so far contrary to the declar-ant’s pecuniary or proprietary interest, or so far tended to subject |9him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

La.Code Evid. art. 804(B)(3).

Upon review, a large portion of the taped statement is self-inculpatory and the trial court discussed numerous portions of the statement that were self-inculpatory in its ruling on the admissibility of the statement.

Defense counsel cites Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), indicating Hutchinson’s statement is unreliable and calls into question Hutchinson’s motive for making the statement. In his argument, Defendant relies heavily on the fact that Hutchinson’s statement was made after his conviction, but before he was sentenced.

[A] codefendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.

Id. at 545,106 S.Ct. at 2064.

At the trial on May 13, 2002, the State asserted that it had made no oral or written agreement with Louis Hutchinson and had promised him nothing in exchange for his testimony at the Defendant’s trial. The judge noted he had a discussion with Hutchinson’s attorney, at which time the attorney requested that the judge take any cooperation by Hutchinson into consideration at sentencing, specifically, his testifying at the trial of the Defendant. Assistant District Attorney Vines told the court he was not present during the meeting and no written or oral agreement between the State and the Defendant existed.

There is nothing else in the record regarding Hutchinson’s motivation for making the statement and Defendant has failed to point to any improper motive for |inmaking the statement or to prove that Hutchinson was attempting to curry favor by making the statement. The trial court determined that Hutchinson’s statement was “inherently reliable” based on the fact that Hutchinson implicated himself in various other crimes and because testimony at trial prior to the admission of Hutchinson’s statement supported the remarks made by Hutchinson in his taped statement. Upon reviewing the taped statement, Hutchinson does implicate himself in various other crimes. Accordingly, we find Defendant has failed to show Hutchinson’s motivation for making the statement was improper or that the statement is unreliable.

In light of the above discussion, we cannot say the trial court erred in determining the statement was reliable and a statement against the declarant’s interest. We find the taped statement meets the threshold requirements for admissibility under La.Code Evid. art. 804(B)(3).

For the reasons stated above, we find the Defendant’s right to confrontation was not violated by the admission of the taped statement of Louis Hutchinson, inasmuch as the trial court determined Hutchinson was unavailable, the statement was a statement against interest, and the statement was reliable. Defendant has not presented any specific argument for the unreliability of the taped statement, other than the fact the statement was made after Hutchinson’s conviction. The Defendant contends that Hutchinson made contrary assertions, but points out none.

PREJUDICE VERSUS PROBATIVE VALUE

The Defendant further contends the prejudicial effect of the tape outweighed its probative value. Although we do not find that the tape violates the Defendant’s right to confront witnesses, if the prejudicial effect of the tape outweighs its probative value, the tape would be inadmissible under La.Code Evid. art. 403.

lnThe Defendant specifically contends the jury was confused as to the differences between the charges and requested the judge explain the possible verdicts on two different occasions. Defendant concludes the jury’s ability to consider the totality of the evidence fairly was affected by Hutchinson’s statement and the reliability of the statement was called into question at that time.

The jury sent two notes to the judge during deliberations. The first note read as follows: “We need a description of the three responsive verdicts.” The judge then read the portion of the instructions to the jury regarding the responsive verdicts of public bribery, attempted public bribery, and not guilty. The second note read as follows: “Can we see the definitions in writing so we can review the differences between the charges?” The attorneys did not agree to allow a copy of the instructions to be given to the jury. Accordingly, the judge informed the jury that the law did not permit him to provide the jury a written copy of the instructions. Juror Hoover responded as follows: “Well, I just don’t think we’re understanding the differences. I mean, we understand not guilty, but the differences between the first two.” The judge then read the instructions regarding public bribery and attempted public bribery again. The jury returned a verdict of guilty of public bribery.

There is no indication in the record as to the cause of the jury’s confusion over the differences between public bribery and attempted public bribery. The Defendant has pointed out no reason why the questions regarding the jury instructions brings the reliability of the statement into question, and presents no specific portion of the statement as being specifically prejudicial to him.

Louis Hutchinson, Ill’s statement was properly admitted and the admission did not violate the Defendant’s right to confrontation. Accordingly, this assignment lacks 112merit.

ASSIGNMENT OF ERROR NO. 2:

The Defendant contends the trial court erred in sentencing the Defendant to an excessive sentence which was not sufficiently particularized to the offender or the offense. More specifically, the Defendant contends the mitigating factors in this case are numerous and a shorter probated sentence is appropriate in this case. As we have found the sentence must be set aside due to errors patent, this assignment of error is now rendered moot.

DECREE:

For the reasons stated herein, the Defendant’s conviction is affirmed, however, his sentence is vacated and the case remanded for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED; AND CASE REMANDED FOR RESENTENCING.


author: | LAUNDERS, J.

text:
    IBERIA PARISH SCHOOL BOARD v. Patsy BROUSSARD.
    Nos. 03-0151, 02-1299.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 2003.

      Michael W. Campbell, Michael St. Marc Caffery, Caffery, Oubre, Campbell & Garrison, L.L.P., Lafayette, LA, for Plaintiff/Respondent, Iberia Parish School Board.
    Randall Scott lies, Attorney at Law, Lafayette, LA, for DefendanVApplieant, Patsy Broussard.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   | LAUNDERS, J.

Applicant, Patsy Broussard, seeks review of a decision of the Office of Workers’ Compensation ordering her to submit to medical examination by Dr. Roger Smith, a neurosurgeon, in accordance with La. R.S. 23:1124.1, regarding the issue of disability.

FACTS

The applicant, Patsy Broussard, suffered a neck injury on April 1, 1998, while in the course and scope of her employment with the Iberia Parish School Board. Ms. Broussard originally chose Dr. R.C. Llewellyn, a neurosurgeon in New Orleans, as her choice of physician after the accident. Under the provisions of La.R.S. 23:1121(A), Iberia Parish School Board had Ms. Broussard examined by Dr. John Clifford, a neurosurgeon in Baton Rouge. Dr. Clifford examined Ms. Broussard on several occasions and eventually recommended surgical intervention.

This case originally came to litigation in 1999, after Dr. Clifford recommended cervical spine surgery for Ms. Broussard. Dr. Clifford requested that he be allowed to consult with his partner. This request was refused by Iberia Parish School Board’s insurance company. The employer apparently refused to authorize the second opinion by Dr. Clifford’s partner due to a desire to seek a second opinion from a physician outside the practice group of Dr. Clifford. Instead, the employer requested a second opinion by. Dr. Jack Hurst, a neurosurgeon in Lafayette. After Ms. Broussard refused to submit to examination by Dr. Hurst, Iberia Parish School Board filed a motion seeking approval of a second opinion with the Office of Workers’ Compensation. The trial court granted the employer’s request and Ms. Broussard sought a supervisory writ from this court to review the trial court’s decision.

At the time of this first litigation, the employer took the position that Ms. 12Broussard. had made Dr. Clifford her de facto choice of physician, and therefore, it should be allowed a second neurosurgeon of its choosing. Ms. Broussard disputed the contentions of the employer, specifically, that the employer was entitled to a new physician of its choosing under the provisions of La.R.S. 23:1121(A) when she became compliant with the directives of its original choice of physician.

The workers’ compensation judge held that Ms. Broussard’s selection of Dr. Clifford as her de facto physician allowed the employer to obtain a second opinion by the neurosurgeon of- its choice. This court granted the writ and held that School Board’s choice of physician under La.R.S. 23:1121(A) was Dr. Clifford. The mere fact that Ms. Broussard chose to accept the treatment and recommendations of the employer’s chosen physician did not allow the employer to avoid the clear language of the statute prohibiting the employer from forcing an employee to be examined by more than one physician in any one field or specialty.

This latest dispute arose in April of 2002, when the employer filed a disputed claim for compensation requesting that Ms. Broussard undergo medical evaluation on the issue of her extent of disability. Dr. Clifford, the employer’s original choice of physician has stated that, in his opinion, Ms. Broussard is permanently disabled. Ms. Broussard filed a reconventional demand seeking a declaration that she is totally and permanently disabled and an Exception of Res Judicata, or in the alternative, that the law of the case doctrine applies to this matter, based on this courts prior ruling on the 1999 supervisory writ. The trial court denied Ms. Broussard’s exception and ordered that she be evaluated by Dr. Roger Smith, a neurosurgeon practicing in New Orleans.

Once again, Ms. Broussard requests a supervisory writ from this court to | «review the decision of the workers’ compensation judge. She presents the following issues for review:

1) Did the trial court err in denying the Peremptory Exception of Res Judica-ta brought by Patsy Broussard, or in the alternative, the estoppel principal of “law of the case”?
2) Did the trial court err, on its own motion pursuant to La.R.S. 23:1124.1, in appointing a neurosurgeon to evaluate Patsy Broussard where no medical dispute existed, and the plaintiff (de facto) and defendant (de jure) jointly chose neurosurgeon, Dr. John Clifford?

LAW AND ARGUMENTS

RES JUDICATA AND LAW OF THE CASE:

In City of Jennings v. Clay, 98-225, p. 4 (La.App. 3 Cir. 10/14/98), 719 So.2d 1164, 1166, we provide a clear articulation of the application of the law of the case doctrine in reviewing matters previously decided by this court.

Generally, review of an issue previously addressed by this court would be precluded by the law of the case doctrine. Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95); 649 So.2d 1158. The doctrine applies to all decisions of an appellate court and not merely those arising from the full appeal process. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365. However, the doctrine is not an absolute bar to reconsideration; rather it is discretionary. See Ducote v. City of Alexandria, 97-947 (La.App. 3 Cir. 2/4/98); 706 So.2d 673. Courts should apply the doctrine only when there is no obvious injustice or manifest error. Id; Martin v. Provencher, 97-1648 (La.App. 3 Cir. 5/6/98); 718 So.2d 975.

The Iberia Parish School Board states that “[i]t should be noted that the second opinion sought 1999 by Employer was solely on the question of whether surgery was needed and, if so, what type of surgery was needed.” Therefore, it argue that the theories of res judicata and law of the case do not apply in this instance, as its request for second opinion is related to a different matter than that raised in the original trial in this case. We find this argument is without merit.

l4La.R.S. 23:1121(A) provides for the examination of an employee by a medical doctor of the employer’s choosing as follows:

An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter. The employer or his workers’ compensation carrier shall not require the employee to be examined by more than one duly qualified medical practitioner in any one field or specialty unless prior consent has been obtained from the employee.

(Emphasis added).

The issue of whether the employer is allowed to seek a “second opinion” from another neurologist merely because it disagrees with the recommendations or diagnoses made by its original choice of physician is the specific issue that was litigated three years ago. The matter that the employer was seeking a second opinion on, namely a recommendation of surgery, was immaterial to our decision. The language of the statute is clear, and it shall be applied as written. An employer is entitle to request examination of the employee by only one physician within any given field or specialty.

This court has previously held that a claimant is not entitled to treatment by a second orthopedic surgeon of his choice merely because the first orthopedist has released him to go back to work. Wiley v. Kenneth Parker Logging, 97-1247 (La.App. 3 Cir. 3/6/98), 711 So.2d 297. This statement is equally applicable to the em ployer. Following the same rational, the employer cannot seek a “second opinion” by a second neurosurgeon of its choice simply because it does not like the determination of the first neurosurgeon it chose. Regardless of the fact that Ms. Broussard accepted the Iberia Parish School Board’s choice of physician and, in fact, |Kadopted their chosen physician as her own, Dr. Clifford is still the employer’s chosen physician as allowed by 23:1121(A) cited above. The mere fact that they do not now agree with his medical determination concerning Ms. Broussard’s disability status does not entitle them to chose a new physician within the same specialty as a means of “shopping around” for a diagnosis they find more appealing. This decision applies for the same reasons specified in the earlier writ granted by this court. In that writ we stated: “Defendant-respondent is bound by their initial choice of physician as per La.R.S. 23:1121. They may not now seek to alter their designation merely because plaintiff-applicant chooses to follow the recommendations of their choice of physician.”

Because this matter involves the same issue on which there was a final decision previously rendered by this court, we hold that the prior decision is the law of the case and our prior holding on this matter controls. We therefore need not address the applicability of res judicata.

COURT APPOINTMENT OF NEUROSURGEON:

La.R.S. 23:1123 provides that:

If any dispute arises as to the condition of the employee, the director, upon application of any party, shall order an examination of the employee to be made by a medical practitioner selected and appointed by the director. The medical examiner shall report his conclusions from the examination to the director and to the parties and such report shall be prima facie evidence of the facts therein stated in any subsequent proceedings under this Chapter.

Additionally, La.R.S. 23:1124.1 provides in pertinent part:

However, the workers’ compensation judge, on his own motion, may order that any claimant appearing before it be examined by other physicians.

In McCrary v. New Orleans Health Corp., 01-1682, p. 5 (La.App. 4 Cir. I 9/26/01), 798 So.2d 1085, 1089, the fourth circuit noted: “However La. R.S. 23:1123 provides that only in the event of a dispute as to the employee’s condition can either party make the application.” The trial court in a workers’ compensation case has the authority to engage an expert witness to advise the court, however, where there is no dispute as to the medical diagnosis or opinion, as here, no such advisory medical opinion is necessary. Additionally, although Iberia Parish School Board argues that the judgment of the hearing officer merely represents a court ordered examination by an impartial medical examiner, this representation is not entirely accurate. The employer initiated this request for a second medical examination, and Dr. Smith was the physician the employer sought permission for a second opinion from, therefore the court merely granted the request made by the employer, for an additional examination by a second physician of their choice.

In the trial court’s detailed reasons for judgment it is clear that the workers’ compensation judge is not ordering the examination by Dr. Hardy for the court’s benefit in reaching its decision, but rather merely for the employer’s benefit in trying to find a different medical conclusion than the one provided by it’s chosen neurosurgeon. In its reasons for judgment the hearing officer stated:

This Court finds this request for the second opinion evaluation is reasonable because the evaluation is on a different issue than that raised over (3) three years ago because the initial request for a second opinion dealt with the issue of whether or not surgery was necessary and the scope of the surgery, if necessary.
Since, no trial has occurred, plaintiff/employer should be able to challenge the question of disability with the testimony of the treating physician, as well as that of a second opinion doctor, based upon his evaluation of the plaintiff.

The workers’ compensation judge provided no support for his contention that j7the employer should be allowed an evaluation by a second neurosurgeon of the employer’s choosing. We were unable to find any support for this contention by the workers’ compensation judge, and since it is directly contradictory to the clear language of La.R.S. 23:1121(A), we find the workers’ compensation judge erred in ordering the employee to undergo such evaluation.

DECREE

For the reasons stated above, the writ is granted and the judgment of the workers’ compensation court ordering Ms. Brous-sard to submit to medical examination by Dr. Roger Smith is reversed. All costs of this writ are assigned to the plaintiff/respondent, the Iberia Parish School Board.

WRIT GRANTED.


author: |, SAUNDERS, Judge. ^THIBODEAUX, J.,

text:
    Stanley Richard GORDON v. Glen HURLSTON, M.D.
    No. 03-0112.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 2003.

      John E. Bergstedt, The Bergstedt Law Firm, Lake Charles, LA, for Defen-dani/Appellee, Glen Hurlston, M.D.
    Scott Westerchil, Leesville, LA, for Plaintiff/Appellant, Stanley Richard Gordon.
    Court composed of ULYSSES GENE THIBODEAUX, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   |, SAUNDERS, Judge.

In this employment status case, Plaintiff, Stanley Richard Gordon, a certified registered nurse anesthetist (CRNA), appeals the trial court’s judgment in favor of defendant and plaintiff-in-reconvention/ap-pellee, Glen Hurlston, M.D., A Professional Medical Corporation. The trial court held that Mr. Gordon was an independent contractor rather than an employee of Dr. Hurlston. Mr. Gordon further appeals the trial court’s judgment in favor of Dr. Hurl-ston on his reconventional demand for reimbursement of amounts billed for services provided, which are now uncollectible or not reimbursable due to Mr. Gordon’s failure to maintain his CRNA license. For the following reasons, we affirm the judgment of the trial court with respect to its determination that Mr. Gordon was an independent contractor. We affirm the trial court’s judgment on Hurlston’s reconven-tional demand and its award of $53,354.55. We also affirm the trial court’s denial of Mr. Gordon’s request for past due wages. Finally, we reverse the trial court’s award of $2,500.00 in attorney’s fees to Dr. Hurl-ston.

FACTS

Mr. Gordon and Dr. Hurlston entered into a contract on June 30, 1999. Although the agreement states that Mr. Gordon is to be an independent contractor, the parties’ dispute centers around whether Mr. Gordon was an independent contractor or an employee of Dr. Hurlston. The agreement provided that Mr. Gordon would work five days per week at a salary of $10,000.00 per month. Dr. Hurlston also agreed to provide Mr. Gordon with vacation coverage to accrue at “the rate of three (03) weeks per year, Saturdays and Sundays included.” Provisions for reviewing the terms and conditions of the contract, six months from the beginning date of the contract and annually thereafter, were included in the agreement.

|gBy February 2001, Mr. Gordon’s salary was increased to $12,500.00 per month. The parties dispute whether the contract was ever reviewed and modified during Mr. Gordon’s term with Dr. Hurlston. Dr. Hurlston contends that there was a salary modification and negotiations involving the payment of overtime. Dr. Hurlston claims that he presented a new contract to Mr. Gordon at the time Mr. Gordon announced his resignation. On February 9, 2001, Mr. Gordon submitted his resignation and gave a thirty-day notice of his intent to leave his employment. Mr. Gordon stopped working for Dr. Hurlston on March 20, 2001, and claims that Dr. Hurlston did not pay him for three weeks he worked during the month of March 2001. Meanwhile, Dr. Hurlston received notification two days prior to Mr. Gordon’s last day of work that Mr. Gordon was not licensed to provide CRNA services in the state of Louisiana. When the parties entered into the employment contract Mr. Gordon had received a temporary permit from the Louisiana Board of Nursing, effective September 15, 1999, with an expiration date of February 15, 2000. However, Mr. Gordon continued to provide CRNA services pursuant to the contract until March 20, 2001. Dr. Hurl-ston was further notified that he could be called upon to reimburse third parties for the amounts billed for CRNA services provided by Mr. Gordon during the time he was not licensed, and that he could not bill for services performed by Mr. Gordon that had not yet been billed.

On September 19, 2001, Mr. Gordon filed a petition for “Past Due Wages Attorney’s Fees and Court Costs.” In response, Dr. Hurlston filed an “Answer and Reconventional Demand” seeking reimbursement for CRNA services performed by Mr. Gordon during the period he was not licensed. The trial court rejected Mr. Gordon’s claim that he was an employee of Dr. Hurlston and, therefore, entitled to lathe remedies prescribed by La.R.S. 23:631. With respect to Dr. Hurlston’s reconventional demand, the trial court found in favor of Dr. Hurlston, and against Mr. Gordon, granting Dr. Hurlston’s request for reimbursement of amounts billed and paid for services provided by Mr. Gordon as a CRNA when he was not licensed to provide such services. It is from this judgment that Mr. Gordon appeals.

The following issues are presented for our review:

(1) whether Mr. Gordon was an employee or independent contractor;
(2) whether Mr. Gordon is entitled to past due wages, vacation pay, penalties, and attorney fees;
(3) whether the trial court erred in concluding that Dr. Hurlston suffered financial losses as a result of Mr. Gordon’s unlicensed status; and,
(4) whether Dr. Hurlston was entitled to attorney fees.

LAW AND DISCUSSION

Mr. Gordon asserts that although his agreement with Dr. Hurlston states that he is to supply CRNA services as an independent contractor, he is actually an employee of Dr. Hurlston. Therefore, he argues he is entitled to be paid “on or before the next regular payday or no later than fifteen days following the date of resignation, whichever occurs first.” La.R.S. 23:631(A)(l)(b). He further notes that failure to pay subjects the employer to penalties and attorney fees. La.R.S. 23:632.

Independent Contractor/Employee

The distinction between independent contractor and employee status is a factual determination decided on a case-by-case basis. Tower Credit, Inc. v. Carpenter, 01-2875 (La.9/4/02); 825 So.2d 1125. Mr. Gordon raised the issue of Lwhether he was an employee of Dr. Hurl-ston or an independent contractor. The application of La.R.S. 23:631-632 to the present case is contingent upon a finding that Mr. Gordon was, in fact, an employee of Dr. Hurlston. See Knapp v. The Management Co., 476 So.2d 567 (La.App. 3 Cir.1985).

In Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), the supreme court found the following factors relevant in determining whether the principal-independent contractor relationship exists, so as to relieve the employer from liability for the tortious acts of its employee: (1) there is a valid contract between the parties; (2) the work being done is of an independent nature such that the contractor may employ nonexclusive means in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered; (4) there is a specific price for the overall undertaking agreed upon; and (5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. The supreme court’s analysis with respect to determining whether one is an independent contractor or an employee for purposes of liability under La.C.C. art. 2320 is helpful in determining an employee’s status vis-a-vis the employer’s liability for claims arising under La.R.S. 23:631.

In Hughes v. Goodreau, 01-2107, p. 7 (La.App. 1 Cir. 12/31/02); 836 So.2d 649, 656, writ denied, 03-0232 (La.4/21/03), 841 So.2d 793, the court explained “[i]t is not the actual supervision or control which is actually exercised by the employer that is significant, but whether, from the nature of the relationship, the right to do so |¡¡exists.” The trial court concluded that the relationship between Mr. Gordon and Dr. Hurlston was one of principal-independent contractor and not one of employer-employee. We find this conclusion to be supported by the record. The agreement between Mr. Gordon and Dr. Hurlston is entitled “Independent Contractor’s Agreement.” Mr. Gordon was hired by Dr. Hurlston to perform a specific task as a licensed CRNA. Dr. Hurlston did not control or direct the manner in which Mr. Gordon provided anesthetic to patients. The contract also allowed Mr. Gordon to provide CRNA services to companies other than Dr. Hurlston. Dr. Hurlston paid Mr. Gordon a flat rate per month without taking any deductions from that monthly compensation rate. Maintaining his nurse anesthetist license was Mr. Gordon’s responsibility, not Dr. Hurlston’s. Further, although Mr. Gordon authorized Dr. Hurl-ston to bill for his services, he had the right to conduct his own billing. Mr. Gordon chose to have Dr. Hurlston do the billing. Moreover, Dr. Hurlston did not supply Mr. Gordon with the equipment and materials necessary for Mr. Gordon to provide his services. The record shows clearly that Dr. Hurlston did not have the right to supervise and control Mr. Gordon’s work. Thus, we find no manifest error in the trial court’s finding that Mr. Gordon was an independent contractor.

Past Due Wages/Penalties/Attorney Fees

Mr. Gordon asserts that, because Dr. Hurlston faked to pay him for services he rendered during the pay period prior to his | ^resignation, the trial court should have awarded him past due wages, penalties, and attorney fees. On the other hand, Dr. Hurlston argues that prior to the time that payment for Mr. Gordon’s CRNA services became due, he discovered that Mr. Gordon did not possess a valid CRNA license. Therefore, the services performed by Mr. Gordon during the pay period prior to his withdrawal from the employment contract were performed without a license. Because Mr. Gordon performed those services without a license, Dr. Hurlston contends that he is unable to bill for those services and should not have to pay Mr. Gordon for them.

There is precedent in this circuit holding that the failure of a licensed contractor to maintain a license does not relieve the principal from an obligation to provide payment for services rendered. See Hagberg v. John Bailey Contractor, 435 So.2d 580 (La.App. 3 Cir.1983), writ denied, 444 So.2d 1245 (La.1984). We find that there is a clear distinction between the prior case law addressing licencing of general contractors and the particular facts of this case. The majority of cases addressing contractor licencing deal specifically with general contractor licensing and construction work. In the present matter, we are dealing with the very different situation of a highly specialized independent contractor working in the medical profession. The licensing in question in the present matter is not independent contractor licensing, but rather licensing of a medical specialist, presenting a somewhat unique public safety concern.

There is a clear distinction between the purposes for licensing general contractors such as construction workers and licencing specialized medical professionals such as CRNAs. Medical professionals, through the very jobs they perform, are directly responsible for the health, safety, and welfare of the people they treat. In such a sensitive profession as this, the importance of ensuring proper training through licensing procedures takes on a high level of importance.

In addition to this added concern for the safety and welfare of the public, the independent contractor agreement between Mr. Gordon and Dr. Hurlston in this 17instance clearly indicated by its terms that Mr. Gordon was solely responsible for obtaining and maintaining the required li-cencing for his certification as a CRNA. According to the contract agreement between the parties, Mr. Gordon’s properly licensed status was a material term of the principal-independent contractor agreement. The Independent Contractor’s Agreement provides, in pertinent part:

This agreement in made to be effective as of July 1, 1999 to record the understanding between Stanley R. Gordon, Certified Registered Nurse Anesthetist, (CRNA), and Glen D. Hurlston, M.D., a Professional Medical Corporation (Corporation), for the provision of anesthesia services to patients in Lees-ville, Louisiana and surrounding areas. CRNA agrees:
a. to furnish the corporation with the full time services of a certified registered nurse anesthetist (CRNA) duly licensed to practice in the State of Louisiana.
b. to furnish to the corporation proof of Medical Malpractice Insurance un the minimum amount required by current Louisiana law and proof of participation in the Louisiana Patient’s Compensation Fund. If applicable, anesthetist shall comply with the Louisiana Workmen’s Compensation Law.
c. to fulfill such continuing education requirements necessary to maintain licensure.

(Emphasis in original).

We agree with the trial court as to its finding that Mr. Gordon was not an employee of Dr. Hurlston, and, for the reasons stated above and under the clear terms of the Independent Contractor’s Agreement between the parties, we affirm the trial court’s denial of Mr. Gordon’s demand for payment of past due wages for CRNA services he provided on behalf of Dr. Hurlston.

Louisiana law does not allow an award of attorney fees, except where authorized by statute or contract. Quealy v. Paine, Webber, Jackson & Curtis, Inc., 475 So.2d 756 (La.1985). Since Mr. Gordon’s situation does not fall within the | ¿purview of La.R.S. 23:631-632, which provides for the payment of attorney fees for the prevailing employee, and he has not presented any other statutory or contractual authority for an award of attorney fees in the instant lawsuit, the award of legal fees is denied. We find likewise with respect to Mr. Gordon’s request for penalties.

Dr. Hurlston’s Reconventional Demand

In his reconventional demand, Dr. Hurlston seeks damages for the breach of the employment contract due to Mr. Gordon’s failure to maintain his CRNA license. Mr. Gordon’s temporary nurse anesthetist license expired on February 15, 2000, yet he continued to provide CRNA services for Dr. Hurlston until March 20, 2001. Dr. Hurlston contends he is entitled to reimbursement from Mr. Gordon for the amount of money he billed various patients and insurers for the services Mr. Gordon provided while not licensed. Dr. Hurlston claims he will have to reimburse or not bill those patients and insurers the amounts they paid him for CRNA services. Dr. Hurlston contends that one insurer, TriCare, has already recovered some of what it paid to Dr. Hurlston for CRNA services due to Mr. Gordon’s failure to maintain his license. Dr. Hurlston also claims that he decided not to bill other patients/insurers after he learned Mr. Gordon was not licensed when he provided CRNA services.

Dr. Hurlston requested reimbursement in excess of $200,000.00. Mr. Charles En-right of Southwest Louisiana Administrative Services, a company that provides practice management services for physicians, and that provided this service for Dr. Hurlston, testified on behalf of Dr. Hurlston regarding the reconventional demand. Mr. Enright testified that Dr. Hurlston did not bill for $19,305.00 in services after learning that Mr. Gordon did not have the proper license. He further testified that the amount of payments made to Dr. Hurlston for the period of time that Mr. Gordon was ^unlicensed totaled $265,016.24. The trial court found that $265,016.24 was the potential amount of reimbursement that Dr. Hurlston would have to make. Mr. Enright also testified that, as of the date of trial, the only insurer who requested reimbursement was TriCare, which had already been reimbursed $20,854.99. Tri-Care has indicated they will seek an additional sum of $13,194.56 for a total amount of $34,049.55. From Mr. Enright’s testimony, the trial court concluded that some of the reimbursement amount requested by Dr. Hurlston was speculative and therefore awarded Dr. Hurlston $53,354.55, the total of the amount Tri-Care had already been reimbursed ($20,854.99), the additional amount Tri-Care has stated they intend to seek ($13,194.56), and the amount Dr. Hurlston did not bill ($19,305.00).

We agree with the trial court’s conclusion that Dr. Hurlston is entitled to reimbursement due to Mr. Gordon’s failure to maintain his nurse anesthetist license and affirm the trial court’s award of $53,354.55.

Attorney FeesIDr. Hurlston

The trial court awarded Dr. Hurl-ston $2,500.00 in attorney fees. However, the employment contract between Mr. Gordon and Dr. Hurlston does not provide for the payment of attorney fees should a dispute as to the agreement arise. Further, there is no statute authorizing the payment of attorney fees under the circumstances presented in this case. Therefore, we find that the trial court erred in awarding Dr. Hurlston attorney fees.

DECREE

For the above reasons we affirm the trial court’s conclusion as to Mr. Gordon’s liability on Dr. Hurlston’s reconventional demand. We further affirm the trial court’s judgment finding that Mr. Gordon was an independent contractor of Dr. Hurlston and |innot entitled to the benefits of La.R.S. 23:631-632. We further reverse the judgment of the trial court with respect to its award of attorney fees to Dr. Hurlston as there was no contractual agreement or statutory provision authorizing such an award. It is further ordered that the assessment of costs in the trial court is affirmed. Finally, it is ordered that all costs of this appeal are to be borne by Stanley Richard Gordon.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

THIBODEAUX, J., dissents in part and assigns written reasons.

^THIBODEAUX, J.,

dissenting in part.

The majority affirms the trial court on Dr. Hurlston’s reconventional demand of $53,354.55 and affirms the trial court’s denial of Mr. Gordon’s request for past due wages. I disagree on these two issues.

The plaintiff in Hagberg v. John Bailey Contractor, 435 So.2d 580 (La.App. 3 Cir. 1983), writ denied, 444 So.2d 1245 (La. 1984), sought payment for work it did in connection with rejuvenating and resurfacing streets in Lake Arthur, Louisiana. The general contractor, with which the sub-contractor company worked on the project, refused to pay because it found out that the sub-contractor failed to maintain its contractor license and was not licensed at the time the road work was done. However, at the time the two contractors entered into the agreement to upgrade the streets, the sub-contractor was properly licensed to do the work.

After noting that the purpose of the state’s contractor’s licensing requirement “is [for] the protection of general public ‘against the incompetent, inexperienced, unlawful and fraudulent acts of contractors,’ ” this court held that this case “does not present a situation of the type within the intended scope of protection hof the licensing statute.” Hagberg, 435 So.2d at 586. We further held “[wjhere incompetency or inexperience or fraudulence is not involved, the licensing statute can not be invoked to avoid payment of valid charges.” Id. Likewise, in the present case, Dr. Hurlston does not allege that Mr. Gordon was incompetent in providing nurse anesthetist services, nor does he allege that Mr. Gordon was inexperienced or acted fraudulently. Mr. Gordon testified that he was unaware that his temporary license had expired and there is no evidence in the record to show that Mr. Gordon did not perform his duties competently. He certainly was experienced in that he had worked for Dr. Hurlston since June 30,1999.

The majority seeks to distinguish Hag-berg by observing that “[i]n such a sensitive profession [medical] as this, the importance of ensuring proper training through licensing procedures takes on a high level of importance” because “[m]edical professionals ... are directly responsible for the health, safety, and welfare of the people they treat.” Indisputably, this is true. However, isn’t a contractor which is in charge of repairing streets also responsible for the safety and welfare of the citizens which use those streets? Furthermore, there is not one allegation of Mr. Gordon’s incompetence, inexperience, or fraudulent conduct. The majority’s attempt to distinguish Hagberg is unpersuasive. Mr. Gordon’s failure to maintain his nurse anesthetist license cannot be invoked by Dr. Hurlston to avoid payment of valid charges for work done by Mr. Gordon. That Mr. Gordon was not licensed is a matter to be dealt with by the appropriate state licensing authority. Dr. Hurlston has collected for these services and TriCare or an insurer may or may not seek reimbursement for these charges which have been collected by Dr. Hurlston. What if reimbursement is not sought? Does Dr. Hurlston get the benefit of the services performed by Mr. Gordon but Mr. Gordon does not?

laTri-Care has only indicated it may seek reimbursement from Dr. Hurlston for $13,194.56. Dr. Hurlston has not reimbursed Tri-Care for that amount. He, therefore, has not shown a loss of $13,194.56. An intention by Tri-Care to seek reimbursement is too speculative and should not be a basis for recovery. The majority has effectively lowered the standard for a breach of contract recovery based on an intent to recover. That is improper. I, therefore, would amend the trial court’s judgment to award Dr. Hurl-ston $40,159.99 on his reconventional demand.

For the foregoing reasons, I respectfully dissent.