author: AMY, Judge.

text:
    STATE of Louisiana v. Paul E. WILSON.
    No. 07-365.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 2007.

      John F. DeRosier, District Attorney, Lake Charles, LA, for Appellee State of Louisiana.
    G. Paul Marx, Lafayette, LA, for Defendant/Appellant Paul E. Wilson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

hThe defendant was charged by bill of information with aggravated second degree battery in violation of La.R.S. 14:34.7. He pled guilty to the amended charge of aggravated battery in violation of La.R.S. M^. The defendant was sentenced to five years with the Department of Corrections, to run consecutively to any sentence he was currently serving in Texas. The trial court denied his motion to reconsider sentence. The defendant now appeals.

Appellate counsel has filed an Anders brief in this matter. For the following reasons, we affirm and grant appellate counsel’s motion to withdraw.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two errors patent.

First, the face of the bill of information indicates that the defendant was originally charged with one count of aggravated second degree battery occurring on or about September 7, 2000, a violation of La.R.S. 14:34.7. The State amended the bill to charge the defendant with aggravated battery occurring on or about. “10-22-98 and September 7, 2000” and listed the victim as Michael Berry. It appears that the bill charged two distinct crimes in a single count. Louisiana Code of Criminal Procedure Article 493 allows for the join-der of two or more offenses in the same bill in a separate count for each offense if certain requirements are met. Here, the bill indicates that these incidents occurred two years apart. Therefore, we find that the | ^inclusion of the two distinct crimes in one count of the bill was error; however, for the reasons discussed below, we find that any error was waived.

This court in State v. Simpson, 464 So.2d 1104, 1109 (La.App. 3 Cir.1985), defined duplicity as “the charging of more than one distinct crime in one count of ah indictment.” The fourth circuit, in a case in which the indictment improperly charged the defendant disjunctively rather than conjunctively, held that a claim that an indictment is duplicitous is not a jurisdictional defect and is waived if not timely asserted in a motion to quash. State v. Defraites, 449 So.2d 540 (La.App. 4 Cir.), writ denied, 452 So.2d 179 (La.1984). Here, no motion to quash was filed. Additionally, when the defendant entered his guilty plea, he waived any pre-plea non-jurisdictional defects. Thus, we find any error was waived.

Second, the bill does not contain the statutory citation for aggravated battery, the amended offense as required by La.Code Crim.P. art. 464. Article 464 also provides: “Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.” Here, the defendant does not allege any prejudice because of the missing citation. Further, by entering an unqualified guilty plea, the defendant waived review of this pre-plea non-jurisdictional defect. See State v. Crosby, 338 So.2d 584 (La.1976).

Anders Brief

Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the defendant’s appellate counsel has filed an Anders brief stating that he could find no errors on appeal that would support reversal of the defendant’s conviction or sentence. Therefore, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. As discussed in the error patent section, review of any errors in the bill of information was waived. See Crosby, 338 So.2d 584. The defendant was present and represented by counsel at all critical stages of the proceedings, and he entered a free and voluntary guilty plea after being properly advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant also received a legal sentence.

Accordingly, we affirm the defendant’s conviction and sentence. Finding no issues which would support an assignment of error on appeal, we grant appellate counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

ORDER

After consideration of appellate counsel’s request to withdraw as counsel and the appeal presently pending in the above captioned matter,

IT IS HEREBY ORDERED that appellate counsel’s motion to withdraw is granted.

      . According to the facts adduced at the guilty plea proceedings, on October 28, 1998, the defendant approached Michael Berry and demanded money. Berry threw money on the ground, and the defendant stabbed him in the chest. Additionally, on September 7, 2000, the defendant went to the home of George Colton and stabbed him in the chest.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Anna ROBERTSON v. DEPARTMENT OF POLICE.
    No. 2007-CA-0795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 2007.

      Gary M. Pendergast, New Orleans, LA, for PlaintiffrAppellant.
    Penya Moses-Fields, City Attorney, Joseph Y. DiRosa, Jr., Chief Deputy City Attorney, Victor L. Papai, Jr., Assistant City Attorney, Joanna Krawczyk, Law Clerk, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   PATRICIA RIVET MURRAY, Judge.

|, Plaintiff Anna Robertson appeals the decision of the New Orleans Civil Service Commission [“the Commission”] which upheld her suspension and subsequent dismissal by the New Orleans Police Department [“NOPD”]. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

The appellant, who held the rank of Police Officer I, was assigned to NOPD District 3. Hurricane Katrina made landfall near New Orleans on August 29, 2005. Officer Robertson was charged with failing to report for duty as ordered on August 28, 2005 and being absent from her job without permission through September 19, 2005. When she reported for duty on September 19, Officer Robertson was placed on suspension effective September 20, 2005. A disciplinary hearing was held on December 6, 2005, following which Officer Robertson was dismissed for neglect of duty effective the same day. Officer Robertson appealed her suspension and subsequent dismissal to the Commission, which heard the appeal on April 18, 2006.

LAt the hearing, only two witnesses testified: Sergeant Lawrence Jones for the NOPD and Officer Robertson on her own behalf. Sergeant Jones testified that he was the NOPD officer who was assigned to investigate Officer Robertson’s ease. Sergeant Jones took a statement from Officer Robertson’s immediate supervisor, Sergeant Troy Williams, who said that he had ordered Officer Robertson to report for duty on August 28, 2005. Sometime before 5:00 p.m. on August 28, Officer Robertson called Sergeant Troy and reported that she was attempting to return to New Orleans from Diamondhead, Mississippi, but had been stopped by St. Tammany Parish deputies, who had refused to let her proceed any further due to contraflow, which was directing all traffic away from New Orleans. Sergeant Troy did not hear from Officer Robertson again until she reported on September 19.

Sergeant Jones determined from his investigation that, because the weather had significantly deteriorated by 6:00 p.m. on August 28, Officer Robertson returned to her parents’ home in Diamondhead, where she rode out the hurricane alone on August 29 and 30. Afterward, she was unable to leave because her vehicle was blocked by fallen trees. Her husband, also an NOPD officer, arrived in Diamondhead shortly thereafter, having been granted permission to leave the city to search for his wife. The couple then remained in Diamondhead together for a few days because there was not enough gas in her husband’s car to return to the city, and no gas stations were open. Approximately nine days after the storm, Officer Robertson’s father showed up in Diamondhead to check on his property. |sAt this point Officer Robertson and her husband decided to go to Tallahassee with her father, where the couple’s infant daughter was being cared for by Officer Robertson’s mother. After remaining in Florida approximately two weeks, the couple' returned to Diamondhead. On September 16, Officer Robertson’s husband reported to the NOPD and voluntarily resigned from his job. Officer Robertson, however, did not report until three days later, on September 19. Sergeant Jones testified that during his interview of Officer Robertson, she said she had made no attempt to contact the NOPD during her stay in Florida. She also said she had decided to go back to Florida with her father because she believed he only had enough gas to return there. Sergeant Jones further testified that he had been unable to determine in the course of his investigation whether gas had been available in the area at that time.

At the conclusion of Sergeant Jones’s testimony, the parties entered two stipulations into the record. They first stipulated that Sergeant Troy Williams, if he had been called as a witness, would have testified to the same facts as those given in his statement to Sergeant Jones. The second stipulation was that Deputy Superintendent Marlon Defillo, if he had appeared, would have testified as follows: that he was present at the December 6, 2005, disciplinary hearing concerning Officer Robertson; that the police commanders who conducted the hearing were satisfied that Officer Robertson had been absent from her job without permission from August 28 until September 19, 2005; and that those commanders had |4recommended that, based upon the length of her absence, Officer Robertson be dismissed in addition the suspension already imposed upon her.

Officer Robertson then testified in her own behalf. She stated prior to the December, 2004, birth of her child, the NOPD had assigned her to a desk job in the Third District. She had returned to the desk job after having her baby. Officer Robertson testified that although she had asked to be switched back to street patrol, the switch had not yet occurred when Hurricane Katrina struck. On Saturday August 27, 2005, Officer Robertson went to Diamond-head, Mississippi to bring her baby daughter to her parents, who were evacuating to Florida. On Sunday afternoon, she attempted to drive to New Orleans to report for work as scheduled at 5:00 p.m., but she was stopped in St. Tammany Parish due to the contraflow. Officer Robertson’s testimony relating what happened between August 28 and September 18 was essentially the same as the account she had given Sergeant Jones in her statement. According to her testimony, she went to New Orleans on September 18 intending to report for work, but she could not find anyone to give her an assignment that day. She also explained that she had not gone into the city with her husband on September 16 because her mother was no longer willing to care for her baby. On cross-examination, Officer Robertson testified that it had not occurred to her to attempt to siphon gas from her trapped vehicle to use in either her husband’s or her father’s car. She also stated that when her father arrived in Diamondhead, she did not ask him to take her to New Orleans because she did not | ñknow whether he would need the extra 5-gallon can of gas he was carrying to make it back to Florida.

Based upon the testimony presented at the hearing, the Commission found that Officer Robertson’s account of the events that occurred after the passage of Hurricane Katrina did not provide a legitimate basis to conclude that she was prevented from reporting for duty for the lengthy period of her absence. The Commission further noted that although the appellant had been a good officer during her short career with the NOPD, her absence at such a critical time in the city’s history could not be overlooked, and the fact that she did not return earlier left her subject to the NOPD’s necessarily firm policy regarding unauthorized absences of such a length. The Commission therefore dismissed Officer Robertson’s appeal of her suspension and termination.

APPLICABLE LAW

An employer cannot subject an employee who has gained permanent status in the classified city civil service to disciplinary action except for cause expressed in writing. La. Const. Art. X, § 8(A); Walters v. Department of Police, 454 So.2d 106, 112 (La.1984). The employee may appeal from such a disciplinary action .to the Commission. Id. The Commission has a duty to decide, independently from the facts presented whether the appointing authority had good and lawful cause for taking the disciplinary action and, if so, whether the punishment imposed was commensurate with the dereliction. Id. at 113. Legal cause exists whenever the ^employee’s conduct impairs the efficiency of the public service in which the employee is engaged. Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4th Cir.1990). The appointing authority bears the burden of proving by a preponderance of the evidence that the conduct complained of occurred and that the conduct impaired the efficiency of the public service. Id. The appointing authority must also prove that the actions complained of bore a real and substantial relationship to the efficient operation of the public service. Id.

In civil service disciplinary cases, the appellate court has a multifaceted standard of review. First, as in other civil matters, deference must be given to the factual findings made by the Commission, which should not be disturbed unless manifestly erroneous or clearly wrong. Second, in evaluating the Commission’s determination as to whether the disciplinary action is both based on legal cause and commensurate with the infraction, the appellate court should not modify the Commission’s order unless it is arbitrary, capricious, or characterized by an abuse of discretion. Bannister v. Department of Streets, 95-404, p. 8 (La.1/16/96), 666 So.2d 641, 647 (citations omitted).

DISCUSSION

Applying these legal principles to the facts of the instant case, we conclude that the Commission did not abuse its discretion by dismissing Officer Robertson’s appeal. Officer Robertson did not dispute that she was absent from her job without authorization for time period for which she was disciplined. While it may have been impossible for her to report in or to contact the NOPD in immediate aftermath 17of Hurricane Katrina, she did not adequately explain why she did not attempt to do so later on and instead decided to go to Florida with her father for two weeks. The crisis that existed in New Orleans in the weeks following the hurricane and the need of the NOPD for its officers during that critical time is undeniable. This court also recognizes the NOPD’s legitimate objective to maintain uniformity in the penalties imposed upon those officers whose unexcused failure to return to their jobs within a reasonable time after the storm clearly hampered the ability of the Police Department to function effectively during the crisis. We therefore conclude that the Commission did not err by upholding Officer Robertson’s suspension and termination.

CONCLUSION

Accordingly, we affirm the ruling of the Commission.

AFFIRMED.


text:
    Aguillard SANCHEZ v. HARBOR CONSTRUCTION CO., INC.
    No. 2007-CA-0234.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 2007.

      David W. Bernberg, Henna Ghafoor, The Law Office of David W. Bernberg, L.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Richard S. Vale, Pamela P. Noya, Blue Williams, L.L.P. Metairie, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE).
   PATRICIA RIVET MURRAY, Judge.

| ¶ This is a tort suit. The sole issue presented in this appeal is whether the trial court erred in finding that the plaintiff, Aguillard Sanchez, was the borrowed servant of the defendant, Harbor Construction Co., Inc. (“Harbor”), at the time of his personal injury and thus dismissing on summary judgment Mr. Sanchez’s tort suit against Harbor; Harbor’s general liability and maritime insurer, the Gray Insurance Company; and one of Harbor’s employees, Thai Nguyen. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Global Fabrication and Welding (“Global”) is a temporary labor service that supplies Harbor with workers on an “as needed” basis. Harbor is a general construction company. On August 8, 2002, Harbor contacted Global and requested a welder for the next day. On August 9, 2002, Global sent Mr. Sanchez to Harbor’s jobsite, which was at the Napoleon Avenue Wharf. Global instructed Mr. Sanchez to report to Harbor’s foreman. On his first day on the job, Mr. Sanchez was injured when a 500,000 gallon diesel fuel tank fell from the forklift that one of Harbor’s employees, Mr. Nguyen, was operating. This tort suit followed.

pin March 2005, Harbor filed a motion for summary judgment contending that Mr. Sanchez was its borrowed servant at the time of the accident, and, therefore, his exclusive remedy is worker’s compensation benefits. In support, Harbor relied on the affidavit of its general superintendent, Sullivan Perry, who attested that on August 9, 2002, Mr. Sanchez was working at a Harbor job site pursuant to a “long-standing agreement” under which Global would provide laborers to work at Harbor job sites. Opposing the first summary judgment, Mr. Sanchez and Global emphasized the lack of a written contractual agreement between the parties. In support, Global provided the affidavit of its owner and president, Michelle Hebert, who attested that on August 8, 2002, there was no written contract between Harbor and Global. On July 29, 2005, the trial court denied the motion for summary judgment.

On August 10, 2006, Harbor filed a second motion for summary judgment again arguing that Mr. Sanchez was its borrowed servant. In support, it provided new evidence: Ms. Hebert’s deposition testimony acknowledging that her statement in her affidavit that there was no written agreement in effect between Harbor and Global at the time of the accident was inaccurate. Harbor also provided a copy of the written contract itself, entitled the “Master Service Agreement.” This contract provided the basic terms and conditions of the relationship between Harbor and Global. Additionally, Harbor provided the | ¡¡deposition testimony of Mr. Perry, who testified regarding the relationship between Harbor and Global.

Opposing the summary judgment, Mr. Sanchez contended that the. following factual discrepancies precluded summary judgment:

• The accident occurred on premises other than that of Harbor while work was being done for Impsa at the Napoleon Street Wharf.
• Mr. Sanchez’s employer, Global, completed an accident report and no accident report was completed by Harbor.
• The written agreement between Harbor and Global mandated that Global was to carry worker’s compensation insurance, insuring Mr. Sanchez for any work related incidents — this is prima facie proof of employment.
• A policy of liability and maritime insurance was issued by Gray in favor of Harbor and this policy makes no mention for additional employees or additional insureds of other companies including those .of Global. There was no worker’s compensation coverage that was available to Mr. Sanchez that was provided by Harbor.
• Ms. Hebert stated that she had the ultimate authority of whether to hire or fire Mr. Sanchez.
• Global provided its own safety meetings for its own employees and these were attended by Mr. Sanchez as evidenced by the accident report completed by Global. The safety minutes of Harbor show that Mr. Sanchez did not attend any of these meetings, was never instructed on the safety policies of Harbor, and was not provided with a copy of their safety manuals or instruction booklets.
• Mr. Ed Cronic, a Global employee, was Mr. Sanchez’s first line supervisor and completed the accident report following Mr. Sanchez’s injury.
• Global paid Mr. Sanchez his salary.

On August 2, 2006, the trial court granted Harbor’s motion for summary judgment and dismissed all claims by Mr. Sanchez against it pursuant to La. R.S. 23:1031. This appeal followed.

I¿STANDARD OF REVIEW.

“Favored in Louisiana, the summary judgment procedure ‘is designed to secure the just, speedy, and inexpensive determination of every action’ and shall be construed to accomplish these ends.” King v. Parish Nat’l Bank, 04-0337, p. 7 (La.10/19/04), 885 So.2d 540, 545 (quoting La. C.C.P. art. 966(A)(2)). An appellate court reviews a trial court’s decision granting summary judgment de novo using the same standard applied by the trial court in deciding the motion for summary judgment. Schmidt v. Chevez, 00-2456, p. 4 (La.App. 4 Cir.1/10/01), 778 So.2d 668, 670. According to this standard, a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Schmidt, 00-2456 at p. 3, 778 So.2d at 670.

DISCUSSION

The dispositive issue on appeal is whether Mr. Sanchez was Harbor’s borrowed servant. Although an employee’s borrowed servant status is a legal issue for the court to decide, the jurisprudence has enunciated the following nine factual factors to be considered in determining whether an employee should be characterized as a borrowed servant:

1. Who had control over the employee and the work he was performing beyond mere suggestion of details or cooperation?
2. Whose work was being performed?
3. Was there an agreement, understanding, or meeting of the minds between the original and the borrowing employer?
[s4. Did the employee acquiesce in the new work situation?
5. Did the original employer terminate his relationship with the employee?
6. Who furnished tools and place for performance?
7. Was the new employment over a considerable length of time?
8. Who had the right to discharge the employee?
9. Who had the obligation to pay the employee?

Hall v. Equitable Shipyard, Inc., 95-1754 at p. 4 (La.App. 4 Cir. 2/29/96), 670 So.2d 543, 545-46 (citing Ledet v. Quality Shipyards, Inc., 615 So.2d 990, 992 (La.App. 1st Cir.1993)); see also Wells v. Traynor, 04-0064 (La.App. 4 Cir. 12/1/04), 892 So.2d 21. We separately analyze each of these factors.

1. Control

For worker’s compensation purposes, the jurisprudence has considered an employee borrowed when the lending employer gives up control to the borrowing employer. Freeman v. Brown’s Furniture of Bunkie, Inc., 527 So.2d 544 (La.App. 3d Cir.1988). This factor addresses who directly supervises the employee while the work is being performed. Mr. Perry testified that Global did not provide Harbor with any supervisors to oversee the daily work performed by its employees at the job site. He further testified that Harbor personnel directly supervised the work of Global’s employees. Likewise, Ms. Hebert acknowledged that Mr. Sanchez was supervised and controlled by Harbor. This factor supports a finding of borrowed servant status.

2. Whose work?

Both Mr. Perry and Ms. Hebert testified that Mr. Sanchez was performing Harbor’s work. Indeed, the only work that Mr. Sanchez performed while he was 1 (¡employed by Global was on behalf of Harbor. This factor thus favors a finding of borrowed servant status.

3. Agreement

The Master Service Agreement in effect between Global and Harbor at the time of the accident specifically provided that Global “is to serve as a labor resource service furnishing qualified skilled and semi-skilled workers on request as needed” to Harbor. The agreement requires Harbor to keep daily time sheets on the workers and to report the number of hours the employees worked to Global. The agreement further requires that Global issue an invoice to Harbor and pay its own employees. The agreement still further requires Harbor to provide “all machinery, equipment, and job supervision.” Under the agreement, Global is required to provide “workers compensation and general liability coverages within the limits required by the client [Harbor].”

Mr. Sanchez contends that the latter requirement that Global provide the worker’s compensation insurance establishes that he is not Harbor’s borrowed servant. This contention is belied by Ms. Hebert’s testimony that part of the hourly rate that Global billed Harbor went to pay insurance costs, including worker’s compensation. Harbor thus, in effect, did pay (albeit indirectly) for Mr. Sanchez’s worker’s compensation coverage. See Melancon v. Amoco Production Co., 834 F.2d 1238, 1247, n. 17 (5th Cir.), reh’g granted on other grounds, 841 F.2d 572 (5th Cir.1988). Regardless, both the lending and borrowing employer are liable in solido for worker’s compensation. La. R.S. 23:1031(C). This factor also supports a finding of borrowed servant status.

|74. Did the employee acquiesce?

Although there is no evidence that Mr. Sanchez voiced any objection to Global regarding his work assignments at the Harbor job site, he only worked at Harbor for one day — the day of the accident. This factor, therefore, is neutral as to Mr. Sanchez’s borrowed servant status.

5. Did Global terminate its relationship with Mr. Sanchez?

This factor evaluates the lending employer’s relationship with the employee while the borrowing occurs. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 11 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 6. This factor does not require a lending employer to completely sever its relationship with the employee. Id. In order to find that a relationship has been terminated, this factor requires that the lending employer place no restrictions upon the employment conditions of its employee. Id. The determinative facts on this factor are that Mr. Sanchez was supervised by Harbor employees and paid by Global. Indeed, but for the accident Global’s only involvement with Mr. Sanchez would have been to pay him.

In support of his claim that Global retained a relationship with him, Mr. Sanchez relies on the fact that the only accident report was prepared by Global. In this regard, Mr. Perry testified that after the accident he not only called for an |sambulance, but also called Global to report that one of its employees was injured. A Global employee, Mr. Cronic, came to the job site and prepared the accident report. Mr. Perry testified that although Harbor normally would have prepared an accident report, it did not do so because Global had prepared one. Mr. Perry further testified that Mr. Sanchez refused to ride in the ambulance. Instead, he left the job site with Mr. Cronic, who took him to the hospital in a Global vehicle.

Despite Global’s post-accident involvement with Mr. Sanchez, it is undisputed that no Global supervisors were on the job site at the time of Mr. Sanchez’s accident. Moreover, the agreement between Harbor and Global clearly required Harbor to provide the job supervision. Given that Global’s involvement with Mr. Sanchez while working at the Harbor job site was minimal, we find this factor supports a finding of borrowed servant status.

6.Who furnished the tools and place?

Mr. Sanchez was working at Harbor’s job site. The agreement required Harbor to furnish the primary tools — machines, cutting torches, grinders, electrodes, and similar items — and the employees to furnish their personal equipment — the basic hand tools and safety equipment necessary to perform their duties, ie., hard hat, safety glasses, steel toe shoes, gloves, welding shield, and similar items. Consistent with the agreement, Ms. Hebert testified that although the employees were to furnish their own personal equipment, Harbor was required to furnish the welding machine, torch, grinding wheels, and other primary equipment needed to do the job. This factor supports a finding of borrowed servant status.

7. Length of time?

IsWhere the length of time the employee has worked for the borrowing employer is considerable, this factor is significant and supports a finding that the employee was a borrowed servant. Foreman, 97-2038 at p. 7, 722 So.2d at 12. The converse, however, is not true. One day of employment has been found not to bar a finding of borrowed servant status. Hall, supra (citing Capps v. N.L. Baroid-NL Industries, Inc., 784 F.2d 615 (5th Cir.1986)). A short term employment will generally require a finding of neutrality as to this factor. Foreman, 97-2038 at pp. 12-13, 722 So.2d at 7. In this case, Mr. Sanchez was injured on the first day on the job. Global had not sent him on any previous jobs; this factor is neutral as to Mr. Sanchez’s borrowed servant status.

8. Right to discharge

The question posed by this factor is “not which entity had the power to terminate the injured plaintiffs employment outright, but whether the borrowing employer had the authority to terminate the employee’s services with itself.” Alleman v. Omni Energy Services Corp., 512 F.Supp.3d 448, 455 (E.D.La.2007) (citing Melancon, 834 F.2d at 1246); see also Maddox v. Superior Steel, 00 1539, p. 8 (La.App. 1 Cir. 9/28/01), 814 So.2d 569, 574. This requirement is met if the borrowing employer has the authority to terminate the employee’s work at the job site. Hall, 95-1754 at p. 8, 670 So.2d at 547. Although Global ultimately retained the right to terminate its own employees, both Mr. Perry and Ms. Hebert testified that Harbor had the right to terminate an employee sent to it by Global. Harbor thus had the right to terminate Mr. Sanchez’s services with itself, and this factor supports a finding of borrowed servant status.

9. Obligation to pay

| inThis factor focuses on who provided the funds used to pay the employee. See Jones v. Compression Coat Corp., 00-0333, p. 11 (La.App. 3 Cir. 11/2/00), 776 So.2d 505, 512; Hall, supra. The inquiry under this factor is not from which employer’s bank account the employee’s paychecks originate. Alternan, supra. When the borrowing employer pays the lending employer an hourly rate and the lending employer then pays from that sum a lower rate to the borrowed employee, a finding of borrower servant status is supported. Id. Such was the case here. Harbor furnished the funds from which Global ultimately paid Mr. Sanchez. Melancon, 834 F.2d at 1246. This factor also supports a finding of borrowed servant status.

In sum, we find, based on the above analysis, that Harbor established Mr. Sanchez was its borrowed servant at the time of the accident; the trial court did not err in granting summary judgment.

DECREE

For the reasons stated above, the judgment of the trial court is affirmed.

AFFIRMED.

      . The record reflects that the job on which Mr. Sanchez was working involved removing two large, cranes from a ship. Due to the nature of his employment, this claim may arise under general maritime law, and Mr. Sanchez’s remedy would be under the LHWCA, not Louisiana law. Regardless, under either the LHWCA or Louisiana law a finding of borrowed servant status would bar his tort claim.

      . During the interim between the filing of the first and second motions for summary judgment, Mr. Sanchez added as defendants Harbor’s general liability and maritime insurer, Gray, and one of Harbor's employees, Mr. Nguyen. Gray and Mr. Nguyen joined with Harbor in filing the second motion for summary judgment. They likewise aré appellees in this appeal. The parties do not dispute that a finding that Harbor was Mr. Sanchez’s borrowed employer is dispositive of the non-intentional tort liability as to all three of these defendants. Thus, for ease of discussion, we refer solely to Harbor.

      . An intervention was filed by Mr. Sanchez's direct employer, Global Fabrication and Welding, and its worker's compensation insurer, the Louisiana Commerce .and Trade Association Self Insurers’ Fund. Although Global opposed the first motion, for summary judgment, it did not oppose the second motion. Indeed, the August 2, 2006 judgment granting the second motion states that "[cjounsel for Intervenor had waived its appearance and file[d] no opposition to the Motion for Summary Judgment.”

      . La. R.S. 23:1031(C) provides as follows:
      In the case of any employee for whose injury or death payments are due and who is, at the time of the injury, employed by a borrowing employer in this Section referred to as a "special employer”, and is under the control and direction of the special employer in the performance of the work, both the special employer and the immediate employer, referred to in this Section as a "general employer”, shall be liable jointly and in solido to pay benefits as provided under this Chapter. As between the special and general employers, each shall have the right to seek contribution from the other for any payments made on behalf of the employee unless there is a contract between them expressing a different method of sharing the liability. Where compensation is claimed from, or proceedings are taken against, the special employer, then, in the application of this Chapter, reference to the special employer shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the general employer by whom he is immediately employed. The special and the general employers shall be entitled to the exclusive remedy protections provided in R.S. 23:1032.

      . The indemnity and contribution rights between Harbor and Global were not addressed by the trial court and are not before us on appeal. Nor do we address Mr. Sanchez’s rights to compensation.


author: CANNIZZARO, Judge.

text:
    Janice M. HORNOT v. Leonard CARDENAS, III.
    No. 2006-CA-1341.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 2007.

      Janice M. Hornot, Baton Rouge, LA, In Proper Person, Plaintiff/Appellant.
    Henri M. Saunders, Baton Rouge, LA, for Defendant/Appellee, Leonard Cardenas, III.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.)
   CANNIZZARO, Judge.

|TThe defendant, Leonard Cardenas III, represented the plaintiff, Janice Hornot, in a personal injury lawsuit that arose out of an automobile accident in which Ms. Hor-not was injured. Ms. Hornot was dissatisfied with Mr. Cardenas’ representation in the personal injury case, and she filed the instant lawsuit against Mr. Cardenas. Mr. Cardenas filed a reconventional demand asserting that certain allegations against him made by Ms. Hornot in the petition in the instant case were defamatory. The trial court judge held that Ms. Hornot failed to present any facts to support her allegations in the instant ease and that Mr. Cardenas was defamed by certain of those allegations. The trial court awarded Mr. Cardenas $7,500.00 in damages. Ms. Hor-not is appealing the damage award. Mr. Cardenas answered the appeal and claimed that he is entitled to a higher damage award.

FACTS AND PROCEDURAL HISTORY

Both Ms. Hornot and Mr. Cardenas are attorneys licensed to practice in Louisiana. In the fall of 2001, Ms. Hornot contacted Mr. Cardenas and asked him to represent her in connection with an accident that occurred in March of 1996, in which an eighteen wheel truck hit her automobile and caused her to suffer various neck, arm, and shoulder injuries. Ms. Hornot had originally been represented by | ^another attorney, but she wanted to hire Mr. Cardenas, because her original attorney was very busy with a major case. Suit had already been filed and some depositions had been taken prior to the time that Ms. Hornot contacted Mr. Cardenas.

In a letter to Ms. Hornot dated October 26, 2001, Mr. Cardenas discussed accepting Ms. Hornot as a client in connection with her lawsuit. He enumerated in the letter the following items that he thought the defendants in the suit would use to their advantage:

1.) Reporting no injury to the investigating police officer;
2.) Failing to receive any medical attention or treatment for approximately fifteen months after the accident;
3.) Having two intervening accidents before receiving medical treatment, one involving the fall and the other a rear-end accident about one month prior to your first medical visit following the subject accident;
4.) Your extensive preexisting history, including prior cervical fusion and the degenerative and progressive nature of that condition; and
5.) An apparent diagnosis of carpal tunnel syndrome prior to this accident.

Nevertheless, Mr. Cardenas noted that he believed Ms. Hornot had a legitimate case and that he was prepared to represent her, but first he would need to review all of the file materials relevant to her case. •

At the trial Ms. Hornot testified that one of the issues that arose in the accident case was her failure to seek médical treatment for some time after the accident. She explained that at the time of the accident she was working in an office that was in the process of trying to obtain group health insurance coverage, “so I thought I would wait to see if we might be able to get health insurance.”

| sIn a letter to Ms. Hornot dated January 10,- 2002, Mr. Cardenas discussed the possibility of settling her personal injury case. He stated that “I believe that the insurance company may be willing to pay up to, but probably no more than, $100,000 if we push the matter.” He suggested making a settlement demand of $185,000.00. Additionally, Mr. Cardenas explained his proposed fee. He stated, “If this matter can be settled at this time without further discovery, and as a professional and personal courtesy and favor to you, I am willing to reduce my fee to 17.5% of the gross amount recovered.” Mr. Cardenas then asked Ms. Hornot to sign and date an enclosed copy of the letter to signify her assent to the contingency fee proposal.

After sending Ms. Hornot the January 10 letter, Mr. Cardenas, with Ms. Hornot’s consent, made a settlement offer of $200,000.00. In a letter of February 26, 2002, Mr. Cardenas advised Ms. Hornot that the defense attorney in her personal injury case was not interested in responding to her settlement offer at that time but would, instead, prefer to respond at a mediation.

Initially, Ms. Hornot refused to mediate her claims unless the defendants agreed to pay the entire cost of the mediation. In a letter dated March 12, 2002, Mr. Cardenas acknowledged receiving a voice mail message from Ms. Hornot in which she.advised him that unless the defendants paid the entire cost of the mediation, she had no intention of participating in it. Mr. Cardenas’ letter also confirmed that Ms. Hornot said that she felt that everyone was “ganging up” on her and that she did not want to expose herself to such behavior. After discussing the |4weaknesses of Ms. Hornot’s case and his concern that “I am not going to be able to represent you to your satisfaction,” Mr. Cardenas’ March 12 letter advised Ms. Hornot that if he did not hear from her within the next two days, he would withdraw from representing her. Ultimately, Ms. Hornot agreed to pay half of the mediation cost, Mr. Cardenas represented Ms. Hornot at the mediation, and the personal injury case was settled for $95,000.00.

Ms. Hornot testified that “[i]n the early part of March of 2002 I had a telephone conversation with Mr. Cardenas in which he told me that the defense attorney had some evidence that I had committed insurance fraud and that he did not know the specifics of what the allegations were about the insurance fraud but that the defense attorney had evidence that convinced him, the defense attorney, that I had committed insurance fraud.” Ms. Hornot further testified that when she spoke to Mr. Cardenas about filing a motion in limine to prevent the defense attorney from raising the issue of insurance fraud at trial, “Mr. Cardenas indicated that he did not want to taint the judge’s mind against me and perhaps suggest to the judge that I had done something that was illegal or improper or unethical'....”

Ms. Hornot said that she took Mr. Cardenas’ March 12 letter, in which he suggested that he would resign from the personal injury case, very seriously. She was concerned about deadlines in the case, and she was concerned that she might have a difficult time finding another attorney if she had to tell the attorney that “the opposing counsel intended to accuse me of insurance fraud because he had some kind of evidence that I had committed insurance fraud.” Ms. Hornot stated that she was concerned that if she did not go to mediation, Mr. Cardenas would withdraw as her attorney. Therefore, she felt compelled to proceed to mediation.

IkMs. Hornot testified that although she knew she had not committed insurance fraud, she was concerned about the mediation being unfair, and she said that she was, therefore, under “emotional, pressure.” Ms. Hornot was asked what Mr. Cardenas’ response was when she told him that she wanted to leave the mediation. Her response was that Mr. Cardenas said that she should not leave the mediation, that the allegations of insurance fraud were very serious, and that the defense attorney was very serious about the allegations. Ms. Hornot further said that Mr. Cardenas told her that “if I didn’t settle the case that day, if I walked out of the mediation and didn’t settle the case, that they intended to contact the Disciplinary Counsel and report me to the Disciplinary Counsel; and they intended to have me arrested for insurance fraud.” Ms. Hornot further said that Mr. Cardenas had told her that he did not know the basis for the insurance fraud allegations.

During the mediation Ms. Hornot believed that her medical situation and her lost wages “didn’t really matter.” She believed that “[t]he main thing was that they had some kind of evidence that I had committed insurance fraud.” She said that the defense intended to use that evidence against her and that she understood that the evidence was “solid and concrete and irrefutable and that it was very serious.” In fact, Ms. Hornot testified that her main motivation in signing the settlement papers at the mediation was “the accusation of insurance fraud,” about which she knew nothing. Subsequently, Ms. Hornot refused to sign the receipt and release for the settlement, and the settlement funds were held in Mr. Cardenas’ client trust account. Ms. Hornot stated that she refused to sign the receipt and release, “[bjecause it had some language in the Receipt and Release about the fact that I had not been coerced or pressured in order to settle the case; I had a problem with | Bthat language.” Ultimately, according to Ms. Hornot’s testimony, she did sign a judgment, which she had drafted, dismissing her claims in the personal injury suit.

In a letter dated July 12, 2002, that Mr. Cardenas wrote to Ms. Hornot, he said that he was very concerned and hurt that Ms. Hornot had accused him of coercing her into mediating and settling her personal injury case. When asked whether she had, in fact, accused Mr. Cardenas of these things, she testified that she had. Ms. Hornot further stated in her testimony at trial that “I did not agree to participate in a mediation willingly.” She did admit, however, that Mr. Cardenas had never personally accused her of insurance fraud. Further, she testified that the reference in her petition to her being a victim of the crime of extortion did not refer to Mr. Cardenas. She said that what she meant by referring to extortion was “that threats were communicated to me by Mr. Cardenas because he had a responsibility and an obligation as my attorney to tell me what the defense is [sic] intended to do if I did not agree to settle the case.”

Ms. Hornot also testified that she understood that if she did not settle her personal injury case at mediation, the defense counsel would take action against her with respect to the alleged insurance fraud. Finally, Ms. Hornot testified that Mr. Cardenas defrauded her, because “I believe that the insurance defense attorney in the primary case did not communicate to Mr. Cardenas threats of insurance fraud and that whatever mention of insurance fraud took place, if any, was vague and innocuous, if anything, and that Mr. Cardenas used it as leverage to get me to settle the case.”

Mr. Cardenas’ testimony regarding the mediation and his representation of Ms. Hornot was very different from Ms. Hor-not’s testimony. Mr. Cardenas said that when Ms. Hornot first approached him about representing her in her personal 17injury case he was “flattered and honored that a fellow member of the bar would hire me.” He also considered Ms. Hornot a “sophisticated client,” because she had been a personal injury lawyer herself for over twenty years.

Mr. Cardenas was asked whether the reason that Ms. Hornot did not want to mediate her claims was that he had informed her that the defendants were saying that she was engaged in some type of insurance fraud. He said no, and he then testified, “That’s not at all — that insurance fraud didn’t really come up until after the settlement in terms of insurance fraud when I used those terms in my July 12th letter of 2002 to her.” When asked whether he had communicated to Ms. Hornot that the defendants had hard evidence that she had engaged in insurance fraud at some time in the past, Mr. Cardenas replied, “No. That’s an absolute fabrication on her part.” Mr. Cardenas further explained that when he read Ms. Hornot’s deposition, which was taken prior to his representation of Ms. Hornot, he noticed that her explanation for not seeking medical treatment for twenty-two months after the accident was that she did not want to create a pre-existing condition that would not be covered under a medical insurance policy her office was in the process of obtaining.

Mr, Cardenas further testified that the term “insurance fraud” was used only after Ms. Hornot’s case was settled. Mr. Cardenas said that he then wrote Ms. Hor-not a letter in which he said that the “perception was going to be that you were willing to — not that you did — it was going to be that you were willing to engage in insurance fraud to protect yourself from exclusion of insurance coverage.” Mr. IsCardenas denied that he had ever told Ms. Hornot that the defendants in her personal injury lawsuit had hard evidence of insurance fraud. He stated, “[T]hat’s an absolute fabrication. I never said that to her.”

When Mr. Cardenas was asked about Ms. Hornot’s immediate reaction to the settlement of her lawsuit, he testified that she was “thrilled.” He stated, “She was calling me the best lawyer in the world, that she couldn’t believe that we got $95,000 like I told her it would be, the top dollar we could possibly expect.” He further testified that Ms. Hornot was “very, very happy” and that she gave him a “big hug.”

Mr. Cardenas testified that he tried contacting Ms. Hornot through letters and telephone calls in an attempt to get her to come to his office so that the settlement funds from her lawsuit could be disbursed from his client trust account. Ms. Hornot finally responded . to the numerous calls and letters in a telephone call on July 9, 2002. According to Mr. Cardenas’ testimony, in the telephone call Ms. Hornot said that she was very unhappy with the settlement and that he had forced her to mediate her claims. Mr. Cardenas testified that her feeling that he had not settled her case for enough money was “a shock to me.” He further testified that the telephone conversation was the “first time she had ever voiced to me any dissatisfaction.”

On July 12, 2002, three days after the July 9 telephone call, Mr. Cardenas wrote a letter to Ms. Hornot. He testified that he told her how hurt he was that she would accuse him of “coercion and forcing her to settle.” He also stated that the words “insurance fraud” were used by him for the first time in the July 12 letter. He said that he reminded Ms. Hornot about the explanation that she gave in her 1 (¡deposition for her delay in seeking medical treatment, and he said that her explanation “could be perceived as insurance fraud.”

Mr. Cardenas testified that he denied all the allegations against him that Ms. Hor-not made in her petition. Further, he stated, “I deny that there was ever any conversation between me and Miss Hornot ever at mediation where I told her that they had insurance fraud information that I didn’t know the basis of it; that I told her that if she didn’t settle, that they were going to come arrest her or take some action against her. I vehemently deny any of that.” Mr. Cardenas did note, however, that he was concerned that the defendants would try to create a credibility issue with respect to Ms. Hornot’s deposition testimony that she did not seek medical help for her injuries for many months, because she did not want to have any pre-existing conditions when she applied for medical insurance.

Mr. Cardenas was questioned at the trial regarding the damages that he had suffered as a result of Ms. Hornot’s lawsuit against him. He testified that he had not sought medical attention for the stress that he had suffered because of the case. He further stated that he did not know of any clients that he had lost as a result of the lawsuit and that he did not think that any bank had denied him credit as a result of the suit.

The trial court judge rendered judgment in favor of Mr. Cardenas and against Ms. Hornot. The judgment stated that the trial court found no facts to support the allegations made by Ms. Hornot against Mr. Cardenas, including the allegation that Ms. Hornot was a victim of criminal extortion. Additionally, the judgment held that Mr. Cardenas proved his claim of defamation against Ms. Hornot. The trial court awarded Mr. Cardenas $7,500.00 in damages.

11 nDISCUSSION

Assignments of Error

. Ms. Hornot raised several assignments of error on appeal. They are discussed below.

Assignment of Error No. 1: The trial court committed manifest error in refusing to issue a declaratory judgment in favor of the plaintiff, Ms. Hornot.

Although Ms. Hornot did not originally file suit for a declaratory judgment, she subsequently amended her petition to request a declaratory judgment that “Leonard Cardenas III made one or more statements accusing Janice Hornot of conduct and/or actions that were, or are, criminal and/or illegal and/or unethical and/or unfounded and/or malicious and/or sanctiona-ble, and that at the time he made those statements ... he knew, or should have known, that one, or more of them, were false, or substantially false.” Also, at the beginning of the trial of the instant case, Ms. Hornot’s attorney advised the trial court that she was no longer seeking to challenge the terms of the settlement agreement in her personal injury case or to obtain damages from Mr. Cardenas. Rather, she was only seeking a declaratory judgment that Mr. Cardenas “has no information that she is guilty of a crime or unethical behavior in connection with the lawsuit that he represented her in some years ago.”

Louisiana Code of Civil Procedure article 1871 provides in relevant part that “[cjourts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” Louisiana Code of Civil Procedure article 1876 provides that “[t]he court may Inrefuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

This Court has stated with respect to the standard of review of a declaratory judgment action that “[o]n appeal, the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment.” In re Peter, 98-0701, p. 4-5 (La. App. 4 Cir. 12/28/98), 735 So.2d 665, 667. See also Ricard v. State, 544 So.2d 1310, 1312 (La.App. 4th Cir.1989). It should also be noted that the Louisiana Supreme Court has declared that “[tjrial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief.” Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 00-2517, p. 3 (La.2/21/01), 779 So.2d 726, 728.

In the instant case Ms. Hornot abandoned her original claims against Mr. Cardenas at the beginning of the trial. She only sought to obtain a declaratory judgment. Although the trial court did not render a declaratory judgment, the court did itemize in the judgment all of the allegations made by Ms. Hornot for which the trial court found no supporting evidence. The trial court was not required to issue a declaratory judgment just because one had been requested.

As stated, we note that under La. C.C.P. art. 1876, a court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or the controversy upon which a proceeding is based. In the instant case, a declaratory judgment that Mr. Cardenas was not in possession of information that indicated that Ms. Hornot was guilty of criminal or unethical behavior or that Ms. Hornot was not guilty of unethical or criminal behavior would not have terminated |12the controversy regarding Mr. Cardenas’ claims against Ms. Hornot. Thus, the trial court had the right to decline to issue a declaratory judgment.

Based on the record before us, we find that the trial court judge did not abuse her discretion in failing to issue a declaratory judgment. This assignment of error is without merit.

Assignment of Error No. 2: The trial court committed manifest error in failing to dismiss the reconventional demand of Mr. Cardenas on an exception of no cause of action and/or no right of action, which the trial court could have raised sua sponte.

Ms. Hornot filed an exception of no cause of action with the trial court, but the record does not reflect whether the trial court specifically considered the exception that was filed. Ms. Hornot also filed exceptions of both no cause of action and no right of action in this Court, which she is entitled to do under La. C.C.P. art. 2163. Both the exception of no cause of action and the exception of no right of action present questions of law. Therefore, the standard of review of the trial court’s action is a de novo review. See, e.g., Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217. We will consider the exceptions of no cause of action that Ms. Hornot filed in the trial court, the exception of no cause of action that she filed in this Court, and the exception of no right of action that she filed in this Court.

Exceptions of no cause of action and no right of action are both peremptory | ^exceptions, the function of which is “to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action.” La. C.C.P. art. 923. In the Badeaux case, the Louisiana Supreme Court discussed these two exceptions. The Supreme Court stated that “one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.” 05-0612, 05-719, p. 6, 929 So.2d at 1216-17.

The Supreme Court further explained that the function of an exception of no right of action is to determine whether a plaintiff is included in the class of persons to whom the law has granted the cause of action that is asserted in the plaintiffs petition. Id. The Supreme Court also discussed the function of an exception of no cause of action and stated that an exception of no cause of action “questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” 05-0612, 05-719, p. 7, 929 So.2d at 1217.

In considering the merits of an exception of no cause of action, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition. Id. To resolve the issues raised by an exception of no cause of [ uaction, “each well-pleaded fact in the petition must be accepted as true.” Id. In the case of an exception of no right of action, however, evidence is admissible at a hearing on the exception to either support or rebut the exception. Eubanks v. Hoffman, 96-0629 (La.App. 4 Cir. 12/11/96), 685 So.2d 597, 600.

Ms. Hornot asserted in her exception of no right of action that Mr. Cardenas did not have a right of action, because “[a]ny right of action for defamation does not vest in Mr. Cardenas until such time as the underlying case is terminated.” In McCall v. Bologna, 465 So.2d 115, 116 (La.App. 4 Cir.1985), this Court stated that “[o]ur jurisprudence has consistently held that an action for libel or slander arising out of allegations or statements made in a judicial proceeding cannot be brought by a party to that proceeding until it is terminated.” In Ortiz v. Barriffe, 528 So.2d 896, 898 (La.App. 4 Cir.1988), this Court also held that “an action for defamation arising out of allegations made in judicial proceeding [sic], and made against a party to those proceedings, cannot be brought until those proceedings are terminated.”

We agree with Ms. Hornot that an action for defamation that arises out of allegations made against a party in the pleadings in a judicial proceeding cannot be brought until the judicial proceeding is terminated. Nevertheless, in the instant case we find that the proceeding that gave rise to the allegations in the reconventional demand has, in effect, terminated, because prior to trial, Ms. Hornot |¶ ¿withdrew the claims of malpractice and for damages in her petition and sought only declaratory relief.

The facts in the instant case are analogous to the facts in the Costello case discussed above. In the Costello case allegedly defamatory statements were made in the petition in a malpractice action against an attorney and his law firm. The attorneys who were sued filed a reconventional demand claiming damages for the allegedly defamatory allegations. The trial court granted ' a partial summary judgment in the case dismissing the plaintiffs claims. Thus, that aspect of the judicial proceeding was terminated. The trial court then proceeded to consider the reconventional demand. In the instant case the claims that gave rise to the allegations of defamation in the reconventional demand were withdrawn at the beginning of the trial.

In Palmer v. Ameriquest Mortgage Co., 41,576 (La.App. 2 Cir. 12/13/06), 945 So.2d 294, writ denied, 07-0353 (La.3/30/07), 953 So.2d 70, the Louisiana Second Circuit Court of Appeal was also faced with the issue of whether a reconventional demand alleging defamation arising from the pleadings in the main case was properly before the court. The court acknowledged that an action for defamation arising out of allegations made in judicial proceedings against a party to those proceedings could not be brought until those proceedings were terminated. In the Palmer case, however, the claims made in the original lawsuit were settled, and the court found that the reconventional demand could then be considered. The court stated:

Finally, Shidler showed that Palmer and Ameriquest have settled all underlying claims. This satisfies the requirement that the original action must be terminated before the plaintiff can proceed with his defarhation or malicious prosecution claim.

Jig41,576. p. 13, 945 So.2d at 302.

In the instant case, we find that the allegations made in the petition that gave rise to the defamation claims in the recon-ventional demand were withdrawn by Ms. Hornot at the beginning of the trial. At that point the impediment to Mr. Cardenas’ bringing suit for defamation had been removed, and he had a right of action against Ms. Hornot. Thus, we find that the reconventional demand was properly before the trial court, and we hereby deny Ms. Hornot’s exception of no right of action.

In the case of the exceptions of no cause of action filed by Ms. Hornot in both the trial court and in this Court, we must review Mr. Cardenas’ reconventional demand to determine whether the law extends a remedy against Ms. Hornot under the factual allegations of the pleadings contained in the demand. Ms. Hornot asserted in her exceptions of no cause of action that insufficient facts were contained in the reconventional demand for a valid defamation claim to have been asserted.

In Costello v. Hardy, 03-1146 (La.1/21/04), 864 So.2d 129, the Louisiana Supreme Court considered a case in which a legal malpractice claim was filed both against an attorney who had drafted a will and against his law firm. The attorneys filed a reconventional demand for defamation based on the allegations of the malpractice petition. The Supreme Court stated as follows:

Defamation is a tort which involves the invasion of a person’s interest in his or her reputation and good name. “Four elements are necessary to establish a defamation cause of action: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” The fault requirement is often set forth in the jurisprudence as malice, actual or implied. Thus, in order to prevail on a defamation claim, a plaintiff must prove “ ‘that the |17defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.’ ” If even one of the required elements of the tort is lacking, the cause of action fails.

03-1146, p. 12, 864 So.2d at 139-140 (citations omitted).

The Supreme Court further explained in Costello that defamatory words can be either defamatory per se or susceptible of a defamatory meaning. The Supreme Court stated that “[wjords which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, even without considering extrinsic facts or surrounding circumstances, are considered defamatory per se.” 03-1146, p. 13-14, 864 So.2d 140. If publication of words that are defamatory per se is proven, the elements of falsity, malice, fault, and injury are presumed, but they can be rebutted. Id.

In Costello the Supreme Court found that there was no factual support for the legal malpractice claim and that the allegations in the petition in that case were defamatory. They were not defamatory per se, however, and malice on the part of the plaintiff in making the defamatory allegations was not proven. Therefore, because the element of malice was not proven, the claim for defamation was likewise not proven, and no damages were awarded.

In the instant case, Ms. Hornot alleged in her petition that Mr. Cardenas “pursued and followed a course of conduct and behavior toward Plaintiff which was designed and intended to pressure, coerce, force, intimidate and threaten Plaintiff to such a degree and extent that Plaintiff would agree to ‘settle’ despite her adamant unwillingness to settle.” Ms. Hornot also claimed in her petition that “she was a victim of the crime of extortion, as that term is defined in the Louisiana Criminal Code....”

|1sIn his reconventional demand, Mr. Cardenas alleged that, among other things, Ms. Hornot’s lawsuit was frivolous and was defamatory. He also alleged that the petition “constitutes malicious prosecution,” but during the course of the litigation, he withdrew that claim as being premature.

In the instant case, the reconventional demand contained sufficient allegations to state a cause of action for defamation. The petition contained defamatory statements, and the statements were published in a public court record. Because there were allegations that the crime of extortion was committed, there was an allegation that was defamatory per se. Thus, the element of falsity, the element of malice, and the element of injury were presumed. Although Ms. Hornot would have the opportunity to assert defenses to the cause of action for defamation, there was a valid cause of action alleged on the face of the reconventional demand. We, therefore, deny Ms. Hornot’s exception of no cause of action and affirm the finding by the trial court that Mr. Cardenas did state a cause of action against Ms. Hornot.

Assignment of Error No. S: The trial court committed manifest error in failing to grant the peremptory exception of no cause of action filed by Ms. Hornot prior to granting a judgment in favor of Mr. Cardenas.

As set forth in the discussion of the previous assignment of error, we find that Mr. Cardenas did state a cause of action in his reconventional demand. Therefore, this assignment of error is without merit. Assignment of Error No. H The trial court committed manifest error in finding and holding that there were no facts to support the plaintiff’s allegation of being a victim of extortion under the Louisiana criminal statute.

In Rosell v. ESCO, 549 So.2d 840 (La. 1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

|iaIt is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844. See also Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Harvey v. Cole, 00-1849, p. 2-3 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 775-76.

In the instant case much of the testimony of Mr. Cardenas completely contradicted the testimony of Ms. Hornot. Thus, there were two sets of facts presented to the trial court judge. Therefore, there were two permissible views of the evidence, and the trial court judge’s choice regarding which was the correct view cannot be manifestly erroneous or clearly wrong. Rosell, 549 So.2d at 844. The trial court judge had the benefit of observing the demeanor of the parties while they were testifying and was, therefore, in a better position than this Court to judge the credibility of the witnesses.

We do not find that the trial court judge was manifestly erroneous or clearly wrong in determining that there were no facts to support Ms. Hornot’s allegation that she was a victim of extortion. This assignment of error is without merit.

_J[^Assignment of Error No. 5: The trial court committed manifest error in finding and holding that Mr. Cardenas has provided sufficient evidence to support a claim of defamation per se.

Ms. Hornot argues that the trial court’s finding that Mr. Cardenas proved a claim of defamation per se was manifestly erroneous. She contends that the statements she made were not false. The veracity of those statements is a matter of fact that is within the province of the trial court. Rosell, 549 at 844.

Defamation per se is proven if the evidence demonstrates that a party has called a person a criminal or accused that person of being a criminal and has published the statement. In the instant case, based on the lack of credibility of Ms. Hornot, the trial court found that Ms. Hor-not had falsely accused Mr. Cardenas in her malpractice petition of committing the crime of extortion. Further, Ms. Hornot presented no evidence that the person she accused of extortion in her petition was anyone other than Mr. Cardenas, the party she was suing and the only person named in her petition.

Only if we were to find that the trial court committed manifest error or was clearly wrong in making the factual finding of defamation per se would we reevaluate the finding. In the instant case, as discussed in connection with the previous assignments of error, we do not find that the trial court’s factual findings were either manifestly erroneous or clearly wrong. This assignment of error is without merit.

Assignment of Error No. 6: The trial court erred in finding that the defenses of truth, qualified privilege, and absolute privilege did not absolve Ms. Hornot of all liability for defamation.

Truth as a Defense

Ms. Hornot argues that because the allegations she made in her petition in the instant case were truthful, the trial court erred in holding her liable for | ¾1 defamation. As discussed in connection with the previous assignments of error, the trial court made a factual determination that the allegations were not supported by the evidence and were, therefore, false. Also, as previously discussed, we find that there was no manifest error in the trial court’s findings of fact, which were based primarily on a determination of the credibility of the parties. We cannot say that the trial court judge was clearly wrong in her findings. Therefore, the defense of truth was not available to Ms. Hornot after the trial court found that her testimony was not credible. This aspect of her assignment of error is without merit.

Qualified Privilege

Additionally, Ms. Hornot argues that for her to be liable for defaming Mr. Cardenas, she had to have made the allegedly defamatory allegations in her petition with actual malice. She bases this argument on her contention that she is entitled to the privilege set forth in La. R.S. 14:49. That statute provides in relevant part as follows:

A qualified privilege exists and actual malice must be proved, regardless of whether the publication is true or false, in the following situations:
(4) Where the publication or expression is made by an attorney or party in a judicial proceeding.

Although La. R.S. 14:49 is part of the Louisiana Criminal Code, the qualified privileges that it enumerates as defenses for criminal defamation as defined in La. R.S. 14:47 are also applicable to civil defamation cases. See Reporter’s Comments — 1959 to La. R.S. 14:47 and the cases cited in the comments. In the Costello case, the Louisiana Supreme Court stated that “[statements made in the course of a judicial proceeding are subject to a qualified | ¡^privilege if the statements are material to the proceeding, and are made with probable cause and without malice.” 03-1146, p. 16 h. 13, 864 So.2d at 142 n. 13. The issue before us then is whether or not Ms. Hornot made the allegations in her petition with actual malice.

In Tarpley v. Colfax Chronicle, 94-2919 (La.2/17/95), 650 So.2d 738, the Louisiana Supreme Court discussed the standard for proving actual malice as follows:

The actual malice standard is not satisfied merely through showing ill will or “malice” in the ordinary sense of the word. Moreover, actual malice may not be inferred from evidence of personal spite, an intention to injure, or a bad motive. Harte-Hanks Communications, Inc., 491 U.S. at 667, 109 S.Ct. at 2686. Rather, at the very least, actual malice requires that the statement was made with a reckless disregard for the truth. To establish a reckless disregard for the truth, the defamation plaintiff must show that the false publication was made with a “high degree of awareness of probable falsity” or the defendant “entertained serious doubt as to the truth of his publication.” Id.

94-2919, p. 2, 650 So.2d at 738.

In the most recent Louisiana Supreme Court case discussing the meaning of actual malice in a defamation action, Kennedy v. Sheriff of East Baton Rouge, 05-1418 (La.7/10/06), 935 So.2d 669, the Louisiana Supreme Court held that “knowledge of falsity or reckless disregard for truth ... is the standard by which abuse of the conditional privilege asserted in this case is to be determined.” 05-1418, p. 24, 935 So.2d at 686.- Thus, to prove actual malice in a defamation case where a conditional privilege is asserted as a defense, the party claiming defamation must prove that the defamatory statements were made with knowledge that the defamatory statements were false or were made with a reckless disregard for the truth.

19oIn the instant case, the trial court found that there was no factual basis for any of the allegations made by Ms. Hor-not. Thus, the statements were false. Further, one of the allegations, that of the commission of the crime of extortion, was defamatory per se.

From our reading of the record it is clear that Ms. Hornot was not satisfied with the amount of the settlement in her personal injury case. In an attempt to increase the amount she recovered, she decided to file a lawsuit against Mr. Cardenas alleging that he committed fraud, that he coerced her to settle her case, and that she was the subject of criminal extortion. Before trial, when she was being confronted with a defamation suit in Mr. Cardenas’ reconventional demand, she simply abandoned her claims for malpractice and damages. From this action, we can reasonably infer that Ms. Hornot did not actually believe that she had been coerced or induced to settle her case by fraud or criminal actions perpetrated against her. The trial court found that at the trial Ms. Hor-not was not telling the truth but that Mr. Cardenas was. Because the trial court judge determined the facts in this case based on the credibility of the witnesses, we must defer to her findings as to which party was truthful and which was not.

Not only did the trial court judge find Mr. Cardenas to be the truthful party, the facts proven at trial show that Mr. Cardenas never raised the issue of “insurance fraud” until he did so in a letter that he wrote after Ms. Hornot expressed her dissatisfaction with the $95,000.00 mediation settlement. The idea of insurance fraud was derived from Ms. Hornot’s own deposition, which was taken prior to Mr. Cardenas’ representation of Ms. Hornot. In her deposition Ms. Hornot herself raised the specter of insurance fraud as a possible issue in her personal injury case when she explained the lengthy delay in seeking medical treatment for | ¡.¿her injuries. She testified at her deposition that she delayed seeking medical treatment, because she did not want to create a record of a preexisting condition should she apply for medical insurance.

Mr. Cardenas told Ms. Hornot from the beginning that her statement might create problems with her case. The defense in the personal injury case might put her credibility at issue, because an inference could be made that Ms. Hornot might be less than honest. The record shows that Mr. Cardenas discussed this issue with Ms. Hornot, but there is no evidence whatsoever other than Ms. Hornot’s testimony, which the trial court determined was not truthful, that Mr. Cardenas or anyone else ever raised the issue of insurance fraud with Ms. Hornot to coerce her to settle her case.

Further, Mr. Cardenas testified that the reason he wanted to mediate the personal injury case before going to trial was that he wanted to “flesh out” the defenses that would be raised at the trial, not that he wanted to settle Ms. Hornot’s case quickly. This statement is substantiated by the un-refuted evidence that he initially thought a $100,000 recovery would probably be the most that could be expected in Ms. Hor-not’s case given a number of problems that Mr. Cardenas thought the case had. Therefore, it seems perfectly reasonable that Ms. Hornot would readily agree to a settlement offer of $95,000.00.

Based on the record before us, we find that not only did Ms. Hornot knowingly fail to tell the truth in her petition, she also did so with a reckless disregard for the truth. Thus we find that the false allegations in the petition in the instant case were made with actual malice. Ms. Hornot is not entitled to the protection of the qualified privilege that she seeks to use. This aspect of her assignment of error is without merit.

|2sAbsolute Privilege

Ms. Hornot also claims an absolute privilege with respect to the defamatory allegations in the petition in the instant case. She bases her claim of absolute privilege on the provisions of La. R.S. 14:50, which reads in part as follows:

There shall be no prosecution for defamation in the following situations:
(2) When a statement is made by a witness in a judicial proceeding, or in any other legal proceeding where testimony may be required by law, and such statement is reasonably believed by the witness to be relevant to the matter in controversy.

Like La. R.S. 14:49, La. R.S. 14:50 is also found in the Louisiana Criminal Code, but the privileges it establishes can also apply in civil eases. Reporter’s Comment — 1950 to La. R.S. 14:50.

As discussed in connection with the qualified privilege claimed by Ms. Hor-not, we find that Ms. Hornot knew the allegedly defamatory statements made by her were not true. The trial court specifically found no facts to support any of Ms. Hornot’s allegations against Mr. Cardenas. The trial court judge also specifically found that Ms. Hornot had made a statement that was defamatory per se accusing Mr. Cardenas of criminal conduct. Thus, we find that the record before us and the trial court’s findings mandate the conclusion that Ms. Hornot did not make the allegations with a reasonable belief in their truth. Because the statements were false, and because Ms. Hornot knew that they were false or reasonably should have known they were false, the statements could not have been relevant to the matter in controversy.

Although the defamatory allegations made by Ms. Hornot may have been technically “relevant” to her false claims, to grant Ms. Hornot an absolute privilege |afiin the instant case would result in an abuse of the judicial process. We cannot allow a person to make defamatory statements to support a claim for damages when that person knows that the defamatory statements, though possibly relevant to the claim, are false. In our system of justice knowingly false claims cannot be protected by an absolute privilege even though the privilege may technically apply, because such a result would be tantamount to permitting perjury under the guise of an absolute privilege. Thus, Ms. Hornot is not entitled to claim the benefit of absolute privilege.

The defamatory statements in Ms. Hor-not’s petition were not reasonably believed to be relevant to the truth of the matter in controversy, because there was no valid basis upon which the claims could have been truthfully made. This assignment of error relating to absolute privilege is without merit.

Assignment of Error No. 7: The trial court committed manifest error in finding and holding that Mr. Cardenas was entitled to a judgment in his favor and against Ms. Hornot for the full and true sum of Seven Thousand Five Hundred Dollars ($7,500.00).

Ms. Hornot argues that Mr. Cardenas was not entitled to a damage award based on the intentional infliction of emotional distress or to an award of attorney’s fees. In her brief Ms. Hornot assumed that the basis for the award made to Mr. Cardenas was either to compensate him for the intentional infliction of emotional distress or for his attorney’s fees in the instant case.

In the judgment in the instant case, however, the trial court stated that the award was made “[g]iven the time taken to defend this matter.” We do not find that this indicates that the award was made for attorney’s fees. Rather, we find the damages awarded to be general damages incurred by Mr. Cardenas as a result of having a defamatory lawsuit filed against him. When a party proves the publication | ¡,,7of words that are defamatory per se, the element of injury may be presumed. Costello, 08-1146, p. 14, 864 So.2d at 140.

The Louisiana Supreme Court in the Costello case stated that “[t]he injury resulting from a defamatory statement may include nonpecuniary or general damages such as injury to reputation, personal humiliation, embarrassment and mental anguish even when no special damage such as loss of income is claimed.” 03-1146, p. 14, 864 So.2d at 141. See also Lemeshewsky v. Dumaine, 464 So.2d 973, 976 (La. App. 4 Cir.1985). Mr. Cardenas testified at the trial that he suffered from these types of damages. He was particularly concerned about his professional reputation and the effect the suit by Ms. Hornot might have on that. We find that Mr. Cardenas suffered injury from the defamatory allegations made by Ms. Hornot.

We find that Mr. Cardenas was entitled to an award of damages. Therefore, this assignment of error is without merit.

Answer to Appeal

Mr. Cardenas answered the appeal claiming that the damage award in the instant case was abusively low. He suggested that the award should be increased to $50,000.00.

La. Civil Code art. 2324.1 provides that “[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.” The standard for appellate court review of a trial court’s award of general damages was discussed by the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993). The Court stated:

“[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure |s>Rof damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.”

623 So.2d at 1261. See also Reck v. Stevens, 373 So.2d 498 (La.1979).

In the Lemeshewsky case, cited above, this Court stated that “[a]s to quantum, damage awards in defamation cases must of necessity be largely left to the discretion of the trial court and should not be disturbed absent a showing of manifest error.” 464 So.2d at 976. In the instant case, we find that the award is one that a reasonable trier of fact could assess, that the award is supported by the record, that there is no indication of an abuse of discretion by the trial court judge, and that the trial court judge did not abuse her discretion in making the award. Therefore, we decline to adjust the damage award.

DECREE

The assignments of error by Ms. Hornot are without merit, and the answer to the appeal provides no basis for increasing the damage award. The judgment of the trial court is hereby affirmed.

AFFIRMED.

      . The record reflects that Ms. Hornot never signed and returned the copy of the letter. Ms. Hornot later reported Mr. Cardenas to the Louisiana Attorney Disciplinaiy Board’s Office of Disciplinary Counsel, and Mr. Cardenas was found to have violated the Rules of Professional Conduct for attorneys by failing to obtain a signed contingency fee agreement.

      . The record contains references to both fifteen months and to twenty-two months as the time period after the accident during which Ms. Hornot failed to seek medical treatment for her injuries.

      . We acknowledge that there is some difference between the language used in the amended petition and the language used at the beginning of the trial to describe the declaratory judgment that was sought.

      . La. C.C.P. art. 2163 provides in relevant part that "[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.”

      . La. C.C.P. art 927 provides in relevant part:
      A. The objections which may be raised through the peremptory exception include but are not limited to the following:
      (4) No cause of action.
      (5) No right of action, or no interest in the plaintiff to institute the suit.

      . We note that in Ballex v. Naccari, 95-0057 (La.App. 4 Cir. 6/7/95), 657 So.2d 511, this Court even held that the laws on compulsory reconvention and res judicata did not invalidate the jurisprudential rule that an action for defamation arising out of allegations made in judicial proceedings against a party to the proceedings cannot be brought until the proceedings are terminated.