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

text:
    Jean BERTHELOT v. Dr. William A. STALLWORTH.
    No. 2003-CA-1771.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 2004.

      Robert A. Preston, Jr., New Orleans, LA, for Plaintiff/Appellant, Jean Berthelot.
    Al M. Thompson, Jr., Berrigan, Litch-field, Schonekas, Mann, Traína and Thompson, L.L.C., New Orleans, LA, for Defendants/Appellees, The Estate of Dr. William A. Stallworth and Evanston Insurance Company.
    Simeon B. Reimonenq, Jr., Seth A. Schmeeckle Lugenbuhl, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for Defendants/Appellants, Travelers Health Network of Louisiana, Inc., Metrahealth, Inc., United Healthcare Of Louisiana, Inc.
    (Court composed of Judge JAMES F. MCKAY, III, Judge TERRI F. LOVE, and JUDGE MAX N. TOBIAS, JR.).
   _jjMAX N. TOBIAS, JR., Judge.

This case arises from the alleged medical malpractice of a physician who would not order a mammogram for his patient, the plaintiff, because she manifested no objective symptoms and was not yet 40 years of age but who was shortly thereafter diagnosed with breast cancer.

On 7 January 1993, Jean Valette Berthe-lot (“Berthelot”) visited Jacquelyn Wy-check, M.D., her gynecologist, for a wellness examination. During the course of the examination, Dr. Wycheck performed a breast examination and told Berthelot that the results were normal. However, she recommended that Berthelot, who’ was 35 years old at the time, undergo a mammogram. She told Berthelot that because she was not her primary care physician, under the rules of the HMO with whom Berthelot was insured, she could not order a mammogram because her breast examination was normal. Berthelot then scheduled an appointment with her primary care physician, William Stallworth, M.D., a general practitioner, so that he could order a mammogram as recommended by Dr. Wy-check.

On 5 February 1993, Berthelot visited Dr. Stallworth and asked him to order a mammogram. He advised her that he would not order the test, as he did not order | ^mammograms for women under 40 years of age absent symptoms or a history of breast cancer in the immediate family. Berthelot called Dr. Wycheck and told her that she would not be able to have the mammogram, as Dr. Stallworth had refused to order one and she could not afford to pay for one out of her own pocket. Dr. Wycheck did not contact Dr. Stallworth to discuss her recommendation for a mammogram and Berthelot apparently did not pursue the matter further at that time.

In the latter part of May 1993, Berthelot performed a self-examination of her breasts and felt a lump approximately the size of a small pea in her breast. She returned to Dr. Stallworth, who promptly ordered a mammogram. The mammogram revealed a sizable tumor that was determined to be cancerous. Berthelot was referred to a surgeon, Alan Stolier, M.D., who advised her that her entire breast would have to be removed given the size of the tumor. He also told her that, without surgery, she had only five or six months to live.

On 22 June 1993, Berthelot underwent a left modified radical mastectomy, right simple mastectomy, and had seven lymph nodes removed. Following surgery, Ber-thelot was treated by an oncologist, Milton Seiler, M.D., and underwent four courses of chemotherapy. Following her chemotherapy, Berthelot was referred to Thomas Weatheral, M.D., who administered radiation therapy for six weeks.

At all relevant times of her diagnosis and treatment, Berthelot was covered by an HMO plan provided by her employer, the Orleans Parish School Board, 13through Travelers Health Network of Louisiana, Inc. (“Travelers Health Network”). Under the plan, Berthelot was to choose a primary care physician, who would act as the “gatekeeper” of her care and whose authorization was necessary to receive a mammogram. Berthelot chose Dr. Stall-worth as her primary care physician, as Dr. Stallworth was under contract to Travelers Health Network as a designated primary care physician. Under the terms of the contract between Travelers Health Network and Dr. Stallworth, Dr. Stall-worth was designated as an independent contractor.

On 31 May 1994, Berthelot filed suit against Dr. Stallworth and his medical malpractice insurer, Evanston Insurance Company, alleging that Dr. Stallworth committed medical malpractice by refusing to order a mammogram in February 1993 after Dr. Wycheck had recommended it. Berthelot alleged that Dr. Stallworth’s failure to order the mammogram was a breach of the standard of care and that “as a result of Dr. Stallworth’s failure to diagnose the cancer and/or order mammograms, petitioner’s cancer was allowed to grow and spread.”

On 4 June 1996, Berthelot filed a supplemental and amending petition, naming as defendants Travelers Health Care of Louisiana, Inc., Travelers Insurance Company, Metrahealth Care Plan of Louisiana, Inc., Metrahealth Insurance Company, United Health Care of Louisiana, Inc., and United Insurance Company (collectively hereinafter “Travelers”). Berthelot alleged that Dr. |4Stallworth, in his capacity as a primary care physician for Travelers, was the agent of Travelers and that his negligence could be imputed to Travelers under a theory of respondeat superior. Specifically, Berthelot contended that because Travelers established medical and financial restrictions on the treatment rendered by its primary care physicians, it was the de facto employer of Dr. Stallworth.

A jury trial commenced on 17 March 2003 and lasted eight days. After hearing testimony from Berthelot, her treating physicians, representatives from Travelers, and a number of expert witnesses, the trial court granted a motion for directed verdict filed by Dr. Stallworth and Evanston Insurance Company on the grounds that the plaintiff failed to establish a standard of care and, ergo, Dr. Stallworth violated no applicable standard of care. As such, the only issues remaining before the jury during its deliberations concerned the liability of the remaining insurance companies and what, if any, damages flowed from any finding of liability.

The jury returned a verdict in favor of Berthelot against Travelers in the amount of $636,506.00. Through the jury interrogatories submitted by the trial court, the jury determined that Travelers gave Ber-thelot reason to believe that Dr. Stallworth had the authority to act on behalf of Travelers, thus making him its apparent agent. The jury further found that Berthelot reasonably relied on the “manifested authority,” and that Dr. Stallworth’s failure to order a mammogram was “the result of some motive of interest or ill will.” It is through this apparent agency that Travelers was found liable to Berthelot.

Travelers appealed the trial court’s judgment, asserting eight assignments of error. Generally, they assert that the trial court’s legal error denied Travelers of 1 ¡/‘substantial rights.” Specifically, Travelers asserts that the trial court erred by (1) denying Travelers’ motion for directed verdict and JNOV; (2) refusing to provide an instruction on whether Travelers breached its contract with Berthelot; (3) refusing to admit into evidence and take judicial notice of certain facts; and (4) allowing Dr. Wy-check to give opinion testimony. Further, Travelers asserts that the jury erred in finding that Dr. Stallworth was Travelers’ agent and computing a manifestly erroneous award for Berthelot.

Berthelot appealed the trial court’s dismissal of Dr. Stallworth and his medical malpractice insurer, asserting that in light of the fact that the jury found that Berthe-lot “suffered injury as a result of Dr. Stall-worth’s failure to order a mammogram” and further that “Dr. Stallworth’s failure to order a mammogram was the result of some motive of interest or ill will,” it is nonsensical that Dr. Stallworth be dismissed from this litigation.

First, Travelers takes issue with the trial court’s instruction of the jury as legally erroneous, confusing, and misleading. The trial judge instructed the jury, in pertinent part:

In resolving the issue of liability in this case, there are certain rulings of law that you must consider. Louisiana law provides HMOs include an annual pap smear for cervical cancer and a minimum mammography examination which is one baseline mammogram for any woman who is 35 through 39 years of age. Under Louisiana law, an obligation is a legal relationship whereby a person called the obligor is bound to render a performance in favor of another called an obligee. Performance may consist of giving, doing or not doing something. An obligor is liable for the damages caused by his failure to perform a conventional obligation. A failure to perform results from nonperformance, defective performance, or delay in performance. Damages are measured by the loss sustained by the obligee and the profit of which he has been deprived.

1 fiTravelers objected to the instruction, but the objection was overruled. The jury apparently needed further guidance on the law in question, as it asked the judge for a clarification during deliberations. The trial court answered the jury’s question, which was not transcribed by the court reporter, as follows:

Your question is when did state law go into effect where mammograms had to start at 35 years of age? You don’t need to know when the state law went into effect. I gave you the law and I’ll just read that portion of the law that applies.
Louisiana law provides that HMO law that HMO include an annual pap smear for cervical cancer and a minimal mam-mographic, minimal mammography examination, which is one baseline mammogram for any woman who is 35 through 39 years of age.

Travelers argues that the instruction given to the jury implies that Travelers was under a legal duty to ensure that Berthelot receive a baseline mammogram at age 35, even though Travelers had no policy in effect by which its primary care physicians were prohibited from ordering baseline mammograms earlier than age forty. Further, it is undisputed that had Dr. Stallworth ordered the mammogram when originally requested by Berthelot, Travelers would have paid for the test.

In support of her argument that Travelers breached a duty to her when Dr. Stall-worth refused to order a baseline mammogram in February 1993, Berthelot cites Louisiana’s HMO law, La. R.S. 22:215.11, which provides, in pertinent part:

(1) Any health coverage plan which is delivered or issued for delivery in this state shall include benefits payable for an annual Pap test and minimal mammography examination as provided in this Subsection.
(2) In this Subsection, “minimum mammography examination” means mam-mographie examinations performed no less frequently than the following schedule provides:
a. One baseline mammogram for any woman who is thirty-five thirty-nine years of age.
|7b. One mammogram every twenty-four months for any woman who is forty through forty-nine years of age or more frequently if recommended by her physician.
c. One mammogram every twelve months for any woman who is fifty years of age or older.
(3) The annual Pap test for cervical cancer and the minimum mammography examination shall be bovered when rendered or prescribed by a physician or other appropriate health care provider licensed in this state and received in any licensed hospital or in any other licensed public or private facility, or portion thereof, including but not limited to clinics and mobile screening units.

[Emphasis supplied.]

Although Berthelot reads into the law an affirmative duty on the part of an HMO to require its physicians to order mammograms for female patients upon reaching the age of 35, the statute clearly only prescribes when an insurance company must pay for a mammogram, and does not govern or direct when a physician under contract with any HMO should order one. La. R.S. 22:215.11 merely provides that an HMO must pay for a mammogram for a woman 35 years of age if ordered by a physician. Any implication of a legal duty on the part of a physician to order a mammogram based merely on the age of the woman is legal error. Further, Dr. Stallworth testified by deposition, and a representative of Travelers confirmed, that he was not required to receive authorization from the HMO to order a mammogram. Rather, it was not his practice to order a baseline mammogram for a woman with no objective symptoms of breast disease or a family history of breast disease when the woman was younger than 40 years of age.

|sWe agree with Travelers that the trial court’s instruction to the jury was legally erroneous. This Court has described a trial court’s duty regarding jury instruction as follows:

A trial judge has a duty to give instructions which properly reflect the law applicable in light of the facts of the particular case. In order to fulfill that duty, he must both require that the jury consider only the correct law and avoid confusing the jury.

Fryson v. Dupre Transport, Inc., 2000-0859, p. 8 (La.App. 4 Cir. 8/29/01), 798 So.2d 1012, 1019 quoting, Guidry v. Bank of LaPlace, 94-1758, pp. 3-4, (La.App. 4 Cir. 9/15/95), 661 So.2d 1052, 1055. The initial jury instruction regarding La. R.S. 22:215.11, as well as the trial court’s response to the question posed by the jury during deliberations, implies that there is a legal duty on the part of Travelers to ensure that Berthelot undergo a mammogram upon reaching the age of 35, when there is quite simply no such duty. As such, we find that the trial court’s jury instruction was erroneous and mislead the jury with regard to its evaluation of Travelers’ liability.

Because the trial court committed legal error in giving a vague and misleading jury charge that prejudiced Travelers, we must set aside the jury’s verdict and perform a de novo review of the record. Id. at 1019. Although we find that there was no duty on the part of Travelers to require Dr. Stallworth to order a mammogram for Berthelot under Louisiana law, the record on appeal reveals that Berthelot also advanced a theory of respondeat superior in her suit against Travelers, ostensibly based upon a quasi-employment relationship between Travelers and Dr. Stall-worth.

We are mindful that “vicarious liability does not apply when an independent contractor relationship exists.” Marchetta v. CPC of Louisiana, Inc., 99-0485, p. 6 (La.App. 4 Cir. 3/22/00), 759 So.2d 151, 155. In Marchetta, a child was admitted to a hospital for psychiatric treatment after being referred by a physician who provided treatment at the hospital pursuant to a contract. The plaintiff asserted that the physician was an employee of the hospital, and should be found liable for any malpractice committed by the physician at that facility. However, this court noted that in determining whether vicarious liability applies in a particular case, it must examine several fact-sensitive questions, including whether the purported employer had (1) the right of control or supervision; (2) the selection and engagement of the workers; (3) the payment of wages; and (4) the power of dismissal. Marchetta, p. 6, 759 So.2d at 155, quoting, Remet v. Martin, 97-0895, pp. 4-5 (La.App. 4 Cir. 12/10/97), 705 So.2d 1132, 1135. Further, we noted that the single most determinative factor governing whether a party is an independent contractor or an employee is “the right of an employer to control the work of the employee.” Id., quoting, Roberts v. State of Louisiana, 404 So.2d 1221 (La.1981). The testimony presented at trial unquestionably preponderates that Travelers did not control the medical practice of Dr. Stallworth. While Travelers determined whether it would pay for services provided to its members by Dr. Stall-worth, it did not, for purposes of this case, proscribe how or when mammograms were to be ordered or administered. In fact, it is clear that under the policy" covering Berthelot, Travelers would have paid for the mammogram had Dr. Stallworth ordered it in February 2003. And, as noted above, Dr. Stallworth testified that he was not required to receive any authorization to order the mammogram. We also note that Dr. Stallworth had been Berthelot’s physician before Travelers provided her coverage and that she would have been able to change primary care physicians under the Travelers plan at any time. Thus, any | infinding that Travelers “practiced medicine” through Dr. Stallworth or otherwise controlled his practice is not supported by the evidence in the record before us. We find that no employment relationship existed between Travelers and Dr. Stallworth. As such, the doctrine of respondeat superior is inapplicable to the case at bar.

With regard to Berthelot’s assignment of error, we find that the trial court did not err in granting the directed verdict in favor of Dr. Stallworth and his medical malpractice insurer. The directed verdict was granted prior to jury deliberations on the grounds that Berthelot failed to carry her burden of proof regarding the standard of care. A trial court is vested with much discretion in granting a directed verdict. Lott v. Lebon, 96-1328, p. 4 (La. App. 4 Cir. 1/15/97), 687 So.2d 612, 615. However, a directed verdict should only be granted when, after a review of the evidence presented at trial, reasonable persons could not disagree as to the outcome of the case. Id. A review of the record on appeal confirms the trial court’s finding that insufficient evidence was put forth to establish the standard of care regarding the ordering of baseline mammograms. In fact, although plaintiffs counsel asked the testifying physicians generally whether breast cancer is more easily treated if diagnosed earlier, no testimony was elicited regarding the age generally accepted in the medical community as appropriate for a baseline mammogram. Even Dr. Wy-check, Berthelot’s gynecologist who first recommended the mammogram, admitted in her deposition testimony that there are several standards in the medical community for ordering baseline mammograms, and that different physicians in the community might have different standards. Because Berthelot failed to put forth any evidence that could assist the jury in determining the proper standard of care on this issue, the trial court did not err in | ^granting a directed verdict in favor of Dr. Stallworth and his medical malpractice insurer.

After a review of the record and evidence, we find that the trial court erred in failing to grant the motion for directed verdict in favor of Travelers but affirm its ruling with regard to the dismissal of Dr. Stallworth and Evanston Insurance Company.

AFFIRMED IN PART, REVERSED IN PART.

      . Dr. Stallworth was deceased at the time of trial and, consequently, his estate was substituted as a defendant in the litigation. For purposes of this opinion, we do not distinguish between the estate of Dr. Stallworth and Dr. Stallworth as juridical entities.

      . Berthelot submitted to this court a number of documents purporting to establish a standard of care regarding the ordering of mammograms, but we have declined to review these materials, as they were not presented to the jury at trial or proffered as evidence, and therefore are not part of the record on appeal.


source: Caselaw Access Project

author: |, TERRI F. LOVE, Judge.

license: Public Domain

text:
    John Hartson LEARY v. Robert M. FOLEY and The Tally Ho Club.
    No. 2003-CA-2132.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 2004.
    Joe M. Inabnett, New Orleans, LA, for Plaintiff/Appellee.
    Frederick W. Bradley, Oreck, Bradley, Crighton, Adams & Chase, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   |, TERRI F. LOVE, Judge.

Defendant appeals the trial court’s judgment granting Plaintiffs Writ of Mandamus. For the reasons assigned below, we affirm the trial court’s finding.

FACTS AND PROCEDURAL HISTORY

The plaintiff, John Leary (“Leary”), is a member and the owner of one share of the corporate stock of The Tally Ho Club (“Club”), the defendant. The Club is a non-profit corporation organized under La. R.S. 12:201 et seq. for the exclusive purpose of hunting and fishing. Leary paid $100 for a single share of stock. Under the Articles and By-laws of the Club, only members are allowed to become shareholders.

On May 18, 2003, Leary made a written request to inspect records of the Club at the registered address pursuant to La. R.S. 12:223. The Club responded on May 28, 2003, in the affirmative stating the records were located at the Clubhouse and would be available between the hours of 3:00 p.m.-5:00 p.m. on Wednesday, June 11, 2003. The Club requested Leary sign a confidentiality | ^agreement prior to inspection and offered to answer any-questions at the Board Meeting on that date.

Leary immediately responded via facsimile that pursuant to the aforementioned statute he was not required nor would he sign a confidentiality agreement. He also requested that the records be moved to the Club’s registered office or their attorney’s office to comply with the statute. Leary maintained that the two hour window was not sufficient and requested more time. The Club responded via mail, extending the amount of time given for inspection from 5:00 p.m. to 5:45 p.m. and requested Leary to appear before the Board of Directors to discuss the purpose of his inquiry. The Club also expressed concern about the broad and unprecedented request Leary made and questioned his motive and purpose in making the request. The Club drafted a confidentiality agreement demanding his signature and repeated their denial of his request to move the records citing inconvenience and expense.

Leary responded that the terms demanded by the Club were unacceptable. In response to the Club’s demands, Leary filed a Petition for Writ of Mandamus on June 12, 2003. Pursuant to a letter from the Club dated June 12, 2003, the Board of Directors voted to formally reprimand Leary on that same day because he refused to attend the board meeting, for his recent rude behavior, and for his repeated refusal to abide by the confidentiality clause.

The trial court granted Leary’s request issuing an Alternate Writ of Mandamus, which ordered the Club to comply with Leary’s demand for production of documents or show cause to the contrary at a later hearing date. The following day, June 13, 2003, the Club revoked his membership notifying him by U.S. mail | ¡¡postmarked June 17, 2003. After the Club revoked Leary’s membership, he filed a Petition for Damages, Petition for Temporary Restraining Order, Rule for Preliminary Injunction, and for Permanent Injunction. The trial court issued a Temporary Restraining Order that restrained the Club from:

b. taking steps to enforce defendant’s action to expel petitioner, John Hartson Leary, from membership in the Tally Ho Club, or to remove his belongings from the premises of and prevent him from gaining access to the premises of Tally Ho Club;
c. taking steps to cancel the capital stock of petitioner, John Hartson Leary, and his capital stock interests in the Tally Ho Club corporation.

At the hearing, the trial court did not admit testimony or evidence. The trial court simply ruled on the memoranda submitted by the parties. The trial court ordered the Club to produce the records for Leary’s inspection covering the period of May 18, 1998, to the date of the Court’s order, October 21, 2003. Subsequently, the defendant instituted this appeal. The Club asserted only one assignment of error: The trial court committed manifest error in ordering the Club to produce records to an individual who was not a shareholder. Leary discusses his claim for damages in his brief, but withdrew this issue during oral arguments.

DISCUSSION

The Club argues the trial court erred by ordering them to produce records to an individual who was not a member or shareholder. The appellant agrees that under La. R.S. 12:223(C), a member or shareholder has the right to inspect records. But, in the case at bar, Leary is not currently a member or shareholder, therefore he | ¿should not be allowed to inspect records. Leary contends he was a member at the time of his request, therefore his right to inspect records is reserved.

Laws relating to Non-Profit Corporations is located in Title 12 of the Louisiana Revised Statutes. La. R.S. 12:223 dictates who may inspect the corporate records of non-profit corporations. It provides in pertinent part:

A. Every corporation shall keep at its registered office (1) records of the meetings of its members and directors, and of committees of the board, share and membership records giving the names and addresses of the members in alphabetical order by classes and series and the number of shares held by each, and records of its assets, liabilities, receipts, disbursements, gains, losses, capital and surplus; and (2) separate records of all trust funds held by it. Whenever membership is terminated, this fact shall be recorded in the share or membership record together with the date on which the membership ceased, and transfers of shares shall similarly be recorded.
C. Every shareholder and voting member may examine in person, or by agent or attorney, at any reasonable time, the records of the corporation listed in subsection A of this section.

La. R.S. 12:223

The aforementioned article does not address members or shareholders who are expelled from non-profit corporations, who still seek to inspect records. This is an issue of first impression before the Court. Therefore, we look to statutes regarding business corporations to answer this question. La. R.S. 12:103 is contained in “Louisiana Business Corporation Law” and discusses the right of shareholders in business corporations to inspect records. As in non-profit corporations, a shareholder may inspect records with notice if he or she owns a requisite number of shares and has a proper purpose.

The Club cites numerous cases from various jurisdictions including Colorado and Pennsylvania to support their argument that a recently expelled Rmember cannot inspect records of a non-profit corporation. We find this authority unpersuasive and conclude that our Brethren of the Third Circuit provides us with useful analysis on resolving this issue. The Third Circuit held the determinative date, in regards to La. R.S. 12:103 rights, is the date of demand, not the date of corporate compliance. Naquin v. Air Engineered Systems & Services, 423 So.2d 713, 716 (La.App. 3rd Cir.1983). In Naquin, the plaintiff demanded inspection of defendant’s corporate records after he was discharged from their employment. As a competitor he was required to own 25% of all outstanding stock. After his request, the defendant issued 15,000 new shares of stock, thereby diluting the plaintiffs holding to less than 25%, unable to inspect records. Id. at 715. The Third Circuit correctly identified the scheme as stock watering and held the determinative date to enforce inspection rights is the date of demand.

If we assume Leary’s expulsion from the Club was proper, it does not negate his time as a member. At the time Leary demanded to inspect the records of the Club, May 18, 2003, he was a member. The Club agrees Leary was a member and shareholder on the date of demand. Therefore, Leary was eligible to inspect the records. The trial court only ordered the Club to produce records for the immediate five years prior to Leary’s demand date. The trial court did not err in issuing the writ of mandamus.

AFFIRMED.

      . The registered address is the home address of the Club’s president. The clubhouse does not have a municipal address required for incorporation.

      . According to Leary's Petition for Writ of Mandamus, his stock certificate was issued on September 1, 1999. We can only assume the trial court allowed Leary to inspect the records for the five years prior to his request date.

      . Appellants mention in their brief and oral arguments that the trial court erred by failing to admit evidence that Leary was expelled pursuant to the Club’s By-laws. The Club failed to proffer evidence, nor did they assign this as error in this appeal.

      . Sto-Rox Focus on Renewal Neighborhood Corp. v. King, 40 Pa.Cmwlth. 640, 398 A.2d 241 (1979); Levitt v. Calvary Temple of Denver, 33 P.3d 1227 (Colo.Ct.App.2001).


author: | PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Ronnie L. FRANCOIS and Ricky M. Kemp.
    No. 2002-KA-2056.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 2004.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Claire A. White, Assistant District Attorney of Orleans Parish, New Orleans, LA, for Plaintiff/Appellee.
    Karen G. Arena, Louisiana Appellate Project, Metairie, Louisiana, for Defendant/Appellant (Ronnie L. Francois).
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant (Ricky M. Kemp).
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DAVID S. • GORBATY, and Judge ROLAND BELSOME).
   | PATRICIA RIVET MURRAY, Judge.

This case is before us on remand from the Louisiana Supreme Court. In our earlier decision in this matter, we reversed the convictions of defendants, Ronnie L. Francois and Ricky M. Kemp, finding the evidence insufficient. State v. Francois, 2002-2056 (La.App. 4 Cir. 4/9/03), 844 So.2d 2056. The Louisiana Supreme Court reversed our decision, reinstated the convictions, and remanded for us to consider the pro se assignments of error asserted by Mr. Francois, which we did not consider in our earlier decision. State v. Francois, 2003-1313 (La.4/14/04), 874 So.2d 125. For the reasons that follow, we vacate Mr. Francois’ adjudication and sentencing as a fourth felony habitual offender and remand for his resentencing as a third felony habitual offender.

At the outset, we find the record reflects a patent error in the trial court’s adjudication of Mr. Francois as a fourth felony habitual offender. The record reflects that the multiple bill included as one of Mr. Francois’ alleged prior felony convictions a crime committed by his co-defendant, Mr. Kemp. Particularly, the multiple bill includes a February 4, 1991, conviction in case # 344-981 “C”. In that case, the co-defendant, Mr. Kemp, pled guilty to possession of cocaine. The | ^State’s inclusion of that 1991 offense in Mr. Francois’ multiple bill was an obvious oversight.

At the multiple bill hearing, the State introduced evidence regarding another 1991 offense that apparently did involve Mr. Francois. Specifically, it introduced documentation for a 1991 conviction for theft of goods valued at over $100 and less than $500 in case # 347-752 “E”. That 1991 offense was not listed in the multiple bill and thus cannot be considered. Although a habitual offender bill does not charge a new crime but rather only is a method of increasing the punishment of a multiple offender, “[i]t is essential that the prior eonviction(s) be formally charged in order to sentence a defendant as a multiple offender.” State v. Donahue, 572 So.2d 255, 261 (La.App. 1 Cir.1990)(citing State v. Hingle, 242 La. 844, 139 So.2d 205, 206 (1961)). Accordingly, we find it was patently erroneous for the trial court to sentence Mr. Francois as a fourth felony habitual offender based upon either a prior felony conviction involving his co-defendant or a prior felony conviction as to which he was not specifically informed in the instant habitual offender bill of information.

Turning to Mr. Francois’ pro se assignments of error, he alleges the following five errors:

1. The evidence adduced in the multiple bill hearing is insufficient to prove beyond a reasonable doubt that the appellant is a fourth felony offender, since there was no evidence adduced to identify the appellant as the person “convicted” in any of the prior felony cases alleged in the multiple bill.
2. The trial court erred in finding the appellant to be a fourth felony offender on the basis of three prior felony convictions for which the State failed to introduce any evidence of the discharge date for the sentences imposed in the alleged prior cases, and where the discharge dates are pertinent to a finding of appellant as a multiple offender under R.S. 15:529.1.
3. The trial court erred in finding the appellant to be a fourth felony offender on the basis of three alleged prior felony convictions, two of which are |salleged to have resulted from guilty pleas, and where the prosecutor failed to offer any contemporaneous record taken during those guilty pleas and which evidences a valid waiver of the appellant’s Boykin rights. •
4. The appellant was denied his constitutional right to effective assistance of counsel where his attorney allowed officer Jay Jacquet to testify that fingerprints the officer obtained from the appellant in open court matched fingerprints he observed on arrest registers he brought with him to court for the multiple bill hearing, and where officer Jacquet was not properly qualified by the court as an expert in fingerprint analysis.,
5. The trial court abused his discretion in qualifying officer Jay Jacquet as an expert in fingerprint analysis without hearing any testimony regarding the witnesses’ education, training and experience in the field. Thus, all expert testimony regarding the comparison of fingerprints must be excluded.

As to the first assignment, Mr. Francois argues that the evidence was insufficient to convict him under the multiple bill. He argues that there was no evidence adduced to identify him as the person convicted in any of the prior felony cases alleged in the multiple bill. The State has the burden of proving the prior felony offenses and that the defendant was the same person convicted of those offenses. State v. Neville, 96-0137, p. 7 (La.App. 4 Cir. 5/21/97), 695 So.2d 534, 538-39. Various methods are available to prove that the defendant is the same person convicted of the prior felony offense, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record. State v. Henry, 96-1280 (La.App. 4 Cir. 3/11/98), 709 So.2d 322.

Mr. Francois’ multiple bill alleged that he was found guilty on March 9, 1992, of theft of goods valued at more than $100 and less than $500 in case # 352-559 “I”; that he pled guilty to possession of cocaine on February 4, 1991, in case #344-981 “C”; and that he pled guilty on November 25, 1985, to theft of goods | ¿valued at more than $100 and less than $500 in case # 308-847 “E”. At the hearing, the State offered the testimony of Officer Jay Jac-quet, who the parties stipulated to be an expert in fingerprint identification. Officer Jacquet testified that he had been qualified as an expert in fingerprint analysis and identification in every section of Civil District Court and one section of Criminal District Court. Officer Jacquet testified that he took Mr. Francois’ fingerprints on the morning of the hearing.

The State introduced the certified packet of the 1992 conviction that contained a bill of information, the docket master, the minute entry, and the arrest register. The fingerprints matched those on the arrest register. The State then introduced the certified packet of the 1985 conviction that contained the bill of information, the guilty plea form, the minute entry, and the arrest register. Again, the fingerprints matched.

Mr. Francois argues that the bills of information should have had his fingerprints on them in order to prove he was the same defendant convicted of the earlier crimes and that the fingerprints on the arrest register do not meet the La. R.S. 15:529.1 criteria. This court, however, held in State v. Wolfe, 99-0389 (La.App. 4 Cir. 4/19/00), 761 So.2d 596, that testimony comparing a defendant’s current fingerprints with fingerprints found on prior arrest records was sufficient to prove that the defendant was the person convicted of the prior offenses. Thus, in this case, the State proved Mr. Francois’ identity as the person who committed the earlier offenses.

|fiMr. Francois next argues that the State failed to meet its burden of proving that the ten-year period under La. R.S. 15:529.1(C) had not lapsed because it failed to prove his discharge dates. La. R.S. 15:529.1(C) provides:

This Section shall not be applicable in cases where more than ten years have elapsed since the expiration of the maximum sentence or sentences of the previous conviction or convictions, or adjudication or adjudications of delinquency, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said ten-year periods.

In State v. Martello, 98-2066 (La. App. 4 Cir. 11/17/99), 748 So.2d 1192, we noted that “[t]he expiration of the previous sentence is determined by the date of the actual discharge from supervision by the Department of Corrections.” Martello, 98-2066 at p. 14, 748 So.2d at 1201-02 (citing State v. Lorio, 94-2591, p. 4 (La. App. 4 Cir. 9/28/95), 662 So.2d 128, 130). The State generally has the burden of proving that the ten-year period under La. R.S. 15:529.1 has not elapsed. To do so, the State generally must prove the defendant’s discharge dates. However, when less than ten years have elapsed between convictions, it is not necessary for the State to prove discharge dates. State v. Tucker, 95-0030, p. 11 (La.App. 4 Cir. 9/18/96), 682 So.2d 261, 266. Such is the case here.

As discussed above, neither 1991 conviction may be used in this multiple bill adjudication. As such, the 1985 conviction must link up with the 1992 conviction, and the 1992 conviction must link up with the 2002 conviction. Ten years did not lapse between 1985 and 1992. The 1992 conviction was obtained March 9, 1992; this crime was committed August 17, 2000. Again, ten years did not lapse. This assignment of error is thus unpersuasive.

IfiMr. Francois next argues that the two prior guilty pleas do not establish that he pled intelligently and voluntarily. Again, the 1991 guilty plea cannot be considered; hence, the only issue is whether the 1985 guilty plea was properly considered. In State v. Shelton, 621 So.2d 769 (La.1993), the Louisiana Supreme Court reviewed the jurisprudence regarding the burden of proof in habitual offender proceedings; the Court held it is proper to assign a burden of proof to a defendant who contests the validity of his guilty plea. The procedure for determining the burden of proof in a multiple offender hearing has been summarized as follows:

If the defendant denies the multiple offender allegations then the burden is on the State to prove (1) the existence of a prior guilty plea, and (2) that defendant was represented by counsel when the plea was taken. Once the State proves those two things, the burden then shifts to the defendant to produce affirmative evidence showing (1) an infringement of his rights, or (2) a procedural irregularity in the taking of the plea. Only if the defendant meets that burden of proof does the burden shift back to the State to prove the constitutionality of the guilty plea. In doing so, the State must produce either a “perfect” transcript of the Boykin colloquy between the defendant and the judge or any combination of (1) a guilty plea form, (2) a minute entry, or (3) an “imperfect” transcript. If anything less than a “perfect” transcript is presented, the trial court must weigh the evidence submitted by the defendant and the State to determine whether the State met its burden of proof that defendant’s prior guilty plea was informed and voluntary.

State v. Winfrey, 97-427, p. 30 (La.App. 5 Cir 10/28/97), 703 So.2d 63, 80 (quoting State v. Conrad, 94-232 (La.App. 5 Cir. 11/16/94), 646 So.2d 1062, 1064).

Applying those principles to the instant case, the guilty plea/waiver of rights form in the 1985 case, # 308-847 “E”, is signed by Mr. Francois and his attorney; their signatures appear after a list of the Boy-kin rights. The minute entry also establishes that the trial court advised Mr. Francois of his constitutional rights and that his attorney was present. The State met its burden of showing that Mr. | yFrancois was advised of his rights. Mr. Francois put forth no evidence to show a procedural irregularity. This assignment is thus without merit.

Mr. Francois’ next assignment of error is ineffective assistance of counsel. The applicable principles for reviewing ineffective assistance of counsel claims have been summarized by this court as follows:

Generally, the issue of ineffective assistance of counsel is a matter more properly raised in an application for post-conviction relief to be filed in the trial court where an evidentiary hearing can be held. State v. Prudholm, 446 So.2d 729 (La.1984); State v. Sparrow, 612 So.2d 191 (La.App. 4 Cir.1992). Only when the record contains the necessary evidence to evaluate the merits of the claim can it be addressed on appeal. State v. Seiss, 428 So.2d 444 (La.1983); State v. Kelly, 92-2446 (La.App.4Cir.7/8/94), 639 So.2d 888, writ denied 94-2087 (La.1/6/95), 648 So.2d 921....
Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show that his counsel’s performance was deficient and that deficient performance prejudiced him. With regard to counsel’s performance, the defendant must show that counsel made errors so serious that counsel was not functioning as “counsel” guaranteed by the Sixth Amendment. As to prejudice, the defendant must show that counsel’s errors were so serious as to deprive the defendant of a fair trial, i.e. a trial whose result is reliable. Id., 466 U.S. at 687, 104 S.Ct. 2064. Both showings must be made before it can be found that the defendant’s conviction resulted from a breakdown in the adversarial process that rendered the trial result unreliable. Id. A claim of ineffective assistance may be disposed of on the finding that either of the Strickland criteria has not been met. State v. James, 555 So.2d 519 (La.App. 4th Cir. 1989), writ denied 559 So.2d 1374 (La.1990). If the claim fails to establish either prong, the reviewing court need not address the other. State ex rel. Murray v. Maggio, 736 F.2d 279 (5th Cir.1984).

State v. Brauner, 99-1954, p. 16 (La.App. 4 Cir. 2/21/01), 782 So.2d 52, 63.

Mr. Francois argues his counsel was ineffective for three reasons. First, he argues that counsel failed to object that the multiple bill alleged as the second of the three prior convictions the February 4, 1991 conviction for cocaine in case|s# 344-981 “C”, yet the State produced to no evidence to support that prior conviction. Second, he argues counsel was ineffective for failing to object to the prior guilty pleas being used in the multiple bill. Finally, he argues that counsel was ineffective for failing to object to the qualification of the fingerprint expert. We address these in reverse order. As to the use of the prior guilty pleas, that issue was addressed and rejected above.

As to the qualification of Officer Jacquet as a fingerprint expert, the parties entered a stipulation qualifying him as an expert. To the extent counsel did not object, competence of an expert is a question of fact to be determined within the sound discretion of the trial judge. State v. Sherer, 411 So.2d 1050 (La.982). Here, there was no abuse of discretion. Officer Jacquet had been qualified in every section of Civil District Court and in one section of Criminal District Court.

As to the State’s failure to produce evidence of the alleged 1991 offense, that issue was discussed at the outset. We found it patent error for the trial court to have considered either 1991 offense. As to Mr. Francois’ claim that his counsel was ineffective in failing to object to the State’s inclusion of his co-defendant’s prior conviction in the multiple bill, we find it appropriate to reserve that issue to post-conviction relief.

Mr. Francois’ fifth and final assignment of error is that the trial court abused its discretion in qualifying Office Jacquet as a fingerprint expert. That issue was addressed and rejected above.

| ¿DECREE

For the foregoing reasons, we reverse the multiple bill adjudication of Mr. Francois as a fourth felony offender, find Mr. Francois to be a third felony offender, and remand to the trial court for resentencing.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      . The conviction and sentencing of Mr. Kemp are not before us.

      . See also La. R.S. 15:529.1(D)(1)(b), which states that the district attorney has the burden of proving beyond a reasonable doubt any issue of fact and that the presumption of regularity of judgment shall be sufficient to meet the original burden of proof.

      . The State also introduced the certified packet of a 1991 conviction that contained the bill of information, the docket master, the arrest register, and the minute entry. As noted, that 1991 conviction was not included in the multiple bill and thus cannot be considered.

      . Although in his assignment of errors, Mr. Francois only refers to the qualification of Officer Jacquet as a basis for his ineffective assistance of counsel claim, he argues in his brief several other grounds on which he claims his counsel was ineffective. For completeness sake, we have addressed all his arguments.


author: | 2parro, j.

text:
    Arthur P. BOUDREAUX, II v. Mark JEFF, Dion John Authement, Rhonda Tabora, and Elizabeth Hays.
    No. 2003 CA 1932.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.

      Eddie N. Pullaro, Houma, for Plaintiff-Appellee Arthur P. Boudreaux, II.
    Brent J. Rhodes, Houma, for Defendant-Appellant Dion John Authement.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   | 2parro, j.

Dion John Authement appeals a judgment finding him solidarily liable with Mark Jeff for the payment of $45,000, plus interest and costs, to Arthur P. Bou-dreaux, II, based on a finding that Authement and Jeff conspired to defraud Bou-dreaux of that amount in connection with a sale of real property. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Boudreaux had inherited from his father two pieces of real property on either side of Grand Caillou Highway 57 in Ter-rebonne Parish. The property on the east side of the highway had a house on it; the property on the west side of the highway was known as the “batture property,” because it was bounded on the west by Bayou Grand Caillou. Boudreaux’s sister, Becky, had inherited from their father the property adjacent to and south of her brother’s lots on both sides of the highway. Becky was married to Authement at the time, and she transferred an undivided interest to him in order for this property to be co-owned. When they divorced, the community property settlement included a transfer of full ownership of Becky’s batture property to Authement. Therefore, in March 2001, when the events leading to this litigation’ occurred, Authement owned the batture property to the south of Boudreaux’s batture property and had a small business there; he was interested in buying Boudreaux’s batture property. However, due to the strained family relationships after his divorce from Becky, Authement doubted that Bou-dreaux would sell it to him.

Enter Mark Jeff. Jeff was acquainted with Authement and Boudreaux, and in early 2001, he learned that Authement was interested in Boudreaux’s batture property. In short order, Jeff became the “middle man” to buy the property from Bou-dreaux and then .sell it to Authement. Jeff learned that Boudreaux’s property was in foreclosure 13and that he was willing to sell it to him. On March 12, 2001, Boudreaux signed a letter to a law firm in Monroe, Louisiana, which was handling the foreclosure of his property, and gave the letter to Jeff; it authorized Jeff “to pay off my home mortgage of $34,000. To releave [sic] me of that debt.” Jeff and Authement made two trips to the foreclosing attorneys’ offices in Monroe to find out the exact mortgage balance and try to pay it. At some point, Jeff contacted Elizabeth Hays, a notary public who worked in á Houma law office, to prepare the sale documents.

The documents in the record include the following: (1) a bill of sale dated March 26, 2001, transferring ownership of all of Bou-dreaux’s property to Jeff for a purchase price of $39,498.53, which was signed by Boudreaux, Jeff, and two witnesses, was notarized by Hays, and was recorded in the parish conveyance records on March 30, 2001; (2) a second bill of sale for the same property dated March 27, 2001, transferring ownership of all the property from Jeff to Authement for the amount of $39,498.53, which was signed by Jeff, Authement, and two witnesses, was notarized by Hays, and was recorded in the parish conveyance records on April 2, 2001; (3) an unrecorded bill of sale from Jeff to Authement dated March 27, 2001, which had a sale price for the same property of $84,498.53, had the signatures of Jeff, Authement, and two witnesses, and had the signature and notary seal of Hays; and (4) a demand promissory note from Jeff to Boudreaux in the amount of $45,000, dated March 30, 2001, which was signed by them and two witnesses and was notarized by Hays. The record also has a copy of a cashier’s check drawn by Authement on March 29, 2001, payable to the Monroe law firm in the amount of $39,486.88. A deposit slip shows this amount was re-deposited in Authement’s account on March 30th. There is also a copy of a wire transfer showing Bou-dreaux’s mortgage balance was paid off from Authement’s account on March 30, 2001, and a receipt showing Authement bought | homeowner’s insurance on April 2, 2001. The record also contains documentary evidence that Authement paid to or on behalf of Jeff various sums of money after these transactions took place — $450 on April 4th, $400 on April 28th, $200 on May 12th, and $200 on June 15th.

The parties disagree about virtually every aspect of the factual circumstances surrounding this transaction and its documentation. Boudreaux said he went to the law office to meet with Hays, whom Jeff had identified as his attorney, but Jeff did not show up, and Boudreaux was reluctant to sign any documents without him there. Boudreaux claimed Hays advised him the $39,498.53 document was just “to clear the title” on his property and get the mortgage paid off so he could sell it “with no strings attached.” He interpreted the phrase, “[t]he parties dispense with the Certificate of Mortgages” in that document as verifying what she had told him. Although the date on the document is March 26th, Boudreaux said he probably signed the $39,498.53 bill of sale on the 30th. He also said that before he signed it, Jeff showed him a cashier’s check to prove he had the funds to pay off the mortgage, but had his thumb over the remitter’s (Authement’s) name. Boudreaux said he and Jeff returned on Monday, April 2, to complete the transaction, at which time Jeff signed the $45,000 promissory note to him for the balance. Boudreaux said Hays told him he had to wait three days before he could collect on the promissory note, and he accepted that explanation of why he did not get the funds immediately. Bou-dreaux also testified that Hays prepared— and he and Jeff signed — a bill of sale showing the full purchase price of the property he sold to Jeff was $84,498.53. Boudreaux did not recall when they signed this document, and he believed it must have been “shredded” at Hays’ office, because it did not show up during the litigation. Boudreaux summarized the situation as follows:

I signed the paper for 84,000 something. Where that paper went, I don’t know. Okay? I was told that the $84,000 shows the sale of the house. After the mortgage is cleared for $39,000, they’ll subtract that 39,000 from the 84 plus and that gives me the 45. The promissory note was for the 45,000.

| Jeffs version of events is as follows. After discussing the Boudreaux property with Authement, Jeff agreed to be his “middle man” to buy both pieces for him. Jeff told Boudreaux he was interested in buying the house for his mother, when in fact he intended to sell it and the batture property to Authement. Jeff claimed Bou-dreaux told him the price for all the property was the mortgage payoff, plus $45,000 in equity for his home. Jeff said he went back across the street and gave this information to Authement. Eventually, Bou-dreaux gave him a letter to allow him to pay off the mortgage, and he and Authement made two trips to Monroe to try to accomplish this. At some point, Authement told Jeff, “get the house any way [you] can get it and ‘f-Artie.” ’ Authement said he was not going to pay Bou-dreaux the $45,000. But Authement also told Jeff he was going to mortgage the property and pay Jeff the $45,000 — at which point Jeff said he intended to pay it to Boudreaux. Jeff said every time he met with Authement before and after the sale, “on a daily basis,” he would ask him for money and Authement would give him several hundred dollars. Jeff made the arrangements with Hays, who worked at his attorney’s office, to perform the acts of sale. When he had Authement’s cashier’s check for the payoff balance, he showed it to Boudreaux and took him to Hays’ office. Jeff said Hays had prepared four documents — two bills of sale showing the sale amount as $39,498.53 and two bills of sale in the amount of $84,498.53, the full price. She explained the one with the lower amount was just for the mortgage payoff. He and Boudreaux executed the two sale documents with different amounts showing the property transfer from Boudreaux to Jeff. When Jeff and Authement later executed the two sale documents with different amounts showing the property transfer from Jeff to Authement, Jeff took the document showing the $84,498.53 sale price to be sure he could collect from Authement. Jeff said Hays “shredded” the bill of sale he and Boudreaux had signed showing the higher price, and he did not want the corresponding document between him and Authement to meet the | fisame fate. Several days later, he and Boudreaux went back to Hays and executed the $45,000 promissory note for the balance.

Authement testified that he wanted to buy only the batture property from Jeff, but they had never agreed on the price for which Jeff would sell it to him. Jeff did all the talking with Boudreaux, and Authement never knew what their deal was. However, Authement said he saw” the letter Jeff had from Boudreaux about paying off the mortgage, and believed that meant Boudreaux was agreeing to sell Jeff the property for the mortgage payoff, which “amazed” him. Authement said when he went to the law office to execute the sale of just the batture property, he understood that a sale of all of the property had already taken place between Boudreaux and Jeff. In fact, he said he was sitting in the reception area of the law firm while their transaction took place, and could overhear their discussion of the price as being the mortgage balance. Authement said he only agreed to buy the -entire property when Jeff told him, right before the sale to him, that Jeff could not come up with the money for the property. Authement said that on one of their trips to Monroe, he got a cashier’s check from his bank for the mortgage payoff and attempted to satisfy Boudreaux’s debt on the property, but the law firm would not handle the transaction that way. The mortgage payoff was ultimately accomplished after Authement got a second cashier’s check on March 29th and had the funds wire transferred to the mortgage company. Authement denied ever agreeing to pay an additional $45,000 for the property. He said he knew nothing about Jeffs promissory note to Boudreaux until Bou-dreaux brought it up in the subsequent eviction proceedings. Although he acknowledged that the bill of sale showing the higher price appeared to have his signature, Authement noted “it wasn’t attached to this page” showing the price. He could not recall signing it and claimed he never saw it until Jeff faxed it to him in July 2001. Authement admitted giving Jeff various sums of money before and after the sale, but said they were for odd jobs, some 17furnishings left at Bou-dreaux’s house, car expenses, and to bond him out of jail after some mishap. Authement claimed he also felt some obligation to Jeff, since Jeff was not making any profit on the sale of the house.

Hays said she knew Jeff, because he was a client of one of the attorneys in the firm; Jeff contacted her to document the transactions. However, Hays denies almost every aspect of Boudreaux’s and Jeffs account, except that they .signed the $39,498.53 bill of sale, which she prepared and notarized, and that they returned several days later for her to prepare and notarize a $45,000 promissory note from Jeff to Boudreaux, which she did. She said the only price she was ever told concerning the Boudreaux property was the mortgage payoff balance of $39,498.53, and she did not see any money change hands at any time. Hays also testified that the two $39,498.53 bills of sale were executed on the dates shown in her presence with the two witnesses present and witnessing the signatures. Hays said she gave both original $39,498.53 bills of sale to the buyers to record in the parish conveyance records, and believed they recorded the sales immediately after the documents were executed. She also prepared and notarized a second original $39,498.53 bill of sale from Jeff to Authement, which they said was needed to pay off the mortgage, and gave it to Authement. Although the unrecorded $84,498.53 bill of sale document from Jeff to Authement is in the same format and wording as that used by Hays for the recorded sales and contains what appear to be the signatures of Authement and Jeff, two witnesses, and Hays, along with the impression of her notary seal, Hays denied ever preparing, signing, or notarizing any document showing the higher sales price. She pointed out some differences in the font size on the $84,498.53 document, and denied that the signature on that document was hers. She also said she discovered on March 30th that her notary seal had disappeared, and she had to order a new one in early April. Hays stated that Jeff and Boudreaux told her the $45,000 promissory note, which was dated March 30th, involved an unrelated transaction between them concerning some other | ¿property. She said she was not in the office on April 2nd, when they claimed to have signed that note.

Just about the only uncontested facts in this case are that Jeff did not get $45,000 from Authement, and he did not pay Bou-dreaux what he owed on his promissory note. Boudreaux continued to live in the house, and Authement had him evicted. Boudreaux said he did not know until Authement had him evicted that Authement, rather than Jeff, owned the house. Authement confirmed that Boudreaux probably did not know about his purchase of the house from Jeff until the eviction suit.

On March 25, 2002, Boudreaux filed this lawsuit against Jeff, alleging that despite amicable demand, Jeff had not paid anything on the promissory note, which was payable on demand. Boudreaux also named Authement, Hays, and Rhonda Ta-bora as defendants, claiming they conspired with Jeff to fraudulently deprive him of the full price of his property. Jeff did not answer the lawsuit, and on February 3, 2003, a default judgment on the promissory note was confirmed and rendered against him in favor of Boudreaux for $45,000, plus legal interest from the date of the note until paid, plus 25% attorney fees and court costs. The fraud and conspiracy claim was tried, and on February 7, 2003, a judgment was signed, dismissing with prejudice Boudreaux’s claims against Hays and Tabora, but finding Authement conspired with Jeff to defraud Boudreaux, and was therefore solidarily liable with Jeff for the payment of $45,000 to Boudreaux, plus interest and costs. Authement has appealed this judgment.

APPLICABLE LAW

Standard of Review

The appellate court’s review of factual findings is governed by the manifest error — clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional |9inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Where factual findings are based on determinations regarding the credibility of witnesses, the trier of fact’s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Secret Cove, L.L.C. v. Thomas, 02-2498 (La.App. 1st Cir.11/7/03), 862 So.2d 1010, 1016, writ denied, 04-0447 (La.4/2/04), 869 So.2d 889. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Barham & Arceneaux v. Kozak, 02-2325 (La.App. 1st Cir.3/12/04), 874 So.2d 228, 240, writ denied, 04-0930 (La.6/4/04), 876 So.2d 87.

Fraud

Under that portion of the Louisiana Civil Code regarding conventional obligations or contracts, fraud is defined as a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction. LSA-C.C. art.1953; Hibernia Nat’l Bank v. Antonini, 37,836 (La.App. 2nd Cir.12/10/03), 862 So.2d 331, 335. Fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence. LSA-C.C. art.1957; McDonough Marine Serv., a Div. of Marmac Corp. v. Doucet, 95-2087 (La.App. 1st Cir.6/28/96), 694 So.2d 305, 309. Intent to defraud and loss or damage are two essential elements to constitute legal fraud. McDonough Marine Serv., 694 So.2d at 309. The trial court’s findings with respect to a claim of fraud are subject to the manifest error standard of review. Ballard’s, Inc. v. North American Land Dev. Corp., 28,437 (La.App. 2nd Cir.6/26/96), 677 So.2d 648, 651; Harmon v. Schamberger, 536 So.2d 579, 581 (La. App. 1st Cir.1988).

|inNot all fraud actions are contract claims. The well-recognized rule is that when a party has been damaged by the conduct of another arising out of a contractual relationship, the former may have two remedies, a suit in contract, or an action in tort, and may elect to recover his damages in either of the two actions. Bunge Corp. v. GATX Corp., 557 So.2d 1376, 1385 (La.1990). A party who is injured by fraud and deceit of another has a cause of action for damages. Deville v. Leonards, 457 So.2d 311, 313 (La.App. 3rd Cir.1984). Where fraud is alleged as the basis for relief, all persons who participated in the alleged fraud and those who are beneficiaries are proper parties to the suit. See LSA-C.C. arts. 2315 and 2324; Dohm v. O’Keefe, 458 So.2d 964, 965 (La.App. 4th Cir.), writ denied, 460 So.2d 1046 (La.1984); Pittman v. Piper, 542 So.2d 700, 702 (La.App. 4th Cir.1989).

Solidary Liability for Conspiracy I Intentional Act

He who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act. LSA-C.C. art. 2324(A). The actionable element in a claim under this Article is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which they actually commit in whole or in part. Ross v. Conoco, Inc., 02-0299 (La.10/15/02), 828 So.2d 546, 552. The purpose of solidary liability is to compel any tortfeasor to pay the entire judgment. Id. An obligation may be solidary though it derives from a different source for each obligor. LSA-C.C. art. 1797. The sources of the obligations are irrelevant so long as the obligors are obligated to repair the same damage. Rizer v. American Sur. & Fid. Ins. Co., 95-1200 (La.3/8/96), 669 So.2d 387, 389. An obligation is solidary among debtors when they are obliged to the same thing, so that each may be compelled for the whole, and when payment by one exonerates the other toward the creditor. Id. A failure to perform a solidary obligation through the fault of one obligor renders all the obligors solidarily liable for the resulting damages. LSA-C.C. art. 1800. Article 2324(A) imposes solidary liability only for compensatory damages. Ross, 828 So.2d at 552. One hundred percent solidarity is applicable to the intentional tortfeasors. Frazer v. St. Tammany Parish School Bd., 99-2017 (La.App. 1st Cir.12/22/00), 774 So.2d 1227, 1236 n. 6, writ denied, 01-0233 (La.3/23/01), 787 So.2d 1001; see also Veazey v. Elmwood Plantation Assoc., Inc., 93-2818 (La.11/30/94), 650 So.2d 712, 737 n. 8.

Article 2324(A) requires a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing. Evidence of such a conspiracy can be actual knowledge of both parties or overt actions with another, or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator. Stephens v. Bail Enforcement of La., 96-0809 (La.App. 1st Cir.2/14/97), 690 So.2d 124, 131, writ denied, 97-0585 (La.4/18/97), 692 So.2d 454. If a conspiracy is conceived and executed, and a private injury results, the one so injured has a right of action against all of the conspirators. Strahan v. State Through Dep’t of Agric. and Forestry, 93-0374 (La.App. 1st Cir.8/25/94), 645 So.2d 1162, 1165, writ denied, 95-0040 (La.2/17/95), 650 So.2d 256.

Authentic Act

An authentic act is a writing executed before a notary public in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. LSA-C.C. art. 1833. A transfer of immovable property must be made by authentic act or by act under private signature. LSA-C.C. art. 1839. Between two parties to an authentic act, parol evidence is admissible to show fraud, mistake, illegality, want or failure of consideration, or to explain an ambiguity when such explanation is not inconsistent with the written terms. See LSA-C.C. art. 1848; Scafidi v. Johnson, 420 So.2d 1113, 1115 (La.1982); Holliday v. Holliday, 00-0533 (La.App. 1st Cir.8/17/01), 795 So.2d 423, 428, amended on rehearing on other grounds, 00-0533 (La.App. 1st Cir.9/28/01), 797 So.2d 774.

DISCUSSION

This case is all about credibility — and the lack of it. From the oral reasons of the trial judge, it is clear that he listened carefully to the testimony of all the witnesses, examined the documentary evidence, compared the testimony to the documents, noted inconsistencies in the testimony and documents, and evaluated the believability of the circumstances described by the parties. Neither Bou-dreaux, Jeff, Authement, nor Hays was considered by the judge as totally believable. Yet, after considering all the 112evidence, he concluded, among other things, that: (1) Boudreaux intended to sell his property for the mortgage payoff, plus $45,000; (2) Boudreaux told Jeff this was the sale price, and Jeff told Authement this was the sale price; (3) Jeff intended to defraud Boudreaux of the $45,000; (4) Authement knew of Jeff’s intention and ultimately conspired with him to get Boudreaux’s property for just the mortgage payoff, using Jeff as the means of doing so; ■ and (5) therefore, Authement was solidarily liable with Jeff for the $45,000, plus legal interest.

In two of his assignments of error, Authement argues that the trial court manifestly erred and is legally incorrect for holding Authement liable to Boudreaux for contractual fraud when Boudreaux admitted the validity of the sale, did not ask for rescission, did not seek to vitiate his consent to -the contract, and sought only the recovery of the balance of the purchase price. However, we do not consider the trial judge’s references to the fraud articles in the Civil Code as implying that he found or imposed liability for contractual fraud in this case. See LSA-C.C. arts. 1953-1958. Rather, he correctly used those articles to clarify the evidentiary standard for proving fraud and to conclude that the damages for the fraud should not include attorney fees, since there was no rescission of the contract sought or awarded.

In this case, the trial court based Authement’s liability on Louisiana Civil Code article 2315, under which “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” When the action is performed intentionally, with the assistance of a co-conspirator, both persons are solidarily liable for the damage caused by their actions. LSA-C.C. art. 2324(A). We have painstakingly reviewed the record in this case, and we find no manifest error in the trial court’s conclusions concerning this transaction, most of which were based on credibility determinations that only he could make and to which we must give great deference. Moreover, we find no legal error in the trial court’s imposition of liability on Authement |iafor intentional, fraudulent conduct. As noted by the Louisiana Supreme Court, a person who has been damaged by the conduct of another arising out of a contractual relationship may have a suit in contract or an action in tort, and may elect to recover his damages in either of the two actions. Bunge Corp., 557 So.2d at 1383. The record provides ample support for the trial court’s conclusion that Authement and Jeff conspired to intentionally deprive Boudreaux of $45,000 of the purchase price for his property. As such, they are solidarily liable for that amount.

Authement contends that, since a default judgment on the promissory note had already been rendered in favor of Bou-dreaux and against Jeff for that amount, the judgment in this case is tantamount to double recovery. However, the trial court specifically stated that the judgment was solidary with the amount owed by Jeff on the note. The law is clear that an obligation may be solidary, even though it derives from a different source for each obligor. Since payment of the debt by one remits the debt of the other, there is no possibility of double recovery for Bou-dreaux.

With reference to the damages, Authement further contends that even if this court agrees that he is liable to Boudreaux for some amount, the trial court erred in imposing $45,000, because the value of the property was not properly established and the house had been “trashed” before Authement took possession of it. We find no merit in these arguments. Whether the house was worth $10 or $100,000, Authement contrived with Jeff to deprive Boudreaux of a portion of the price they knew he had placed on his property. That portion was $45,000. Therefore, this is a fair measure of the compensatory damages attributable to their actions.

CONCLUSION

Based on the foregoing, the judgment is affirmed. All costs of this appeal are assessed against Authement.

AFFIRMED.

      . Authement also got 20% of the proceeds from the sale of the house and property on the east side of the highway. Although appraised at one point for $180,000, Becky eventually sold it for about $100,000 and gave about $20,000 to Authement.

      . Initially, their discussions may have involved Authement’s purchase of just the bat-ture property, with Jeff claiming he wanted to buy the house for his mother. However, the final agreement and sale included all of Bou-dreaux's property on both sides of the highway.

      . Jeff and Boudreaux claim the purchase price was the mortgage balance plus equity of $45,000. Authement claims Jeff did not tell him about the $45,000, and he believed the purchase price was just the balance on the mortgage.

      . This amount apparently was the payoff balance on Boudreaux’s mortgage, including late fees and attorney fees incurred in the foreclosure proceedings.

      . The authenticity of this document is contested by Hays and Authement, who did not attest to their signatures on it. We find no error in the trial court's admitting this document into evidence based on Jeff's identification of it, and note that neither the trial court nor this court relied upon its authenticity.

      . The copies of the two cashier's checks involved in this transaction are dated March 28th and March 29th.

      . However, at another point in his testimony, Boudreaux said he thought he may have signed all the paper work on Monday, and reiterated that the promissory note was “at that time with her at the same time of signing those papers.”

      .Jeff’s cousin, Calvin Clay, was with Jeff on several occasions when he met with Authement. Clay said he heard Authement's comments to Jeff that he should get the property any way he could and "f-Artie.” He also confirmed that every time the two met, Authement gave Jeff money, and said Authement promised Jeff that if he helped him get the property, he would give Jeff $5,000 so he could buy an SUV. According to Clay, after this lawsuit was filed, he heard Authement offer Jeff $20,000 to “just disappear” and not testify at trial.

      . Jeff also said Hays signed the witnesses’ names on the sale documents from him to Authement.

      . However, Jeff clearly never had any money in the deal. The attempts to pay off Bou-dreaux’s mortgage always involved only Authement’s money, and always involved the full amount of the mortgage payoff. Authement claimed he had an unsecured loan from his bank — a line of credit — to build a new shop, and he was able to draw on those funds to büy the property on short notice.

      . We note, however, that a cursory comparison of those two recorded documents shows that the purported signature of a receptionist at the law firm who appears as a witness on both documents, Dawn Pellegrin, was written and even spelled differently on the two recorded bills of sale that Hays prepared and notarized.

      . Tabora was living with Authement when these transactions occurred. At the time of trial, she and Authement were living in the house purchased from Boudreaux, which they had renovated.

      . The oral reasons further noted that although there were inconsistencies in Hays' testimony and she was apparently negligent in preparing the transaction documents, there was insufficient evidence that she was involved in the conspiracy or intended to defraud Boudreaux. Therefore, the claims against her were dismissed. As there was no evidence that Tabora knew anything about the scheme, other than that Authement and Jeff were involved in buying the property from Boudreaux, the claims against her were also dismissed.

      . In addition, Jeff is liable for 25% attorney fees, in accordance with the judgment on the note.

      . Accordingly, we do not address Authement’s arguments about the admissibility of or weakness of the evidence concerning the value of Boudreaux’s property.


author: i «McClendon, j.

text:
    Robert H. SCHMOLKE and Robert H. Schmolke, A Professional Law Corporation v. James R. CLARY, Jr. and Clary Law Firm.
    No. 2003 CA 2107.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Rehearing Denied Nov. 9, 2004.
    Michael V. Clegg, Steven P. Lemoine, Baton Rouge, Counsel for Plaintiffs/Appel-lees Robert H. Schmolke, et al.
    Keith D. Jones, Baton Rouge, Counsel for Defendants/Appellants James Clary, Jr. and Clary Law Firm.
    Before: GUIDRY, GAIDRY,-and McClendon, jj.
   i «McClendon, j.

The issue raised on appeal in this action is whether the trial court erred in dismissing the defendants’ appeal for nonpayment of the appeal costs pursuant to LSA-C.C.P. art. 2126. For the following reasons, we affirm.

Robert H. Schmolke, individually and as Schmolke Professional Law Corporation, filed suit against James R. Clary, Jr. and Clary Law Firm, seeking damages for breach of contract. After trial on the merits, the trial court rendered judgment in favor of plaintiffs and against defendants in the sum of $116,150.00. On February 28, 2003, defendants filed a motion to nullify the judgment due to ill practices and a motion for suspensive appeal. The trial court set the motion for nullity for hearing, and granted the motion for appeal.

Defendants filed a motion for extension of time to pay appeal costs on April 8, 2003. The trial court granted the motion and extended the time to pay appeal costs to April 15, 2003.’ On April 16, 2003, defendants filed a second motion for extension of time to pay appeal costs. The trial court granted the motion and extended the time to pay appeal costs to June 27, 2003.

On July 14, 2003, plaintiffs filed a motion in the trial court. -Therein, they sought dismissal of the appeal for nonpayment of the appeal costs, and asked the trial court to strike defendants’ motion for nullity, contending that the motion for nullity improperly employed summary procedure. The trial court set a show cause on these issues for August 18, 2003. At the hearing, defendants withdrew their motion for nullity and requested that the trial court grant them an additional ten days within which to pay the appeal costs in accordance with LSA-C.C.P. art. 2126E. Thereafter, the trial court rendered judgment denying the motion for nullity as moot, denying the motion to strike as moot, and granting the motion to dismiss the appeal. Defendants appeal that judgment, asserting the trial court abused its discretion by dismissing the appeal rather than allowing them ten additional days within which to pay the appeal costs.

Louisiana Code of Civil Procedure article 2126 provides, in pertinent part:

I3A. The clerk of the trial court, immediately after the order of appeal has been granted, shall estimate the cost of the preparation of the record on appeal, including the fee of the court reporter for preparing the transcript and the filing fee required by the appellate court. The clerk shall send notices of the estimated costs by certified mail to the appellant and by first class mail to the appellee.
B. Within twenty days of the mailing of notice, the appellant shall pay the amount of the estimated costs to the clerk. The trial court may grant one extension of the period for paying the amount of the estimated costs for not more than an additional twenty days upon written motion showing good cause for the extension.
* * *
E. If the appellant fails to pay the estimated costs, or the difference between the estimated costs and the actual costs, within the time specified, the trial judge, on his own motion or upon motion by the clerk or by any party, and after a hearing, shall:
(1) Enter a formal order of dismissal on the grounds of abandonment; or
(2) Grant a ten day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.

In Pray v. First Nat’l Bank of Jefferson Parish, 93-3027, p. 1 (La.2/11/94), 634 So.2d 1163, 1163, the Louisiana Supreme Court explained the purpose of LSA-C.C.P. art. 2126E(1) as follows:

The primary purpose of La.Code Civ. Proc. art. 2126’s authorization to dismiss appeals for non-payment of costs is to dismiss the appeal as abandoned, in those cases in which the appellant files a timely appeal and thereafter decides not to pursue it. A secondary purpose is to ensure prompt payment of costs of appeal by dilatory appellants.

The record reflects that defendants had three periods during which to pay the costs of this appeal. The initial delay of twenty days as set forth in LSA-C.C.P. art. 2126B expired, and, on defendants’ motion, the trial court extended the period within which to pay the appeal costs to April 15, 2003. On April 16, 2003, defendants moved for an extension until June 27, 2003, and the trial court granted the second extension. However, defendants had not paid the costs at the time of the hearing on the motion to dismiss on August 18, 2003, approximately seven weeks after their second extension had expired. The trial |4court explained its decision to dismiss the appeal in its reasons for judgment, as follows:

I’ll be quite honest, I fully expected Mr. Clary’s position to be that he came in and, after the filing of the motion to dismiss the appeal, that the appropriate appellate costs had been paid, thereby mooting this issue.
Had prior extensions not been granted and this is the first time this is coming up, under (E)(2), the court would give you that 10-day extension, but I do agree with counsel for plaintiff. I think Mr. Clary has had, actually, three shots, the original period, the first extension granted by Judge Welch and a second extension granted by this court, to get the appeal costs filed.
Therefore, I am going to grant the motion to dismiss the appeal as abandoned under Code of Civil Procedure article 2126(E).

Defendants assert that the delay in paying the appeal costs was justified because they were pursuing a motion to nullify the judgment of the trial court. Specifically, defendants assert that, at all times, it was their “intention to appeal the trial court’s ruling, but only after an appropriate judgment had been confected between the parties. As the defendants never had an opportunity to address the improprieties in the judgment ultimately signed by the trial court, this threshold issue needed to be addressed before the appeal could be prosecuted or the attendant costs paid.”

We find no merit to this argument. Plaintiffs’ motion to strike defendants’ pleading asserting nullity of the judgment was filed on July 14, 2003 and was pending for more than one month before it was heard on August 18, 2003. Therein, plaintiffs urged that it was procedurally improper for defendants to file a motion for nullity in the present suit as such constituted an improper use of summary proceedings. Defendants did nothing until the hearing on August 18, 2003, when they conceded their defeat on the issue of nullity of judgment by voluntarily withdrawing the motion for nullity. Although defendants assert that they continually had good cause for failing to pay the appeal costs, their actions indicate otherwise. The withdrawal of the motion for nullity at the hearing shows definitively that defendants no longer had a good faith belief that their motion for nullity was viable. Yet, even with the knowledge that their motion was faulty, defendants sought a third extension rather than pay the appeal costs.

1 ^Considering the fact that the sole basis asserted for the failure to timely pay the appeal costs was the pending motion to annul, which was voluntarily withdrawn by the movers, it is clear that the trial court did not err in concluding that the inaction of defendants constituted a refusal or failure to pay without justification. Furthermore, considering the lack of good cause for the failure to pay as well as the two extensions granted by the trial court, we find that the trial court did not abuse its discretion in declining to grant a ten-day extension. Rather, the dismissal by the trial judge of defendants’ appeal was warranted and in compliance with the provisions of LSA-C.C.P. art. 2126. See Laborde v. Presbyterian Village of Homer, Louisiana, Inc., 32,639, p. 3 (La.App. 2 Cir. 1/26/00), 750 So.2d 1182, 1185 (wherein the dismissal of an appeal for failure to pay appeal costs after an extension to pay had expired was affirmed). Cf. Richards v. Everett, 509 So.2d 851, 852 (La.App. 4 Cir.1987) (affirming the trial court’s denial of a motion to dismiss where appellant paid appeal costs after the expiration of two thirty-day extensions and while motion to dismiss for nonpayment was pending before the trial court).

Finally, on August 16, 2004, just one month ago, plaintiffs filed a motion to dismiss this appeal on the ground that defendants failed to timely file a proper appeal bond. Without reaching the merits of this motion, we note that the defect alleged by plaintiffs is non-jurisdictional. Therefore, even if we determined that the motion had merit, we would simply maintain the appeal as a devolutive appeal. See LaHoste v. Toups, 510 So.2d 3 (La.App. 1 Cir.1987). Because we are affirming the trial court’s judgment dismissing this appeal, the issue of whether the appeal should be suspen-sive or devolutive is moot.

For the foregoing reasons, the motion to dismiss filed by the plaintiffs is denied, and the judgment of the trial court is affirmed. Costs are assessed against James R. Clary, Jr. and Clary Law Firm.

MOTION DENIED; JUDGMENT AFFIRMED.