author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Christopher Lane FRANCOIS, Sr.
    No. 05-1385.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      J. Phillip Haney, District Attorney, Jeffery J. Trosclair, Assistant District Attorney, St. Martinville, Louisiana for State of Louisiana.
    G. Paul Marx, Attorney at Law, Lafayette, Louisiana, for Defendant/Appellant, Christopher Lane Francois, Sr.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and GLENN B. GREMILLION, Judges.
   SULLIVAN, Judge.

hOn August 14, 2003, the State filed a bill of information charging Defendant, Christopher Lane Francois, Sr., with one count of attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, one count of aggravated battery, a violation of La.R.S. 14:34, and one count of second degree kidnapping, a violation of La.R.S. 14:44.1. A plea of not guilty was entered on November 12, 2003.

Upon motion of Defendant, a sanity commission was appointed on July 14, 2003. On December 15, 2003, the trial court found Defendant able to assist counsel and proceed to trial. On the same date, Defendant was rearraigned and entered a plea of not guilty. On January 30, 2004, the State filed a second bill of information charging Defendant with unlawful possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The record does not indicate Defendant was arraigned on this charge.

On November 29, 2004, the matter proceeded to trial on the charge of attempted second degree murder; a mistrial was granted on December 2, 2004. A second trial commenced on January 25, 2005, and the jury returned a verdict of guilty of attempted second degree murder on January 27, 2005. A Motion for New Trial was filed on February 22, 2005, which was denied. On March 1, 2005, Defendant was sentenced to forty-five years at hard labor without benefit of probation, parole, or suspension of sentence. Defense counsel orally moved for reconsideration of sentence; the motion was denied.

Defendant appealed; he assigns three errors: 1) the evidence supports a conviction for attempted manslaughter rather than attempted second degree murder; 2) the testimony of witness Randall Marshall should have been excluded because | ¡¡there was no proof that he was unavailable; and 3) the appellate record is incomplete and does not allow a determination of whether he was subjected to double jeopardy, denying him effective assistance of appellate counsel.

Facts

On June 7, 2003, Defendant entered Toshiba Vital’s place of employment, Food-N-Fun in New Iberia, where he shot at her and beat her with a gun. A more detailed account of the facts is set forth under “Sufficiency of the Evidence.”

Errors Patent

All appeals are reviewed for errors patent on the face of the record. Review of the record revealed two errors patent. The first error patent involves actions taken between the appointment of a sanity commission on July 14, 2003, and the trial court’s determination on December 15, 2003, that Defendant was capable of proceeding. According to La. Code Crim.P. art. 642, “[w]hen the question of the defendant’s mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.”

A number of “steps” were taken during the pendency of the commission, including Defendant’s arraignment, where he pled not guilty; the filing of several motions by Defendant; hearings on some of the motions filed by Defendant; and the filing of writ applications with this court which were addressed. The sanity commission panel members issued their findings that Defendant was capable of proceeding to trial on September 29, 2003 and October 23, 2003, and on December 15, 2003, the trial court found Defendant capable of proceeding to trial.

|RIn State v. Davis, 94-2332 (La.App. 1 Cir. 12/15/95), 666 So.2d 400, writ denied, 96-127 (La.4/19/96), 671 So.2d 925, the court determined that an arraignment and a pretrial conference being held during the pendency of a sanity commission were harmless errors because they occurred before the defendant pled guilty and because the defendant did not allege that he was prejudiced by the trial court’s failure to comply with the requirements of Article 642. In State v. Karam, 02-163 (LaApp. 3 Cir. 7/31/02), 834 So.2d 1003, this court concluded that motion hearings held during the pendency of a sanity commission were harmless error, as the hearings did not prejudice defendant. The court explained that the purpose of Article 642 is to insure that no action prejudicial to the defendant is taken while the sanity commission is pending.

Not all of the motions Defendant filed were resolved in his favor; however, they were pretrial in nature and were not prejudicial to him. Furthermore, Defendant does not allege that he was prejudiced by the occurrence of these “steps” during the pendency of the sanity commission. We find any error was harmless. See State v. Prudhomme, 99-2029 (LaApp. 3 Cir. 6/5/02), 819 So.2d 443, writ denied, 02-2073 (La.6/27/03), 847 So.2d 1251.

The second error patent is that the jury did not return a verdict on all of Defendant’s charged offenses. Louisiana Code of Criminal Procedure Article 819 provides: “If there is more than one count in an indictment, the jury must find a verdict as to each count, unless it cannot agree on a verdict as to a count.” Defendant was charged by bill of information with one count of attempted second degree murder, one count of aggravated battery, and one count of second degree kidnapping. By separate bill of information filed under the same docket number, he was charged |4with one count of possession of a firearm by a convicted felon. The State proceeded to trial on the attempted second degree murder charge only. There is no motion to sever in the record, and the St. Martin Parish Clerk of Court’s Office has submitted an affidavit, stating that the jury considered the charge of attempted second degree murder only. Accordingly, this matter is remanded for proper disposition of the aggravated battery, second degree kidnapping, and possession of a firearm by a convicted felon charges. State v. Hypolite, 04-1658 (La.App. 3 Cir. 6/1/05), 903 So.2d 1275.

Sufficiency of the Evidence

Defendant was convicted of attempted second degree murder. Second degree murder is “the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm.” La.R.S. 14:30.1(A)(1). Attempt is defined in La.R.S. 14:27(A), which provides:

Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

To convict Defendant of attempted second degree murder, the State had to prove beyond a reasonable doubt that he specifically intended to kill Ms. Vital and that he committed an “act for the purpose of and tending directly toward the accomplishing of’ that intent. La.R.S. 14:27(A); 14:30.1(A)(1). “Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La.R.S. 14:10(1). It may be “inferred from the defendant’s actions and the | ¡¡circumstances of the transaction.” State v. Brown, 03-897, p. 22 (La.4/12/05), 907 So.2d 1,18.

Defendant contends the verdict is based on insufficient evidence because he established provocation and heat of passion sufficient for attempted manslaughter and the State did not establish the offense of attempted second degree murder beyond a reasonable doubt. He urges that he was “led on” and “taken advantage of’ by Ms. Vital, who allowed him to spend large amounts of money on her for a cell phone and house repairs, then told him that she was going back to her ex-boyfriend. He claims he is guilty of attempted manslaughter rather than second degree murder.

Manslaughter is defined, in pertinent part, as a killing “committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection.” La.R.S. 14:31. “ ‘[S]ud-den passion’ and ‘heat of blood’ are not elements of the offense of manslaughter; rather, they are mitigatory factors in the nature of a defense which exhibit a degree of culpability less than that present when the homicide is committed without them.” State v. Lombard, 486 So.2d 106, 110 (La. 1986).

On appeal, we must examine the evidence “in the light most favorable to the prosecution.” State v. Captville, 448 So.2d 676, 678 (La.1984) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). If the evidence was “sufficient to convince a rational trier of fact” that all of the elements of attempted second degree murder were “proved beyond a reasonable doubt,” we cannot reverse the jury’s verdict. Id. The sufficiency of the evidence evaluation regarding the mitigatory factors of sudden passion or heat of blood is whether a rational trier of fact could have found that these factors were not proven beyond a preponderance of the ^evidence. The evidence must be viewed in the light most favorable to the prosecution and intent may be inferred from the circumstances and defendant’s conduct. Brown, 907 So.2d 1.

For two weeks prior to June 7, 2003, Defendant spent a lot of time with Ms. Vital. He felt they were dating and considered her his girlfriend, but Ms. Vital did not think of herself as Defendant’s girlfriend. During that time, the two went to dinner several times and, on one or two occasions, Ms. Vital’s daughters accompanied them; Ms. Vital went to a graduation party for Defendant’s son; Defendant loaned her money to purchase a cell phone and bought her some clothing; and he performed and paid for work on a house she was to rent. Defendant claims Ms. Vital suggested that he live with her in that home. Ms. Vital testified that she informed Defendant she did not intend to live with him, but he continued to work on the house. During this time, Ms. Vital spent most nights at the home of Defendant’s cousin, Crystal Francois. When Defendant was in town, he stayed at Ms. Francois’ home with Ms. Vital.

On June 7, 2003, Defendant called Ms. Vital’s cell phone, and her ex-boyfriend answered. During the afternoon, Ms. Vital spoke to Defendant again. She testified that Defendant told her she owed him money for the cell phone and, if he did not get it, he would kill her. Between 4:00 and 4:30 p.m., Defendant arrived at Ms. Francois’ residence, and Ms. Francois relayed messages between Defendant and Ms. Vital. During that time, Ms. Francois informed Ms. Vital that Defendant told her, if he did not get the cell phone back, he would kill Ms. Vital. Defendant denied threatening Ms. Vital while at Ms. Francois’ house. However, Ms. Francois testified that |7Pefendant stated, “there was going to be some trouble,” if Ms. Vital did not return the cell phone to him.

Ms. Vital called the St. Martinville Police Department because of Defendant’s remarks. Officer Charlotte Durand took a complaint from Ms. Vital at Ms. Francois’ residence. While taking the complaint, Officer Durand spoke to Defendant on Ms. Vital’s cell phone and informed him that she needed to speak to him. At approximately 5:45 p.m., Defendant went to the St. Martinville Police Department where Officer Durand explained the basis of Ms. Vital’s complaint. Officer Durand testified that Defendant said, “he wouldn’t go to jail for making a threat, it would be because he killed somebody.” Defendant did not recall making this statement.

Later, Defendant went to Ms. Vital’s place of employment, Food-N-Fun, armed with a gun. He testified that he wanted to talk to Ms. Vital about his money. He also testified that he always carried a gun. Defendant entered Food-N-Fun between 6:00 p.m. and 6:30 p.m.; Ms. Vital was on the telephone when he entered. She testified that Defendant warned the store’s customers, “if you don’t want to die, get the ... out.” He then told Ms. Vital, “Let’s go, ... Ride or die.” Immediately after these comments, he pulled a gun and pointed it at her. ■ She asked him to leave, but he did not. Ms. Vital testified that Defendant began firing his gun at her and that she was hit by one bullet.

After the bullet struck Ms. Vital, Defendant jumped the store counter, and the two engaged in a physical struggle. He then dragged her out of the store. Oncé outside, the gun no longer worked, and Defendant started beating her with it. During the struggle, Ms. Vital got the gun away from Defendant for a short time, but he | «began to stomp her and regained control of the gun. Finally, Ms. Vital escaped and ran to the Player’s Club, a casino located next door.

After thé incident, Ms. Vital was transported to the hospital. Medical records prepared by Dr. Alan Appley state that she had been pistol-whipped on the head and right face and was dragged across the asphalt. Dr. Appley was unsure of whether Ms. Vital was grazed by a bullet.

Defendant testified that he pulled a gun while Ms. Vital was on the phone because he thought she was speaking to the police. He also' testified that he made a comment indicating that customers should leave the store before he pulled the gun out and that the gun went off when he pulled it out. Defendant described what occurred next as follows: “Well, I came to hit Miss Vital. She grabbed my arm. When I grabbed her arm, she grabbed the gun. Then she had the gun. She took the gun from me.” Defendant testified that, once Ms.' Vital had the gun, she ran. The two made contact again, and Defendant testified that he started hitting her with his fist. He further testified that Ms. Vital dragged him into the parking.lot and that he got the gun back when she dropped it during their struggle. He testified that the gun went off again while they were in the parking lot. He denied chasing Ms.Vital when she ran into the Player’s Club, stating he “didn’t go as far as that door to the Player’s Club.” He then threw the gun into the dumpster. Defendant testified that he did not go to the Food-N-Fun with the specific intent to kill or harm Ms. Vital.

Ms. Vital’s description of what occurred on June 7, 2003, in the Food-N-Fun was substantiated by the testimony of Tyressa Wiltz, a Food-N-Fun patron in the store when Defendant entered; Kernell Gas-pard, Jr., an employee of the Player’s Club who watched a portion of the events that occurred on the monitor located in the Player’s |flClub; Joslyn Mitchell, also an employee of the Player’s Club; and Randall Marshall, who drove up to the Food-N-Fun during the altercation between Defendant and Ms. Vital. Mr. Marshall testified that Defendant approached him after Ms. Vital ran into the casino and asked him for a ride. He refused Defendant’s request. He testified that he noticed Defendant had a gun and that Defendant walked to the dumpster, threw something away, and left the. parking lot.

Corporal Michael Babineaux of the St. Martin Parish Sheriffs Office (SMPSO) observed Ms. Vital after her encounter with Defendant and saw that she was bleeding very heavily from several lacerations. He located a semi-automatic handgun in the dumpster at Food-N-Fun and testified that the clip was broken. He did not notice any spent casings in the parking lot.- Detective Mark Frederick of the SMPSO found a spent bullet by the cigarettes behind the counter at Food-N-Fun and a spent cartridge in the trash can behind the counter. He observed unfired rounds in the parking Ipt, but he could not recall whether he saw any spent rounds in the parking lot.

Marcus Guidry, Jr., former detective with SMPSO, observed Ms. Vital and testified that she was covered in blood and had a “long grazing wound that went from front to back” of her head and several bruises and cuts to her head. Ms. Vital told him that Defendant was the person responsible for her injuries. Guidry accompanied Detective Paula Smith of the St. Martinville Police Department to locate Defendant. Guidry testified that Defendant stated, “I f-ked up I shot her.” Once Defendant was arrested, he kept repeating the above phrase, and Guidry informed Defendant that Ms. Vital was okay. Defendant then stated, ‘You mean I didn’t kill the b — h?’ ” Guidry informed Defendant he had not killed Ms. Vital. Guidry testified that Defendant seemed agitated because he had not killed Ms. Vital. He further testified |inthat the cartridge casing and the jacket found inside Food-N-Fun were consistent with being fired from the gun found in the dumpster.

Detective Smith testified that Defendant called her at home on June 7, 2003, and told her that he had shot a girl at Food-N-Fun and wanted to turn himself in. She testified that upon learning from Gui-dry that Ms. Vital was not dead, Defendant said, “That m — er f-king b — h. I didn’t kill her,” and “That m — er-f-king b — h is still alive.”

Viewed in the light most favorable to the State, the jury could have found that the State proved beyond a reasonable doubt that Defendant had the specific intent to kill Ms. Vital and committed an act directly toward this object and that Defendant did not prove sudden passion or heat of blood beyond a preponderance of the evidence. Failing to return a cell phone and deceptively allowing someone to spend money on you is not sufficient provocation to deprive an average person of self-control and cool reflection. Even if it were, Defendant was aware that Ms. Vital would not return or pay for the cell phone and did not intend to live with him as early as 4:00 or 4:30 p.m. the day he attacked her. He spoke to police at 5:45 p.m., then went to Food-N-Fun between 6:00 and 6:30 p.m. Two to two and one-half hours elapsed between his initial conversation with Ms. Vital and his attack on her, which was more than sufficient time for him to regain his self-control and cool reflection. See State v. Allen, 94-1941 (La.App. 1 Cir. 11/9/95), 664 So.2d 1264, writ denied, 95-2946 (La.3/15/06), 669 So.2d 433, where ten to fifteen minutes between a fight and the defendant’s shooting into a crowd was found to be sufficient time for an average person’s blood to have cooled.

This assignment lacks merit.

| ^Availability of Witness

Defendant contends the trial court erred in allowing the State to use the transcribed testimony of Randall Marshall from his mistrial, arguing Mr. Marshall was not proven to be “unavailable” under the Code of Criminal Procedure. He urges the use of the transcribed testimony was a denial of his right to confront and cross-examine witnesses against him.

The statement of a witness is admissible under the Code of Evidence when a declar-ant “cannot or will not appear in court and testify to the substance of his statement made outside of court.” La.Code Evid. art. 804. A declarant is unavailable when he:

(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A de-clarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

Id.

A trial court’s determination that a witness is unavailable and that the witness’s testimony may be used are reviewed for manifest error and will not be reversed unless there is an abuse of discretion. State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089, cert. denied, 537 U.S. 864, 123 S.Ct. 260, 154 L.Ed.2d 107 (2002). The “use of prior testimony must not impinge on the defendant’s constitutional right to confront and cross-examine adverse witnesses, as guaranteed by the Sixth Amendment of the United States Constitution, Art. I, § 16 of the Louisiana Constitution, and La.Rev.Stat. § 15:273.” Id. at 1112. Before allowing the use of prior testimony, the trial court must determine: (1) the defendant was represented at the earlier hearing; (2) the witness testified under oath; (3) the witness was cross-examined or the defendant validly | -^waived the right to cross-examination; (4) the witness was “unavailable” to testify at the trial; and (5) the State made a good faith effort to locate the unavailable witness. Id.

The trial court ruled Mr. Marshall’s testimony was admissible, explaining:

[W]e also had a conference to discuss the unavailability of the State witness. I understand that Mr. Marshall is living out-of-state, he testified at the last trial under oath, attempts were made to reach him and subpoena him through various resources[;] he is completely unavailable.
And the State intends to read his testimony to the jury, the same testimony he gave at the last trial. I understand the Defense objects to that and the Court will over-rule the objection and find that the witness is unavailable, the witness did testify subject to cross-examination at the earlier trial, and his testimony will be admissible.

The trial court instructed the jury on Mr. Marshall’s absence from the trial:

[A] witness has been declared by the Court to be unavailable, having moved out of the state and lives in Tennessee. Service of process was attempted. All efforts were made to get him here to no avail. He did testify in a previous court hearing involving this same case under oath, subject to cross examination so I am going to allow his testimony to be read into the record by Mr. Huval.

The trial court did not set forth exactly what efforts were made to subpoena Mr. Marshall, and the record merely indicates that attempts were made to subpoena him through various resources. These efforts may fall short of the diligent and good faith efforts required to locate a witness.

A violation of a defendant’s right to confrontation has been held to be subject to a harmless error analysis. Id. An error is harmless if the guilty verdict was “surely unattributable” to it. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993); State v. Johnson, 94-1379 (La.11/27/95), 664 So.2d 94. There was more than sufficient evidence to convict Defendant without Mr. Marshall’s testimony. His 11stestimony was cumulative of the testimony of four other witnesses, who were present at the crime scene longer and witnessed more of Defendant’s actions than he did. Therefore, we conclude that the jury’s guilty verdict was “surely unattributable” to his testimony and any error in allowing Mr. Marshall’s prior testimony to be presented to the jury was harmless.

This assignment lacks merit.

Denial of Effective Assistance of Counsel

In his last assignment of error, Defendant contends the record is incomplete, and he is being denied effective assistance of appellate counsel because the record does not include the transcript of his prior mistrial; therefore, his counsel is prevented from making a determination as to whether there was a double jeopardy bar to retrial or other issues related to that disposition.

The minutes of this matter indicate that on December 2, 2004, after resting the presentation of Defendant’s defense, defense counsel moved for a mistrial which the trial court granted. The second trial in this matter was held January 25-27, 2005. Defense counsel was the same in both trials.

The Fifth Amendment to the United States Constitution and Article 1, § 15 of the Louisiana Constitution of 1974 prohibit placing a person twice in jeopardy of life or limb for the same offense. La. Code Crim.P. art. 591. Double jeopardy protects an accused not only from a second prosecution for the same offense but also multiple punishments for the same criminal act. State v. Murray, 00-1258 (La.9/18/01), 799 So.2d 453.

Defendant alleges that material omissions in the record require reversal of his conviction, citing State v. Robinson, 387 So.2d 1143 (La.1980). In Robinson, the 1 udefendant’s conviction was reversed because the court reporter was unable to provide the testimony of two expert witnesses whose testimony bore on whether or not the crime at issue had occurred. There is no evidence that that is the case here. The transcript of Defendant’s mistrial is not included in this record because a transcript of the mistrial was never requested by trial or appellate counsel and no designation of record was filed as required by La.Code Crim.P. art. 914.1.

In United States v. Scott, 437 U.S. 82, 93, 98 S.Ct. 2187, 2195, 57 L.Ed.2d 65 (1978), the Supreme Court held that “the Double Jeopardy Clause is not offended by a second prosecution” after a defendant’s successful motion for a mistrial. Prosecu-torial action intended to provoke a mistrial request is an exception to this rule. Id. Trial counsel did not request a transcript of the mistrial before the second trial, indicating counsel did not consider prose-cutorial misconduct or double jeopardy to be an issue herein.

Louisiana Constitution Article 1, § 19 provides, in pertinent part: “No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based.” Article 843 of the Louisiana Code of Criminal Procedure requires that all proceedings in felony cases be recorded, “including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.” If the appellate record includes a complete transcript of the evidentiary portion of the trial, an appellant’s right to judicial review of all evidence is not compromised. State v. Williams, 98-1947 (La. App. 4 Cir. 8/23/00), 769 So.2d 629.

Trial counsel and appellate counsel had the opportunity to, but did not, obtain a transcript of Defendant’s mistrial. Defendant has been given the right to judicial | ^review of the trial in which he was convicted of attempted second degree murder as mandated by La. Const, art. 1, § 19.

This assignment of error is without merit.

Disposition

Defendant’s conviction is affirmed. The case is remanded for a proper disposition of the charges of aggravated battery, second degree kidnapping, and possession of a firearm by a convicted felon.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

      . Defendant did not proceed to trial on the remaining charges.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Darrel Wayne MEARS v. COMMERCIAL GENERAL LIABILITY INSURER of/and Global Industries Offshore, LLC.
    No. 05-1353.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    James Buckner Doyle, Attorney at Law, Lake Charles, LA, for Defendant-Appel-lee, Clarendon Insurance Company.
    Michael Joseph Juneau, Juneau Law Firm, Lafayette, LA, for Defendants-Ap-pellees Lexington Insurance Company C & G Welding, Inc.
    Robert Michael Kallam, Preis, Kraft, & Roy, Lafayette, LA, for DefendanL-Appel-lant, Global Industries Offshore, LLC.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

liThe appellant, Global Industries Offshore, LLC (Global), appeals a judgment of the trial court finding that C & G Welding, Inc. (C & G), and its insurers, Lexington Insurance Company (Lexington) and Clarendon America Insurance Company (Clarendon), are not required to defend, indemnify or insure Global in this suit by an employee of C & G against Global.

STATEMENT OF THE CASE

Darrell Wayne Mears was an employee of C & G when he was injured in the course and scope of his employment. At the time Mr. Mears was injured, he was working off the coast of Louisiana pursuant to a Marine Master Service Contract between C & G and Global. The primary job Mr. Mears was working on as a welder was the construction of an offshore structure. While being transferred from the DLB Cherokee, a navigable vessel, by means of a crane and basket attached to the DLB Cherokee, to the scaffolding affixed to the offshore structure, Mr. Mears alleges the basket struck the leg of the structure under construction, causing injuries to his leg and back. As a result of his injuries, Mr. Mears sued Global.

Global filed a third party demand against C & G and its insurers, Lexington and Clarendon, alleging that, pursuant to the Marine Master Service Contract, C & G would defend, indemnify and hold Global harmless against the claims asserted by Mears. C & G and its insurers answered the third party demand by asserting that the contract was a non-maritime contract, thus, pursuant to the Louisiana Oilfield Indemnity Act (LOLA), La.R.S. 9:2780, the indemnity agreement in the Marine Master Service Contract was null and unenforceable. If, however, the contract was a maritime contract as asserted by Global, the Longshore and Harbor Worker’s | ¡¡Compensation Act (LHWCA), through the Outer Continental Shelf Lands Act (OCSLA), would apply, and the indemnity agreement would be enforceable.

Both Global and C & G and its insurers filed motions for summary judgment in the trial court seeking a determination of whether the contract was a maritime contract or not. Following a hearing on July 19, 2005, the trial court found the contract was not a maritime contract and thus was subject to the LOIA. As a result, it granted the .motions for summary judgment filed by C & G, Lexington, and Clarendon. The trial court signed a judgment dismissing Global’s third-party demands against C & G, Lexington and Clarendon on July 25, 2005. It issued written reasons for its ruling on August 3, 2005. Global now appeals that judgment.

ASSIGNMENTS OF ERROR

Global asserts two assignments of error:

1. The trial-court committed manifest and legal error in finding the contract at issue to be non-maritime and in not performing the proper legal analysis to determine that the contract was maritime when the contract required the services of a vessel in navigation, required the workers providing welding services thereunder to be exposed to the perils of the sea, required these welders to be transported multiple times per day from a vessel to an offshore structure over navigable waters in a basket and/or gangway, required the workers be transported by the vessel en route to the jobsite and when the accident in question occurred in the Gulf of Mexico over navigable waters puportedly caused by an instrumentality (i.e., a crane) of the vessel.
2. The trial court erred in granting the summary judgment of C & G and its insurers by ruling that Global was not an additional assured under the Lexington Insurance Company and/or Clarendon America Insurance Company policies due to the fact that pursuant to the Longshore and Harbor Workers’ Compensation Act, which is applicable to this matter via the Outer Continental Shelf Lands Act, allows such enforceability and Louisiana’s Oilfield Indemnity Act should not be applied because it is inconsistent with this federal law, i.e., the Longshore and Harbor Workers’ Compensation Act.

\,DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

There are no genuine issues of fact in this case. The only issue is how to apply the relevant law to the facts. The issue before us is whether the contract between Global and C & G is a maritime or non-maritime contract. If the contract is maritime in nature, the defense and indemnification provisions in the contract are enforceable. If the contract is non-maritime, the defense and indemnification provisions are invalid pursuant to the LOIA. The Louisiana Oilfield Indemnity Act, La.R.S. 9:2780, states in pertinent part:

A.The legislature finds that an inequity is foisted on certain contractors and their employees by the defense or indemnity provisions, either or both, contained in some agreements pertaining to wells for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, to the extent those provisions apply to death or bodily injury to persons. It is the intent of the legislature by this Section to declare null and void and against public policy of the state of Louisiana any provision in any agreement which requires defense and/or indemnification, for death or bodily injury to persons, where there is negligence or fault (strict liability) on the part of the indemnitee, or an agent or employee of the indemnitee, or an independent contractor who is directly responsible to the indemnitee.
B. Any provision contained in, collateral to, or affecting an agreement pertaining to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, is void and unenforceable to the extent that it purports to or does provide for defense or indemnity, or either, to the indemnitee against loss or liability |4for damages arising out of or resulting from death or bodily injury to persons, which is caused by or results from the sole or concurrent negligence or fault (strict liability) of the indemnitee, or an agent, employee, or an independent contractor who is directly responsible to the indem-nitee.
C. The term “agreement,” as it pertains to a well for oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, as used in this Section, means any agreement or understanding, written or oral, concerning any operations related to the exploration, development, production, or transportation of oil, gas, or water, or drilling for minerals which occur in a solid, liquid, gaseous, or other state, including but not limited to drilling, deepening, reworking, repairing, improving, testing, treating, perforating, acidizing, logging, conditioning, altering, plugging, or otherwise rendering services in or in connection with any well drilled for the purpose of producing or excavating, constructing, improving, or otherwise rendering services in connection with any mine shaft, drift, or other structure intended for use in the exploration for or production of any mineral, or an agreement to perform any portion of any such work or services or any act collateral thereto, including the furnishing or rental of equipment, incidental transportation, and other goods and services furnished in connection with any such service or operation.
D. (1) The provisions of this Section do not affect the validity of any insurance contract, except as otherwise provided in this Section, or any benefit conferred by the workers’ compensation laws of this state, and do not deprive a full owner or usufructuary of a surface estate of the right to secure an indemnity from any lessee, operator, contractor, or other person conducting operations for the exploration or production of minerals on the owner’s land.
(2) Any language in this Section to the contrary notwithstanding, nothing in this Section shall affect the validity of an operating agreement or farmout agreement, as defined herein, to the extent that the operating agreement or farmout agreement purports to provide for defense or indemnity as defined in Subsection B of this Section. This exception shall not extend to any party who physically performs any activities pursuant to any agreement as defined in Subsection C of this Section. For purposes of this Subsection, operating agreement and farmout agreement shall be defined as follows:
(a) “Operating agreement” means any agreement entered into by or among the owners of mineral rights for the joint exploration, development, operation, or production of minerals.
|B(b) “Farmout agreement” means any agreement in which the holder of the operating rights to explore for and produce minerals, the “assignor”, agrees that it will, upon completion of the conditions of the agreement, assign to another, the “assignee”, all or a portion of a mineral lease or of the operating rights.
G. Any provision in any agreement arising out of the operations, services, or activities listed in Subsection C of this Section of the Louisiana Revised Statutes of 1950 which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this Section, shall be null and void and of no force and effect.
I. This Act shall apply to certain provisions contained in, collateral to or affecting agreements in connection with the activities listed in Subsection C which are designed to provide indemnity to the indemnitee for all work performed between the indemnitor and the indem-nitee in the future. This specifically includes what is commonly referred to in the oil industry as master or general service agreements or blanket contracts in whatever form and by whatever name. The provisions of this Act shall not apply to a contract providing indemnity to the indemnitee when such contract was executed before the effective date of this Act and which contract governs a specific terminable performance of a specific job. or activity listed in Subsection C.

This court, in Fontenot v. Southwestern Offshore Corp., 99-1559 (La.App. 3 Cir. 7/5/00), 771 So.2d 679, writ denied, 00-2346 (La.11/3/00), 773 So.2d 144, provides a thorough discussion on the determination of whether a contract is maritime or non-maritime. As this court in Fontenot correctly pointed out:

In Davis & Sons, Inc. v. Gulf Oil Corp., 919 F.2d 313, 316 (5 Cir.1990) (emphasis added), the United States Fifth Circuit adopted the following inquiry for determining whether a contract is maritime or not:
Determination of the nature of a contract depends in part on historical treatment in the jurisprudence and in part on a fact-specific inquiry. We consider six factors in characterizing the contract: 1) what does the specific work |fiorder in effect at the time of the injury provide? 2) what work did the crew assigned under the work order actually do? 3) was the crew assigned to work aboard a vessel in navigable waters; 4) to what extent did the work being done relate to the mission of the vessel? 5) what was the principal work of the injured worker? 6) what work was the injured worker actually doing at the time of injury?

Fontenot, 771 So.2d at 683.

To determine if the contract at issue is a maritime contract, we must apply the Davis factors to the facts of this case.

1.) What does the specific work order in effect at the time of the injury provide?

There is not a specific work order in the record. Mr. Mears’ job was to perform welding services on the fixed platform. He was transported to and from the platform on a basket attached to a crane on the barge on which he slept and ate while not working on the platform.

2.) What work did the crew assigned under the work order actually do?

Mr. Mears and his crew were welders who were engaged in attaching a caisson to a fixed platform.

3.) Was the crew assigned to work aboard a vessel in navigable waters?

The record suggests that there was some preparatory work done on the barge in order to move pieces of equipment from the barge to the platform. At times, if the seas were rough, they would do some work aboard the vessel if moving from the vessel to the platform was too dangerous. Primarily, though, the welding was done on the platform.

4.) To what extent did the work being done relate to the mission of the vessel?

|7The vessel was a place where the welding crew slept and ate and where materials and equipment for the construction of the platform were transported and stored. The actual work of welding was not related to the mission of the vessel.

5.) What was the principal work of the injured worker?

Mr. Mears was a welder.

6.) What work was the injured worker actually doing at the time of injury?

Mr. Mears was getting onto a basket attached to a crane from the fixed platform to be transported back to the barge.

Applying the Davis factors to our facts, we find this to be a non-maritime contract. The jurisprudence supports this conclusion.

Global argues that the fact that the navigable vessel was necessary for the work to be performed is an overriding factor which requires a finding that the contract is maritime. In fact, the relationship between the vessel’s mission and the contractual obligations of C & G is the determining factor. The mission of the vessel in this case was to provide quarters for the welders employed by C & G. The contract between C & G and Global was for C & G to provide welders to build an offshore platform. Mr. Mears did not actually work from the vessel. He worked on the offshore platform or the temporary scaffolding affixed to the platform. Though the vessel did provide the means for C & G’s employees to gain access to their work-site, their actual work did not further the mission of the vessel.

In Brennan v. Shell Offshore, Inc., 612 So.2d 929 (La.App. 4 Cir.), writ denied, 614 So.2d 1268 (La.1993), the court found that a contract in which a welder was required to weld jackets to a fixed platform was non-maritime even though the welding occurred from a jack-up barge.

|sIn Wagner v. McDermott, Inc., 899 F.Supp. 1551 (W.D.La.1994), affirmed, 79 F.3d 20 (5th Cir.1996), Wagner was an employee of Landry Enterprises. Landry Enterprises contracted with McDermott Enterprises to provide welding services for McDermott in the construction of a fixed offshore platform. Wagner slept and ate on a derrick barge adjacent to the fixed platform. He slipped and fell on the deck of the barge and sued McDermott. McDermott sought indemnity from Landry pursuant to the terms of the blanket services contract. The district court applied the Davis factors and determined the contract was non-maritime because it only touched incidentally on the barge. The Fifth Circuit affirmed the district court and adopted its reasoning. This case appears most analogous to our fact situation.

In the second assignment of error, Global asks this court to find that even if the LOIA is applicable and the defense and indemnity provisions of the contract are unenforceable, the obligation of C & G to name Global as an additional insured is enforceable. The LOIA clearly prohibits these additional insured requirements in section G, which states:

Any provision in any agreement arising out of the operations, services, or activities listed in Subsection C of this Section of the Louisiana Revised Statutes of 1950 which requires waivers of subrogation, additional named insured endorsements, or any other form of insurance protection which would frustrate or circumvent the prohibitions of this Section, shall be null and void and of no force and effect.

Global argues that this section is inconsistent with the LHWCA and should not be given effect. The United States Fifth Circuit has held that there is not a conflict in a similar situation and the LOIA applies. See Hodgen v. Forest Oil Corp., 87 F.3d 1512 (5th Cir.1996).

CONCLUSION

|flWe find the trial court’s determination that the contract at issue is non-maritime and therefore subject to the LOIA is correct. The indemnity agreement contained in the contract is, therefore, unenforceable. The judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant, Global Industries Offshore, LLC.

AFFIRMED.


author: EZELL, Judge.

text:
    EVERGREEN PRESBYTERIAN MINISTRIES v. Brenda WALLACE.
    No. WCA 05-1343.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.

      Charles V. Musso, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Plaintiff/Appellant Evergreen Presbyterian Ministries.
    Thomas E. Townsley, Attorney at Law, Lake Charles, LA, for Secondary Defendant/Appellant Brenda Wallace.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

hBoth parties appeal the judgment of the workers’ compensation judge (WCJ). The employer, Evergreen Presbyterian Ministries, appeals the WCJ’s determination that Brenda Wallace is entitled to supplemental earnings benefits at a zero earning capacity. Ms. Wallace appeals several issues, including the fact that the WCJ ruled that she was not temporarily and totally disabled or totally and permanently disabled. She also appeals the WCJ’s decision to sever the issue of improper payment of medical bills and her failure to address whether she was entitled to sympathetic therapy or penalties and attorney fees. Finding that there are issues to still be decided by the WCJ, we hold that the appeal is premature and remand the case for further proceedings.

FACTS

Ms. Wallace was injured on May 9, 1996, while employed by Evergreen. At the time of the accident, Mrs. Wallace was entering a door while another employee was coming through the door from the opposite direction. Mrs. Wallace put her right hand up to keep the door from hitting her, and the force of the door injured her right hand and arm.

Evergreen referred Mrs. Wallace to a number of doctors over the years. Following the accident, Mrs. Wallace continued to complain of pain in her right hand and arm, so Evergreen initially sent her to Dr. Nathan Cohen, an orthopedic surgeon. Dr. Cohen was unsure of the etiology of Mrs. Wallace’s symptoms and opined that in time they would subside.

Mrs. Wallace saw another orthopedic surgeon, Dr. William Foster, on two occasions in 1996. He requested EMG studies from Dr. Fayez Shamieh, a neurologist. The studies indicated mild right carpal tunnel syndrome. Dr. Foster also believed that Mrs. Wallace may have reflex sympathetic dystrophy (RSD). Dr. Foster preferred her to Dr. Kevin Gorin, a physical medicine and rehabilitation specialist, for pain management. Additionally, Dr. Foster referred Mrs. Wallace to Dr. James Dowd, a plastic surgeon, for carpal tunnel surgery. Mrs. Wallace indicated to Dr. Foster that Dr. Dowd refused to perform the carpal tunnel surgery because he thought it might make the RSD symptoms worse.

Dr. Gorin continued treating Mrs. Wallace through December 19, 1996. He performed several nerve blocks which gave her relief for several days, but symptoms reappeared. During this time she did not work from September 11, 1996 until December 2,1996.

On January 23, 1997, Mrs. Wallace was seen by yet another orthopedic surgeon, Dr. Gregory Gidman, for an independent medical examination. His overall impression was that Mrs. Wallace did not have carpal tunnel but that she may have RSD. He noted that it was a very complicated case and that she was a very straightforward examinee. On his February 12, 1997 examination, Dr. Gidman observed the right hand was much cooler than the left hand. He suggested a series of stellate ganglion blocks to determine if she had RSD. He referred her to Dr. Gilmore to determine whether she had a vascular problem. At that time he recommended that she not work.

It was Dr. Charles Norris, a vascular surgeon, that eventually did examine Mrs. Wallace for a possible vascular problem. He opined that it was RSD and scheduled her for a stellate ganglion block. After three injections, Mrs. Wallace reported that her symptoms were worse. Dr. Gid-man was certain at this point that Mrs. Wallace was suffering with RSD.

On referral from Dr. Gidman, Mrs. Wallace also saw Dr. James Domingue, a neurologist, in July 1997. At that time she complained of neck pain radiating through lathe entire right arm in addition to swelling, coldness, blueness, and weakness of the right arm. He also believed she suffered from RSD and recommended a functional capacity evaluation and a return to work within her limitations.

Dr. Edgar Feinberg evaluated Mrs. Wallace on January 14, 1998, for pain. He also opined that Mrs. Wallace may have RSD.

As of May 20, 1998, Dr. Gidman opined that Mrs. Wallace had reached maximum medical improvement. He noted that she had seen a number of different pain specialists and had numerous stellate ganglion injections which never gave her much relief.

Dr. Frank Lopez saw Mrs. Wallace on September 3, 1998, at the request of F.A. Richard & Associates, the administrator of Evergreen’s claims. Dr. Lopez is a physician specializing in physical medicine and rehabilitation with a special interest in pain management. He explained that RSD is inconsistent in its presentation and its course; usually there are quite a few people involved in the evaluation and treatment; and there are usually different opinions as to the severity and the actual treatment that would be most adequate. He further stated that the only tool to diagnose RSD is clinical evaluation. He explained that there are variable features in RSD that are not all present at the same time in any particular patient.

Regarding Mrs. Wallace’s condition, Dr. Lopez testified that Mrs. Wallace has varied quite a bit on the presentation of symptoms since he has known her. At the time of trial, he had been treating her for the past seven years and was highly confident she has RSD. He opined that the right leg and foot problems she is now experiencing is associated with the RSD.

Dr. Lopez recommended that Mrs. Wallace return to some type of gainful employment if possible but also testified that pain is what prevents her from working |4on a regular basis. He did recommend sympathetic therapy, or STS therapy. He explained that it is not a magical cure but does reduce some of the pain and gives the patient some relief with a decrease in medication usage. He stated that the ability to work would depend on what kind of change occurs with STS therapy.

F.A. Richard sought a medical opinion from an additional physical medicine rehabilitation specialist, Dr. Wayne T. Linde-mann, who saw Mrs. Wallace on August 27, 2002. Dr. Lindemann had previously examined Mrs. Wallace on April 4, 1999, at which time he opined she was at maximum medical improvement and could return to work if vascular studies were unremarkable. As of the 2002 examination, Dr. Lin-demann stated that there was evidence of symptom magnification and opined that she was at maximum medical improvement. He recommended a functional capacity evaluation with a return to work based upon the results of the FCE. He did not recommend STS therapy and continued to feel that she was at maximum medical improvement.

Dr. Gerald Nickerson, also a physical medicine and rehabilitation specialist, performed an independent medical examination of Mrs. Wallace on January 29, 2003, at the request of the Office of Workers’ Compensation. He concluded that the subjective complaints were not consistent with the objective findings and that symptom magnification behavior was evident. He also opined that she had reached maximum medical improvement.

On March 18, 2003, Mrs. Wallace had a functional capacity evaluation at New Day Rehabilitation. The evaluation indicated that Mrs. Wallace demonstrated the ability to at least perform occasional sedentary lifting and that she should be able to return to some form of gainful occupation at that level. However, the report also indicated that her true maximal functional abilities are unknown because of her | ¡Jesting results in unreliable data.

Karen Herron, a vocational rehabilitation counselor with F.A. Richard, was given Mrs. Wallace’s file to find job leads in May 2003. In June 2003, Ms. Herron asked for Dr. Lopez’s approval of positions of billing office clerk, collector, and receptionist for Mrs. Wallace. He did not approve any of these jobs. In November 2003, Ms. Herron found two jobs: (1) a bill and account collector; and (2) general board operator. Dr. Lopez refused to approve either job.

On March 4, 2004, Ms. Herron sent a letter to Mrs. Wallace notifying her of two job openings at Harrah’s Casino. One was for a surveillance trainee and the other was for a monitor position. While Dr. Lopez was never given the opportunity to evaluate these jobs, Dr. Nickerson approved the surveillance trainee position. Mrs. Wallace testified that she did go check the job openings but she never got an offer.

Mrs. Wallace received compensation from the date of injury in the amount of $217.33 a week. On October 14, 2003, Evergreen and F.A. Richard filed a disputed claim for compensation disputing Mrs. Wallace’s disability status. On May 19, 2004, her disability benefits were reduced to $61.34 a week based on a supplemental earnings benefits status. On July 2, 2004, Mrs. Wallace filed a reconventional demand. A trial was held on March 24, 2005. Judgment was signed on July 7, 2005.

The WCJ ruled that Mrs. Wallace was entitled to supplemental earnings benefits at zero earnings. The court also severed an issue of penalties and attorney fees that arose during the trial concerning payment of Dr. Lopez’s bills below the fee schedule. Both parties appealed the judgment.

PENALTIES AND ATTORNEY FEES

One of the issues raised by Mrs. Wallace is the fact that the WCJ severed the issue of penalties and attorney fees regarding payment of Dr. Lopez’s bill to be | ^decided at a later time. Mrs. Wallace asks that we consider the issue and rule on it at this time.

In Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64, the supreme court affirmed a ruling by this court that an appeal in a workers’ compensation matter was premature and that appeals from partial final judgments pursuant to La. Code Civ.P. art. 1915 were not applicable in workers’ compensation cases. In making this decision the supreme court looked to La.R.S. 23:1810.5 which provides, in pertinent part:

A. (1) Insofar as may be possible, all the evidence pertaining to each case, except as to noneontested matters, shall be heard by the workers’ compensation judge initially assigned to the case. Upon the completion of such hearing or hearings, the workers’ compensation judge shall make such order, decision, or award as is proper, just, and equitable in the matter.
(2) Either party feeling aggrieved by such order, decision, or award shall, after receipt by certified mail of the order, decision, or award, have the right to take an appeal to the circuit court of appeal for the judicial district elected by the claimant upon the filing of the petition. The motion and order for appeal shall be filed with the district office assigned to handle the claim, which shall be responsible for preparation of the record for the appellate court.

The supreme court relied on its previous decision in Smith v. UNR Home Products, 614 So.2d 54 (La.1993), which relied upon La.R.S. 23:1310.5 in finding an appeal premature. The Smith court stated that the statute:

[Contemplates an appeal from a final decision by the hearing officer upon completion of the required evidentiary hearing or hearings. Piecemeal appeals go counter to the new worker’s compensation procedures which are designed to allow the hearing officer to “decide the merits of the controversy as equitably, summarily and simply as may be.” LSA-R.S. 23:1317(A). The new procedures are designed to speed up the adjudicative process, not to prolong and complicate it by partial judgments and multiple appeals.

Id. at 54-5.

|7The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers’ compensation case. The judgment of the Office of Workers’ Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03), 859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Accordingly, the appeal is dismissed. This matter is remanded to the Office of Workers’ Compensation for a hearing on the remaining issues presented by this claim. Costs of this appeal are to be divided equally between the parties.

APPEAL DISMISSED AND CASE REMANDED.


author: DECUIR, Judge.

text:
    WEST LOUISIANA HEALTH SERVICES, INC. d/b/a Beauregard Memorial Hospital v. Dan BUTLER, M.D.
    No. 05-1326.
    Court of Appeal of Louisiana, Third Circuit.
    April 5, 2006.
    Michael R. Garber, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Dan Butler, M.D.
    H.O. Lestage, III, Hall, Lestage & Lan-dreneau, DeRidder, LA, for Plaintiffs/Ap-pellees, West Louisiana Health Services, Inc., Beauregard Memorial Hospital, West Louisiana Health Services, Inc.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
   DECUIR, Judge.

11 West Louisiana Health Services, Inc., d/b/a Beauregard Memorial Hospital, brought this action against Dan Butler, M.D., seeking confirmation of an arbitration award which stemmed from a contractual dispute between the parties. Dr. Butler responded by filing an exception of no right of action and an answer and cross claim seeking enforcement of the contract via mediation. The trial court overruled Butler’s exception and denied his cross claim. Purporting to confirm the arbitration award, the trial court then rendered a money judgment in favor of the hospital. We reverse and render a declaratory judgment confirming the arbitration award.

FACTS

This dispute arose from the hospital’s efforts to attract a specialist in the field of orthopedics to set up a medical practice in rural Beauregard Parish. The parties ultimately entered into a contract, entitled Physician Assistance Agreement, whereby Dr. Butler agreed to establish a practice in the area for a period of at least two years, and the hospital guaranteed him an annual income of at least $300,000.00. The contract specified that if, on a monthly basis, Dr. Butler’s net income, after the deduction of professional expenses, was less than the guaranteed amount, the hospital would pay the difference to him. However, any amount paid in excess of the guaranteed amount over the full contract period was required to be repaid by Butler. A provision was included for the forgiveness of any indebtedness should Butler ^decide to remain practicing in Beauregard Parish after the expiration of the contract term. The contract also provided that any disputes concerning the reasonableness of professional expenses would be submitted to arbitration, and other disputes would be resolved through mediation.

|3At the end of the contractual term, the hospital conducted an audit of the Butler account and determined he had improperly received credit for $154,103.08 in unreasonable or disallowed professional expenses. Butler disputed this conclusion, and the matter was submitted to an arbitration panel consisting of three accountants, as articulated in the contract. The panel found that of the disputed expenses, $54,304.01 were “deemed ‘allowable’ in accordance with the Physician’s Assistance Agreement,’’ and $99,799.07 were “owed by .Dr. Butler to Hospital.”

THE DISPUTE

Dr. Butler did not disagree with the factual conclusion reached by the panel of arbitrators in its determination of the reasonableness of certain professional expenses. He did not, therefore, petition the district court to vacate, modify, or correct the award in accordance with La.R.S. 9:4210 and 9:4211. Rather, he maintained his orthopedics practice in Beauregard Parish and anticipated that his debt to the hospital would be forgiven over time as long as he remained in the parish, as described in the Physician Assistance Agreement at Paragraph 4.4.1. Accordingly, Dr. Butler did not pay the $99,799.07 found to be owed to the hospital.

Conversely, the hospital interpreted the arbitration panel’s letter as an award of money and sought to collect it promptly in accordance with the Final Repayment provision of the contract, Paragraph 4.4. When Dr. Butler refused to pay in response to the hospital’s collection efforts, the hospital filed suit seeking to confirm the arbitration award and collect the money found to be owed. The trial court agreed with the hospital’s position, found Dr. Butler had lost his opportunity to contest the |4award by failing to request modification timely, and issued a money judgment against him.

DISCUSSION

We find manifest error in the judgment rendered by the trial court. Operation of the arbitrators’ award as a money judgment will necessarily take away the doctor’s rights under the contract to have the debt forgiven over time and resolve any further disputes by mediation. Further, the trial court’s judgment misinterprets the award of the arbitration panel, which panel was vested with authority only to determine the reasonableness of expenses. The trial court did not properly confirm the arbitration award by issuing a money judgment in the hospital’s favor. Rather, the trial court should have merely confirmed the factual conclusions of the panel regarding the reasonableness of expenses, i.e., that $99,799.07 in expenses claimed by Dr. Butler were unreasonable and that $54,304.01 in disputed expenses were reasonable. Beyond that determination, the contractual provisions must govern the rights and liabilities of the parties.

DECREE

We render a declaratory judgment confirming the findings of the arbitrators and reversing the money judgment rendered by the trial court. The dispute between the parties, if any remains, is subject to resolution pursuant to the terms of the contract. Costs of this appeal are assessed to West Louisiana Health Services, Inc., d/b/a Beauregard Memorial Hospital.

REVERSED AND RENDERED.

      . Paragraph 4.3.1 provides: "If Physician's net income for that month is less than the monthly pro-rata portion of the Guaranteed Amount, Hospital will pay the difference to the Physician within ten (10) days after receiving the records.”

      . Paragraph 4.3.2 provides: If Physician’s net income for that month is equal to or greater than the monthly pro-rata portion of the Guaranteed Amount, Hospital shall make no payment to Physician for that month. If Physician’s net income exceeds the monthly pro-rata portion of the Guaranteed Amount, Physician shall pay the excess to Hospital as repayment for any amounts that have already been advanced to him by Hospital. Said payment shall be made by Physician within ten (10) days after receiving notification from Hospital of the amounts due. If no advance from Hospital remains to be repaid by Physician, the excess balance shall be carried forward and included in Physician’s net income during the subsequent month.

      . Paragraph 4.4.1 provides:

        Forgiveness of Physician’s Indebtedness.

      At the end of the Agreement term, if Physician's net income is less than $300,000 in the final year of the contract period, and Physician has been subsidized over the twenty-four (24) month period, all outstanding subsidy amounts will be forgiven after Physician has practiced in the community for a continuous period of four years immediately following expiration of this Agreement. Said forgiveness shall be amortized over such three year period according to the following schedule: (i) at the end of year No. 1 following expiration of the Agreement, thirty-three and a third percent (33 1/3%) of the outstanding subsidized amounts shall be forgiven; (ii) at the end of year No. 2 following expiration of the Agreement, thirty-three and a third percent (33 1/3%) of the original outstanding subsidy amounts shall be forgiven; and (iii) at the end of year No. 3 following expiration of the Agreement, thirty-three and a third percent (33 1/3%) of the original outstanding subsidized amounts shall be forgiven.

      .Paragraph 4.2.2 provides:
      “Professional Expenses” shall include all expenses normally and reasonably associated with the operation of the medical Practice described herein and which are deductible for federal income tax purposes using the cash basis method of accounting. The following define some of those expenses: malpractice insurance, rent, depreciation (excluding Section 179 deduction), salaries, (Family members employed by Physician are limited to prevailing hourly rate in De-Ridder healthcare facilities.) car expense, insurance (health, disability, etc.), phones, office supplies, accounting, etc. Excluded are all contributions to retirement or deferred compensation plans on behalf of Physician and federal, state and local income taxes. Personal expenses unrelated to Physician's practice, gifts and donations made without the Hospital's prior approval are also excluded.

        Any disputes concerning reasonableness of professional expenses which cannot be resolved between Hospital and Physician shall be referred to an arbitration panel for resolution. The arbitration panel shall consist of an independent accountant for the Hospital and for the Physician and a third party selected by the two independent accountants. Decisions of the arbitration panel will be binding on both the Hospital and Physician, and arbitration costs shall be paid by Hospital.

      . Paragraph 8 provides:

        ATTORNEY’S FEES. In the event either party breaches this Agreement, and the other party retains an attorney to protect its or his rights resulting from such breach, the breaching party shall pay the costs (including reasonable attorney’s fees, up to, but not more than, 33 1/3 percent of damages awarded) incurred by the other party to protect its rights hereunder. It is agreed by both parties hereto that any disputes which cannot be resolved between Hospital and Physician shall be decided by mediation by a Louisiana attorney who is a member of Mediation Arbitration Professional Systems, Inc., to be selected by agreement between the parties, or in the event the parties fail to agree by the mediator whose name is drawn blindly by a person agreed upon by the parties from the names of not more than two such qualified mediators submitted by each party hereto. Decisions reached in mediation will be binding on both parties and litigation is contractually waived hereby by both parties.


author: GASKINS, J.

text:
    STATE of Louisiana, Appellee, v. Tyler CULVERHOUSE, Appellant.
    No. 40,773-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Snell & Robinson by Randall R. Robinson, Bossier City, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, William M. Altimus, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   GASKINS, J.

hThe defendant, Tyler Culverhouse, entered a Crosby plea to three counts of molestation of a juvenile. He was sentenced to concurrent terms of seven years at hard labor on each count. The court recommended that the defendant be evaluated for the Adult Sex Offender Treatment Program. The defendant now appeals. We affirm.

FACTS

On December 14, 2003, Bossier Parish deputies responding to a battery call from Elm Grove found the defendant covered in blood. He had been hit by a mother who believed he had committed oral sex acts with her young child. Detective Mark Ma-honey interviewed the defendant three days later while he was hospitalized at LSU Medical Center following a suicide attempt; the defendant admitted certain acts in a recorded statement. The defendant was charged with three counts of molestation of a juvenile. A motion to suppress his statement to Detective Maho-ney was filed. Both the detective and the defendant testified at the June 2004 hearing on the motion. The trial court denied the motion in October 2004.

On February 16, 2005, the defendant entered a guilty plea to all three counts with a 15-year sentencing cap. He reserved his right to appeal the trial court’s ruling on the motion to suppress. On July 5, 2005, the defendant was sentenced to seven years at hard labor on each count, to be served concurrently.

The defendant appealed. He argues that the trial court erred in failing to suppress his statement to the police.

JgMOTION TO SUPPRESS

The defense argues that the trial court erred in denying the motion to suppress the statement since the state failed to prove it was given freely and voluntarily. He argues that the defendant’s “health and mental state rendered him incapable of understanding his rights” and that he was coerced into giving his statement by being told it “would be to his benefit and that he would receive a lesser sentence.”

The state asserts that the detective’s testimony shows that the defendant’s rights were explained to him prior to the taking of the statement and that the defendant did not appear to be “mentally deficient.” The state also argues that on cross-examination the defendant admitted he was “alert and oriented and had clear and normal speech” when he gave his statement.

Law

La. C. Cr. P. art. 703 provides, in pertinent part:

A. A defendant adversely affected may move to suppress any evidence from use ■ at the trial on the merits on the ground that it was unconstitutionally obtained.
B. A defendant may move on any constitutional ground to suppress a confession or statement of any nature made by the defendant.
C. A motion filed under the provisions of this Article must be filed in accordance with Article 521, unless opportunity therefor did not exist or neither the defendant nor his counsel was aware of the existence of the evidence or the ground of the motion, or unless the failure to file the motion was otherwise excusable. The court in its discretion may permit the filing of a motion to suppress at any time before or during the trial.
D. On the trial of a motion to suppress filed under the provisions of this Article, the burden of proof is on the defendant to prove the ground of his motion, except that the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.
laE. (1) An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief. The state may file an answer to the motion. The defendant may testify in support of a motion to suppress without being subject to examination on other matters. The defendant’s testimony cannot be used by the state except for the purpose of attacking the credibility of the defendant’s testimony at the trial on the merits.

At a hearing on a motion to suppress a confession, the state bears the burden of proving beyond a reasonable doubt the free and voluntary nature of the confession. State v. Hills, 354 So.2d 186 (La.1977); State v. Roddy, 33,112 (La. App.2d Cir.4/7/00), 756 So.2d 1272, writ denied, 2000-1427 (La.5/11/01), 791 So.2d 1288.

The admissibility of a confession is a question for the trial judge, whose conclusions on the credibility and weight of testimony relating to the voluntariness of the statement should not be overturned on appeal unless they are not supported by the evidence. State v. Richardson, 33,272 (La.App.2d Cir.11/1/00), 779 So.2d 771, writ denied, 2000-3295 (La.10/26/01), 799 So.2d 1151. Great weight is placed upon the trial court’s factual determinations because of that court’s opportunity to observe witnesses and assess credibility. State v. Roddy, supra.

Before the state can introduce an inculpatory statement made in police custody, it bears the heavy burden of establishing that the defendant received a Miranda warning and that the statement was freely and voluntarily made, and not the product of promises, threats or duress. See State v. Johnson, 36,014 (La.App.2d Cir.6/12/02), 821 So.2d 652.

_[¿Discussion

The record shows that the defendant’s recorded statement was taken on December 17, 2003, while he was hospitalized. His trial counsel filed a motion to suppress the statement on “one or more of the following grounds” of violating his rights, involuntary waiver of his rights and failure to be provided counsel.

At the hearing on the motion to suppress, the state called Detective Mahoney as a witness. He testified that the defendant “was talking fine and making good sense” and there was no indication that his “mental faculties were off.” The detective stated that he advised the defendant of his rights and that the defendant signed the waiver of rights form that was placed into evidence. The state also introduced into evidence a portion of the taped statement and the defense successfully requested that the remainder of the statement be admitted into evidence.

Defense counsel called the defendant as a witness. On cross-examination, he admitted that he had signed the waiver of rights form and that he was alert and oriented. He also agreed that his “thought processes were organized” and that he was not having hallucinations or delusions. The defendant stated that the detective told him it would be “easier” if he confessed and that he was aware that the “whole thing was taped.”

The trial court allowed an uncertified copy of the defendant’s discharge summary to be placed into evidence for the purpose of comparing it to a certified copy if the trial counsel presented the certified copy within [¡Jive days. The record does not show that the certified copy was ever submitted to the court.

The trial judge took the matter under advisement in order to have an opportunity to listen to the entire taped interview. As the trial judge noted when he denied the motion in open court on October 20, 2004, the quality of the recording makes it difficult to understand parts of the conversation and, although the tape may not be usable at a jury trial, the detective’s testimony regarding what the defendant told him would be admissible.

The trial judge found that the defendant was given the “proper warning” before giving his statement and that the statement was free and voluntary. He specifically noted that the fact that the defendant was hospitalized and possibly taking medications did not make the statement inadmissible.

The trial court’s finding should not be disturbed. A review of the tape shows that the defendant was advised of and waived his rights and gave detailed and coherent answers during his session with the detective. Further, at the hearing to suppress the statement, the defendant was asked on direct examination to describe in his own words how he felt during the taking of his statement. His response was “I was pretty much- — -I was scared, but— because I didn’t know if they were going to take me to jail or not. And then I was also in a depressed and sad state.” The defendant also recalled that he had denied the allegations against him and that the detective had told him he might get a reduced sentence and some counseling.

1 fiThere is nothing in this record to indicate that the defendant was not aware of what was happening to him on the day he gave his statement or that he did not voluntarily speak to the detective after having been advised of his rights.

In State v. Johnson, supra, the trial court refused to suppress a statement given by a defendant who was questioned in the hospital after being shot by his armed robbery victim. This court affirmed, saying:

Moreover, the officers’ testimony supports the court’s conclusion that Johnson’s statement was otherwise freely and voluntarily given. Obviously, the court chose to accept the officers’ testimony that Johnson was coherent and not impaired by medication to the point he was unable to freely and voluntarily give a statement. The trial court’s conclusion on the credibility and weight of testimony relating to the voluntariness of a confession for the purpose of admissibility will not be overturned on appeal unless not supported by the evidence.
This assignment of error lacks merit.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: MOORE, J.

text:
    Reverend Clarence WILLS, Plaintiff-Appellant, v. NATIONAL AUTOMOTIVE INSURANCE and Dustin Webb, Defendant-Appellees.
    No. 41,034-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Reverend Clarence Wills, In Proper Person.

      Law Office of Ronald J. Miciotto by Cindy Carroll Steven Carby, for Appellees.
    Before GASKINS, MOORE and LOLLEY, JJ.
   MOORE, J.

hRev. Clarence Wills appeals a judgment disbursing settlement funds deposited into the registry of the court pursuant to a concursus proceeding invoked by National Automotive Insurance Company and its insured, Dustin Webb. The judgment is vacated and the case remanded.

Procedural Background

On January 24, 2003, Wills was driving his employer’s Dodge van on Interstate 20 in Shreveport when he was rear-ended by a GMC truck driven by Dustin Webb. Three days later, Wills consulted with Ronald J. Miciotto for legal representation. Miciotto accepted the case and his office sent some demand letters to Webb’s insurer, National Automotive, but Wills discharged him in a few months.

Wills filed the instant suit in proper person in Shreveport City Court in September 2003, alleging special damages of $3,711.23 (raised by amended petition to $4,406.37) and general damages, for a total claim of $7,500. National Automotive and Webb filed an answer asserting only general denials.

The record shows no further activity until February 2005 when trial was set for April 25, 2005. According to the court minutes, Wills appeared without counsel and was allowed to hold a pretrial conference with National Automotive’s counsel. After the conference, they advised the court they had reached a settlement for $5,700, with National Automotive and Webb to be dismissed with prejudice.

An order of dismissal was to be submitted, but on June 27 Wills filed a “motion to reset trial,” in essence a motion to enforce the oral settlement | agreement.

Three days later, National Automotive and Webb filed a motion for concursus, as Miciotto had advised them he placed an attorney fee lien on the settlement proceeds. They also alleged that Rehabilitation Concepts Plus, a health care provider, had notified them of its own medical lien on the proceeds. The court ordered the settlement funds, $5,700, to be placed in the court registry and “the parties asserting claims to the funds assert their claims contradictorily before the court.” The only parties served were Wills, Miciotto, Rehabilitation Concepts and National Automotive; only Miciotto filed an answer to the concursus. By an attached letter, he advised the court of six outstanding liens on the settlement. At a hearing on July 27, the court overruled Wills’s objection to placing the funds in the court registry.

On August 26, Wills filed a motion for release of funds. He alleged that Miciot-to’s fee of $500, as well as Rehabilitation Concepts’ fee of $2,188.00, were excessive. The court signed an order requiring all parties claiming money from the settlement to show cause on September 28. Only Miciotto and Rehabilitation Concepts’ attorney were served.

At the hearing on September 28, only Wills, in proper person, and Miciotto’s counsel were present. The transcript does not show that any evidence was introduced; however, the record includes an affidavit from Miciotto’s counsel claiming that he represented Wills from January 27 | 3through July 28, 2003, and that they were due attorney fees of $1,725.00. Most of the hearing was a colloquy between the court and Wills.

The court voiced its “personal opinion” that Wills wasted time and money, and refused to award him lost wages or mileage for attending court. Instead, after denying any reimbursement, the court stated that it would order “attorney’s fees to be paid and that the balance be remitted to you of this money that’s been paid on deposit.” Miciotto’s counsel was instructed to present an order to that effect. No mention was made of Rehabilitation Concepts or any other claimant.

Action of the City Court

The court ultimately signed a judgment to withdraw settlement funds from the registry of the court as follows:

1. Ronald Miciotto (including $316.47 reimbursement) $1,316.47
2. Rehabilitation Concepts Plus 2,188.00
3. Willis Knighton Medical Center 694.00
4. City of Shreveport EMS 412.00
5. Dharam Gurwara, M.D. 626.00
6. TriSpan Health Services 173.37
7. Clarence Wills 291.16

The court also issued a per curiam stating:

This is regrettable. Rev. Wills fired his attorney and settled this case on his own without regard to liens and expenses that would have been added to any settlement obtained by his attorney. The result is expenses have virtually exhausted the proceeds of the settlement he concluded.

Wills took the instant appeal. By pro se brief, he alleges that under the terms of the settlement, “the amount of $5,700.00 [was] to be paid to Reverend Clarence Wills in person.” He contends that Rehabilitation Concepts’ bill was excessive and that he received no treatment at all from | ,tDr. Gurwara, but he acknowledges the other claims.

Miciotto responds that under the contract of employment, he was entitled to one-third of the settlement, but that $1,000 plus costs was not an abuse of the court’s discretion. He also urges that his affidavit proved the services rendered and listed all medical liens. At oral argument, he conceded that aside from Rehabilitation Concepts, the record did not show that any other health care provider had been served with the concursus.

Discussion

The appellate court shall render judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The purpose of this article is to give appellate courts complete freedom to do justice on the record regardless of whether a particular legal point or theory was made, argued or passed upon by the court below. Official Revision Comment (a); Rachal v. Rachal, 35,074 (La.App. 2 Cir. 10/12/01), 795 So.2d 1286.

The concursus proceeding instituted by a casualty insurer is a special proceeding. The code of civil procedure provides the contradictory setting that allows two or more persons with conflicting claims to money to be required to assert their respective claims against each other. La. C.C.P. art. 4651, et seq.; Allstate Indemnity Co. v. Knighten, 30,012 (La.App. 2 Cir. 12/10/97), 705 So.2d 240. A casualty insurer that admits full liability for its policy proceeds and deposits those proceeds into the court registry may implead persons who have conflicting claims. | sLa. C.C.P. art. 4652. Each defendant in the concursus proceeding is considered as being both a plaintiff and defendant with respect to each other and to the insurer. La. C.C.P. art. 4645; Allstate Indemnity Co. v. Knighten, supra. Each defendant must prove its right to a portion of the proceeds. American Southern Home Ins. Co. v. Guidry, 93-720 (La.App. 3 Cir. 2/2/94), 631 So.2d 733.

Proper citation is the cornerstone of all actions, including eoncursus actions. La. C.C.P. art. 1201; Brigandi v. Egana, 01-176 (La.App. 5 Cir. 5/30/01), 788 So.2d 680. In the absence of evidence of proper citation and service of process informing the defendants of the claims against them, in strict compliance with the law, all subsequent proceedings are absolutely null and void. Peschier v. Peschier, 419 So.2d 923 (La.1982); Brigandi v. Egana, supra; Durr v. Audubon Ins. Co., 520 So.2d 972 (La.App. 3 Cir.), writ denied, 522 So.2d 561 (1987).

This record is patently inadequate to support the judgment rendered. Several entities who were never cited and served nonetheless received an award in the judgment. For this reason alone, we would vacate the judgment. Brigandi v. Egana, supra; Durr v. Audubon Ins. Co., supra. Moreover, these claimants were never even named as defendants or required to appear and assert their claims— another deficiency fatal to the judgment. Allstate Indemnity Co. v. Knighten, supra. In general, this record shows little or no compliance with the requirements for a valid eoncursus proceeding. As a result, the judgment is at best unreliable and at worst an absolute nullity. In light of these findings, the judgment will be vacated and the matter remanded to the city court for the court to order National Automotive to additionally implead all parties having a privilege under La. |f;R.S. 9:4751 et seq.

Conclusion

For the reasons expressed, the judgment is vacated and the matter remanded to the city court. Appellate costs are to be divided equally between all parties which, upon remand, receive a share of the eon-cursus proceeds.

JUDGMENT VACATED; MATTER REMANDED.

      . These included his own lien for attorney fees of $500.00 and out-of-pocket expenses of $316.47; Rehabilitation Concepts Plus, $2,188.00; Medicare, $173.37; Willis Knigh-ton Medical Center, $694.00; City of Shreveport EMS, $412.00; and Dr. Dharam Gur-wara, $625.00.


author: STEWART, J.

text:
    Alfonso RHONE, Plaintiff-Appellant v. Kelly WARD, Warden, et al, Defendants-Appellees.
    No. 39,701-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Alfonso Rhone, In Proper Person.
    Charles C. Foti, Jr., Attorney General, David G. Sanders, David A. Peterson, Sonia Mallett, Assistant Attorneys General, for Appellees Michael Rhodes, Kelly Ward and Charles C. Foti, Jr.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

h The Louisiana Supreme Court remanded this matter to us for reconsideration in light of Cheron v. LCS Correctional Services, Inc., 04-0703 (La.1/19/05), 891 So.2d 1250. At issue is the application of the automatic stay provision of the Prison Litigation Reform Act (“PLRA”) enacted by Act 89 of 2002 to Rhone’s civil suit for damages. For the reasons that follow, we find there was no improper retroactive application of the automatic stay and that application of the stay has not divested Rhone of vested rights as in Cheron, supra.

FACTS

In 1998, Alfonso Rhone, an inmate at David Wade Correctional Center, sought review in the 19th Judicial District Court of the denial of his claim for money damages by prison authorities under the Corrections Administrative Remedy Procedure (“CARP”). He claimed he suffered medical problems from exposure to contaminated water. Rhone’s motion to proceed in forma pauperis was granted as to the filing fee only in a judgment dated September 8, 1998. After review, Rhone’s claim was denied, and he appealed. Citing Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, the First Circuit Court of Appeal reversed and remanded the case for a trial de novo. See Rhone v. Ward, 2000-1774 (La.App. 1st Cir.11/9/01), 818 So.2d 26.

On April 18, 2002, Act 89 of the 1st Extraordinary Session of 2002 was enacted into law. Act 89 included an automatic stay on lawsuits by prisoners proceeding as paupers until payment of all court costs. La. R.S. 15:1186(B)(2)(a). After remand, Rhone’s suit was transferred to the 2nd | Judicial District Court. By judgment dated November 12, 2002, the trial court docketed the matter and granted Rhone pauper status ordering him to pay the initial filing fee plus all costs accruing after filing and ordering prison officials to forward monthly payments from the inmate’s account all apparently in accordance with La. R.S. 15:1186. The judgment did not refer to the automatic stay of La. R.S. 15:1186(B)(2)(a). On October 15, 2003, the defendants filed a motion to enforce the automatic stay. Defendants argued that costs incurred by Rhone after the effective date of Act 89 triggered the automatic stay. After a hearing on March 18, 2004, the trial court granted the automatic stay.

Rhone sued to have the automatic stay provision declared unconstitutional. The trial judge denied relief, and we affirmed the trial court’s judgment in Rhone v. Ward, 39,701 (La.App.2d Cir.5/11/05), 902 So.2d 1258, wherein we rejected Rhone’s claim of unconstitutionality. We also determined that the automatic stay is procedural and rejected Rhone’s claim of improper retroactive application. The Louisiana Supreme Court then granted Rhone’s application for review and remanded the matter for our consideration of the retroactivity issue in light of Cheron, supra. See Rhone v. Ward, 2005-1651 (La.1/13/06), 920 So.2d 217.

DISCUSSION

Our analysis of whether there is an improper retroactive application of the automatic stay in Rhone’s suit begins with a review of Cheron, supra. The retroactivity issue in Cheron involved application of procedural changes under Act 89 pertaining to the requirement that an inmate exhaust | Sadministrative remedies before filing a tort suit against prison officials. Cheron’s claim arose after Pope v. State, supra, declared CARP unconstitutional as applied to tort actions, but prior to the effective date of Act 89. As amended by Act 89, La. R.S. 15:1172 of CARP requires an inmate to initiate administrative remedies for delictual actions within 90 days of the date of injury or damage; failure to do so results in abandonment of the claim and dismissal with prejudice of any subsequent suit asserting such claim. More than 90 days had elapsed from the date of Cher-on’s injury to the effective date of Act 89. Because CARP had been declared unconstitutional as to tort suits prior to when Cheron’s claim arose, the supreme court concluded that there was no administrative remedy available to Cheron at the time he filed suit and that he was not required to use an unconstitutional administrative process. Although Act 89 created an administrative remedy for delictual actions, the remedy could not be applied retroactively to divest Cheron of a vested right. See Cheron, 2004-0703, p. 15 (La.1/19/05), 891 So.2d 1250,1259-1260. If the administrative remedy of Act 89 had been applied to Cheron, his claim would have been dismissed as more than the 90 day period had elapsed. The supreme court noted that as the legislature had not created a grace period, it would be inappropriate to create one by jurisprudence. Id.

The question before us is whether the reasoning and conclusion of Cheron, supra, are applicable when the automatic stay also enacted by Act 89 is enforced in a tort suit that arose prior to the effective date of the act. The supreme court has previously remanded two other cases for our | reconsideration of this issue in light of Cheron, supra. Both avoided directly addressing the effect of retroactive application of the automatic stay.

In Peterson v. Gildon, 40,328 (La.App.2d Cir.12/30/05), 917 So.2d 1284, we recognized that Cheron, supra, raises questions of constitutionality when the automatic stay is applied to a prisoner suit wherein the prisoner had been granted pauper status prior to the effective date of Act 89. However, we found that Peterson had three strikes disqualifying him from being allowed to proceed in his suit as a pauper. Moreover, Peterson had not filed for pauper status in either of his two actions until after the effective date of Act 89. Recognizing that the decision of whether to grant pauper status is based on the prisoner’s financial situation at the time the request is filed, we concluded that no retroactive application of the automatic stay had occurred.

In Vincent v. Creed, 38,120 (La.App.2d Cir.12/30/05), 917 So.2d 1289, we also concluded that there was no retroactive application of the automatic stay when the requests for pauper status by the prisoner occurred subsequent to the effective date of the automatic stay provisions. Vincent sought judicial review in the 19th Judicial District Court of the denial of his claim stemming from injuries allegedly incurred from exposure to a chemical substance. The matter was transferred to the 2nd Judicial District Court in December 2002 pursuant to an exception of improper venue. Vincent filed motions seeking pauper status on three occasions. The first two motions were granted subject to the automatic stay of La. R.S. |s15:1186(B)(2)(a); the third was denied because pauper status had already been granted. Vincent sought supervisory review alleging equal protection and due process violations. This court denied his writ application on the showing made, but the Louisiana Supreme Court ultimately granted Vincent’s writ and remanded to this court for consideration in light of Cheron, supra. On reconsideration, we concluded that no retroactive application of the automatic stay had occurred. The court explained:

Act 89 became effective on April 18, 2002, prior to all three of Vincent’s efforts to obtain pauper status from the district court without being subject to the automatic stay. Because a prisoner’s financial situation can change over time, the proper time for a court to assess that financial situation for purposes of determining whether or not to grant pauper status is the time at which the request for pauper status is filed. Because the requests for pauper status at issue herein were filed subsequent to the effective date of the automatic stay provisions in Act 89, no retrospective application of those provisions has occurred herein. Therefore, we need not address today the constitutional issues concerning retrospective application of the automatic stay provisions.

Vincent v. Creed, 38,120 at p. 3-4, 917 So.2d at 1292.

The basis of our holding in Vincent v. Creed, supra, was that the prisoner had filed for pauper status subsequent to the effective date of Act 89. Implicit in that holding is the relevant point that pauper status was granted subsequent to the effective date of Act 89. The record now before us shows that Rhone filed a motion for pauper status in the 19th JDC on September 1, 1998, prior to the effective date of Act 89. However, after his case was transferred to the 2nd JDC, the trial judge granted Rhone pauper status in that court by judgment dated November 12, 2002, after the effective date of Act 89. Although La. R.S. 15:1186(B)(2)(a) provides that the order granting a prisoner pauper status “automatically stays all [ ^proceedings” until payment of all costs of court or fees, the automatic stay was not enforced until the defendants’ request for enforcement was granted on March 18, 2004.

The trial judge of the Second JDC recognized that Rhone had been granted pauper status in the Nineteenth JDC, but concluded that the authority to proceed as a pauper was “subject to the rules of the Second Judicial District Court.” Financial situations are subject to change, and while our law provides that a litigant should file for authority to proceed as a pauper in his first pleading, it also provides that such authority may be requested later in an ex parte written motion. La. C.C.P. art. 5183(A)(1). Moreover, district courts have the authority and duty to subject the indigent litigant to constant scrutiny to prevent abuse of the privilege to proceed as a pauper. McCoy v. State, Ex Rel. Jones, 39,323 (La.App.2d Cir.2/17/05), 901 So.2d 1109. Nothing in our law addresses what effect, if any, the determination of pauper status in one judicial district has once the matter is transferred to another district. Not only the district court judge, but also the clerk of a district court, is empowered to grant a litigant’s application for pauper status. See La. C.C.P. art- 283(4) and La. C.C.P. art. 5183(B). District courts collect their fees through their clerks of court, and as to their fees, courts are separate. entities. Clearly the decision of one district court should not bind another as to the determination of whether to allow a litigant to proceed as a pauper. We find that the Second Judicial District had the authority to review Rhone’s application and make its own determination as to whether to grant him the authority to proceed in forma I¿pauperis. Because Rhone was granted pauper status in the Second Judicial District and the automatic stay enforced both subsequent to the effective date of Act 89, we find that there was no retrospective application of the automatic stay.

Even so, we do not find that consideration of the retroactivity issue in light of Cheron, supra, would lead to the conclusion that application of the automatic stay to Rhone’s suit was improper. Applying Act 89 in Cheron’s case would have divested him of vested rights by the dismissal of his suit for having failed to exhaust administrative remedies prior to filing his tort claim'. Here, application of the automatic stay does not divest Rhone of vested rights in his suit. His suit has not been dismissed. Rather, it is stayed pending payment of costs of fees which have accrued. In Rhone v. Ward, 39,701 (La.App.2d Cir.5/11/05), 902 So.2d 1258, we rejected the challenges to the constitutionality of the automatic stay provision. In doing so, we reasoned that the automatic stay provision discourages the filing of frivolous suits as well as unnecessary motions or discovery requests that prolong litigation, increase expenses, and strain limited judicial resources. Rhone may proceed with litigation of his claim upon payment of accrued costs and fees. We note that under La. R.S. 15:l-186(B)(2)(c), Rhone’s suit may be subject to dismissal if costs are not paid within three years from when they are incurred. However, that eventuality is not before us.

CONCLUSION

For the reasons stated, we find there was no improper retroactive application of the automatic stay provision in the instant matter and that ^application of the stay has not disturbed Rhone’s vested rights as in Cheron, supra. We hereby affirm the judgment of the trial court finding no constitutional violation by application of the automatic stay in this matter.

AFFIRMED.