author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee v. Jerwaskay KEENER, Appellant.
    No. 41,246-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Paula C. Marx, Lafayette, Annette F. Roach, Lake Charles, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Marcus R. Patillo, Assistant District Attorney, for Appellee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   WILLIAMS, Judge.

hThe defendant, Jerwaskay Keener, was charged by grand jury indictment with two counts of aggravated rape, violations of LSA-R.S. 14:42(4). Pursuant to a plea agreement, defendant pled guilty to two counts of the reduced charge of simple rape, violations of LSA-R.S. 14:43. The district court sentenced defendant to serve 25 years at hard labor without benefit of parole, probation or suspension of sentence for the first count and 15 years at hard labor without benefits for the second count, to be served consecutively. Defendant’s motion for reconsideration of sentence was denied. Defendant appeals the imposition of consecutive sentences and appeals the sentences imposed as excessive. We affirm the convictions and remand for resentencing in conformity with the plea agreement.

DISCUSSION

The defendant was charged with two counts of aggravated rape for alleged improper sexual conduct with two minor children. Defendant filed a motion to appoint a sanity commission. The psychological evaluations indicated that defendant was mildly mentally retarded, but that he understood the difference between right and wrong at the time of the offenses. After considering the reports submitted by the commission members, the district court found defendant competent to stand trial.

Pursuant to a plea agreement, defendant pled guilty to raping a seven-year-old girl “numerous times” during the period of 2002 to 2003 and to raping an eleven-year-old boy, who was a relative of defendant, in 2001. The plea agreement reduced the original charge on both counts of aggravated rape to simple rape and specified that the sentences for the two | ^counts would be served concurrently. The district court accepted the defendant’s guilty plea and ordered a pre-sentence investigation. Subsequently, the district court sentenced defendant to 25 years at hard labor without benefit of parole, probation or suspension of sentence for the first count and 15 years at hard labor without benefits for the second count, and ordered the sentences to be served consecutively.

The defendant contends the district court erred in imposing consecutive sentences. Defendant argues that the court violated the plea agreement providing for the imposition of concurrent sentences as set forth in the record at the time of the plea.

If a plea agreement has been reached by the parties, then the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. LSA-C.Cr.P. art. 556.1. In determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law. State v. Louis, 94-0761 (La.11/30/94), 645 So.2d 1144. In the context of plea bargains, a defendant may demand specific performance of the state’s promise if he can show that the parties reached an agreement, that he performed his part of the agreement, and that in so doing he relinquished a fundamental right. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443.

During the plea colloquy, the court stated to defendant that the plea agreement provided that “any sentence that I would give you on each count would run concurrently with each other. That’s the agreement.” Thus, the | acourt acknowledged on the record that the plea agreement included the condition that the two sentences imposed would run concurrently. However, at the time of sentencing, the court ordered the sentences to be served consecutively.

The Louisiana Supreme Court recently addressed a similar issue wherein part of a plea bargain was “inadvertently breached” when the trial court failed to impose a concurrent sentence, despite a plea agreement specifying that the sentence imposed would run concurrently with another sentence then being served. State ex rel. Turner v. State, 04-2842 (La.6/24/05), 906 So.2d 399. In that case, the court relied on State v. Tanner, 425 So.2d 760 (La.1983), and State v. Hingle, 242 La. 844, 139 So.2d 205 (1961), both of which held that when the state makes a good faith bargain with a person accused of a crime and the defendant, in reliance on that bargain, relinquishes such a fundamental right as the privilege against self-incrimination, the state cannot repudiate the bargain.

In the present case, the record shows that pursuant to the plea agreement, the defendant entered a plea of guilty to two counts of simple rape and in return the state agreed that the sentences would be served concurrently. However, as in the Turner case, the plea bargain was breached when the district court failed to impose concurrent sentences. Consequently, we must remand this matter and the district court is directed to resentence defendant promptly in conformity with the plea agreement. LSA-C.Cr.P. art. 881.4. See State ex rel. Turner, supra.

[Sentencing

The defendant contends the district court erred in imposing excessive sentences. Defendant argues that the sentences imposed were constitutionally excessive and that the court failed to properly consider mitigating factors.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. I, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, supra.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App. 2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, an appellate court will not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158. Whoever commits the crime of simple rape shall be imprisoned, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than 25 years. LSA-R.S. 14:43(B).

Prior to imposing sentence, the district court reviewed a pre-sentence investigation report, defense counsel’s sentencing memorandum, reports of the two sanity commission doctors who had evaluated the defendant, and “several letters from relatives and friends” of defendant. The court was aware of defendant’s limited education, his brief work history and his past drug use. Referring to Article 894.1, the district court considered as mitigating factors the defendant’s young age, his lack of prior felony convictions or significant criminal history, his claims of sexual abuse as a child, his mother’s substance abuse, and the psychological evaluations indicating that the defendant was “borderline mentally retarded.”

However, the court noted that a number of aggravating factors were | ^applicable, finding that the defendant’s conduct manifested deliberate cruelty to the victims, that defendant knew the victims were particularly vulnerable or incapable of resistance due to their extreme youth and that the defendant used his position as babysitter of the seven-year-old girl to facilitate the commission of the offense. The court considered the physical and psychological trauma suffered by the young victims, including the fact that the seven-year-old girl contracted genital warts (a condition for which there is no cure) so severe as to require surgical removal. The court was also concerned that defendant did not show any remorse, as indicated by his probation interview in which he maintained his innocence even after pleading guilty. Based upon the foregoing circumstances, the record supports the district court’s findings that defendant was in need of correctional treatment or a custodial environment, that a lesser sentence would deprecate the seriousness of the crime and that defendant was likely to commit another offense if not incarcerated for a substantial period of time.

The defendant received a significant reduction in sentencing exposure as a result of the plea agreement. If convicted of the original charges of aggravated rape involving minors under the age of twelve, the defendant would have faced a death sentence or life imprisonment at hard labor without benefits for each count under LSA-R.S. 14:42(D)(2). Instead, by pleading guilty to two counts of simple rape under this plea agreement, the defendant faced a maximum of 25 years at hard labor without benefits for each count, with the sentences to be served concurrently. In addition, we |7note that with regard to the first count, the offense involved multiple incidents for which separate sentences were not imposed. Since defendant received a significant reduction in exposure to confinement and the offense of conviction did not adequately describe his conduct, imposition of the maximum sentence for the pled offense was within the district court’s discretion.

After reviewing the record, we conclude the district court provided ample reasons for imposition of these sentences, which are within the statutory sentencing range for the offenses of conviction. The sentences imposed are neither grossly disproportionate to the seriousness of the offenses committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say that the sentences are constitutionally excessive. The assignment of error lacks merit.

Error Patent

In reviewing the record for error patent, we address the issue of the adequacy of the record regarding the district court’s advisement and defendant’s waiver of his right to confrontation. Before accepting defendant’s guilty plea, the district court advised the defendant of his right to trial by jury, right against self-incrimination, and the right of compulsory process. The trial court also told the defendant, “[Yjou’re entitled to a trial by jury and at that trial your lawyer would have the right to cross-examine or to ask questions of all the state’s witnesses.” However, the court failed to specifically advise the defendant of his right to confront his accusers before | ^accepting the guilty plea.

A valid guilty plea must be a free and voluntary choice by the defendant. A guilty plea will not be considered free and voluntary unless, at the very least, defendant was advised of his constitutional rights against self-incrimination, to a trial by jury and to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Indeed, an express and knowing waiver of those rights must appear on the record, and an unequivocal showing of a free and voluntary waiver cannot be presumed. Boykin, supra; State v. Morrison, 599 So.2d 455 (La.App. 2d Cir.1992).

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. This right provides two types of protections for a criminal defendant: the right physically to face those against him and the right to conduct cross-examination. State v. Anderson, 34,491 (La.App. 2d Cir.4/4/01), 784 So.2d 749, writs denied, 01-1431 (La.4/12/02), 812 So.2d 666, 01-2429 (La.5/24/02), 816 So.2d 303.

In State v. Woods, 402 So.2d 680 (La.1981), involving a similar issue, the district court advised the defendant, “the state must call its witnesses and prove guilt beyond a reasonable doubt” and that he could call witnesses on his own behalf. In Woods, the Louisiana Supreme Court held that the defendant was adequately advised of his right to confrontation. In State v. Battle, 552 So.2d 503 (La.App. 2d Cir.1989), this court found that the district court’s language advising the accused that he was waiving the | flright “to have present and testify against you on these charges the people who are accusing you” was sufficient, although barely, to advise defendant of his right to confrontation under the standard of Woods, supra.

In the present case, although the district court did not expressly advise defendant that he was giving up the right to “confront” his accusers, the court advised defendant of his right, at trial, to cross-examine the state’s witnesses. This language suggests that defendant would be able to physically face and question the witnesses testifying against him at a trial. Applying the analysis of Woods, supra and Battle, supra to the plea colloquy in this case, we find the court’s advisement of defendant’s right to confrontation minimally adequate. Thus, we conclude that defendant’s guilty plea was entered knowingly and voluntarily and uphold his convictions. However, we raise this issue to express our concern over the imprecise language used and to note that the district court’s explanation of this right should inform the defendant of his right to confront and cross-examine witnesses against him as provided in LSA-C.Cr.P. art. 556.1(A)(3).

CONCLUSION

For the foregoing reasons, the defendant’s convictions are affirmed. That portion of the sentence requiring the sentences to be served consecutively is set aside. The case is remanded and the district court is hereby directed to promptly resentence defendant in conformity with the plea agreement by ordering that the sentences imposed shall run concurrently. The sentences are otherwise affirmed.

CONVICTIONS AFFIRMED; REMANDED FOR RESENTENCING.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Jesse Alan SULLIVAN, Appellant.
    No. 41,236-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Jesse Alan Sullivan, Pro Se.
    Annette Fuller Roach, Lake Charles, J. Clay Carroll, for Appellant.
    Walter E. May, Jr., District Attorney, Tammy Lenn Gantt, Robert Andrew Moore, Assistant District Attorney, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   LOLLEY, J.

LThe defendant, Jesse Sullivan (“Sullivan”), appeals a judgment by the Second Judicial District Court, Parish of Bienville, State of Louisiana. A jury found him guilty of second degree kidnapping and aggravated assault from an incident involving his ex-girlfriend. Sullivan was sentenced to 15 years imprisonment, the first 2 years to be served without benefit of parole, probation, or suspension of sentence on the second degree kidnapping conviction; and 6 months on the aggravated assault conviction to run concurrently. Sullivan’s court-appointed appellate attorney filed an Anders brief and notified Sullivan of his right to file a pro se brief. Sullivan did not respond to the notice. For the following reasons, we affirm the convictions and sentences.

FACTS

On August 7, 2003, Sullivan’s ex-girlfriend, Amber Peoples, was in the process of moving out of the trailer she previously shared with Sullivan. Peoples was accompanied by her stepsister, Carla Perot, who helped her gather her belongings while Sullivan was out. At some point Sullivan returned and grabbed Peoples, pushing her into the trailer. Perot, who managed to get to her car, called the police.

Peoples testified that she was pushed onto the couch, at which time Sullivan removed a gun from his pocket. Peoples got up and went to the kitchen to continue to pack. Peoples reached for a knife after Sullivan struck her across the face. Next, according to Peoples, Sullivan pointed the gun at her and fired, fortunately missing her.

1 ¡.Sullivan was originally charged with second degree kidnapping and aggravated assault with a firearm. After a three-day trial, the jury returned a verdict of second degree kidnapping as charged and a responsive verdict of aggravated assault. Sullivan filed motions for new trial and post-verdict judgment of acquittal which were denied. No motion for reconsideration of sentence was filed. This appeal ensued.

Sullivan’s court-appointed appellate attorney filed a brief and motion in this court stating that she had conscientiously and thoroughly reviewed the trial court record and found no non-frivolous issues to raise on appeal, nor any trial court ruling which arguably would support an appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Mouton, 95-0981 (La.04/28/95), 653 So.2d 1176; and State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). In addition to summarizing the procedural history, appeal counsel’s brief provided an assessment of whether the appeal was worth pursuing. State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

In accordance with Anders, Mouton and Benjamin, supra, appellate defense counsel also notified Sullivan of his right to file a pro se brief and sought to withdraw from the case. This court held the motion to withdraw in abeyance and advised Sullivan of his right to file an appellate brief within 30 days of the April 5, 2006 order. Sullivan did not respond to this notice.

The record contains minutes of the court proceedings, the amended bill of information, and transcripts of the trial and sentencing hearings. Sullivan was charged via a bill of information which was signed by an 13assistant district attorney. It was subsequently amended. Sullivan was present in court and represented by counsel at all important stages of the proceedings. A review of the transcript reveals there was sufficient evidence on which the jury could base its verdicts. The sentences imposed are within the allowed ranges of imprisonment.

Even if this court were to review the constitutionality of Sullivan’s sentences, there would be no merit to claims of excessiveness. The statutory range for the offense of second degree kidnapping is not less than 5 nor more than 40 years, with at least 2 years without benefit of parole, probation or suspension of sentence. The 15-year sentence neither shocks the sense of justice, nor constitutes a purposeless and needless infliction of pain and suffering. Notably, the trial court did not wish to sentence Sullivan to any more than what was offered during a plea colloquy, despite the longer sentence recommendation in the pre-sentence investigation report.

The range for aggravated assault is imprisonment up to six months and/or a fine. The trial court imposed the maximum term of imprisonment for this offense, but no fine. Further, the trial court ordered that the sentences be served concurrently. Our independent review disclosed no non-frivolous issues and no rulings which arguably support an appeal.

ERRORS PATENT

We also examined the record for errors patent. Because the trial court did not indicate that Sullivan’s second degree kidnapping sentence was to |4be served at hard labor, we find that the sentence imposed is illegally lenient. Under the authority of La. C. Cr. P. art. 882, we amend the sentence imposed by the trial court to affirmatively indicate that the sentence for second degree kidnapping be served at hard labor. The trial court is directed to make an entry in the minutes reflecting this amendment.

CONCLUSION

On review, we affirm both convictions, and, as amended, affirm the sentences of Jesse Alan Sullivan. Appellate counsel’s motion to withdraw is granted.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED AS AMENDED.

      . As noted in the appellate counsel’s brief, the trial judge stated he was sentencing Sullivan for simple assault instead of aggravated assault, but imposed a sentence applicable only to the greater offense of aggravated assault.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Shon P. SHAW, Appellant.
    No. 41,233-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Shon P. Shaw, Pro Se.
    Indigent Defender Board by Mary L. Harried, Shreveport, Louisiana Appellate Project by Edward K. Bauman, Lake Charles, for Appellant.
    Paul J. Carmouche, District Attorney, Lea R. Hall, Catherine M. Estopinal, Assistant District Attorneys, for Appellee.

      Before CARAWAY, DREW and MOORE, JJ.
   MOORE, J.

hShon Shaw was charged by bill of information with one count of attempted second degree murder and two counts each of second degree kidnapping and aggravated criminal damage to property arising from an incident in which he used his mother’s car to ram his former girlfriend off the road. A jury convicted him of attempted manslaughter, and found him guilty as charged on all other counts. Adjudicated a third felony offender, Shaw was sentenced to 40 years at hard labor for attempted manslaughter, 80 years at hard labor without benefits for the second degree kidnappings, and 30 years at hard labor on the aggravated criminal damage to property charges, with all sentences to run concurrently. He now appeals: through counsel he urges insufficient evidence to convict and an illegal sentence, and by pro se brief he urges ineffective assistance of counsel and other sentencing errors. We affirm.

Factual Background

The kidnappings and car chase occurred shortly before midnight on June 26, 2004, on Red Fox Trail in west Shreveport. The incident began, however, earlier in the evening at the IHOP on Pines Road, where Karen Harris and some girlfriends were having a birthday dinner for one of the women. Karen had just called off a yearlong relationship with Shaw some two weeks earlier, but on June 26 she allowed Shaw to drive her home from her job at Church’s Fried Chicken and they talked about getting back together. Karen was also good friends with Shaw’s sister, Sheryl Jeter, who was present at the birthday dinner at IHOP.

| ¡¡Karen and Sheryl, as well as two of the other women present, Marvette Jones and Danielle Adams, testified that during the course of the evening, Shaw kept calling on his sister Sheryl’s cell phone and asking to speak to Karen. Karen refused to meet with him that night, and he got mad; the other women confirmed that he sounded angry and that Karen quit taking his calls. At one point Shaw actually drove to IHOP looking for her, but she hid in the restroom until the police were called and Shaw left the parking lot.

Shaw went straight to his mother Jessica Jeter’s house and told her that she needed to phone Karen on Sheryl’s cell. Mrs. Jeter complied, telling Sheryl they needed to bring Karen home (to Mrs. Jet-er’s house). Shaw suddenly snatched the phone from his mother, screamed at Sheryl and Karen, and started hitting his mother in the head with the phone. Hearing this, Sheryl asked the women to come home with her; perhaps imprudently, they agreed. Sheryl let Shana Taylor drive her (Sheryl’s) Lexus, while Karen and Mar-vette followed in Danielle’s Nissan Atima. Shana pulled in the driveway behind Mrs. Jeter’s Lincoln Town Car; Danielle parked the Atima in the street, at the end of the driveway.

When the women arrived, they saw Mrs. Jeter come out of the house to speak to Karen. However, Shaw came out and began shouting at his mother to get into the car; there were also words between Shaw and Karen, who remained in the back seat of the Atima. When Mrs. Jeter refused to get into the Town Car, he physically pushed her in and then jumped into the driver’s seat. Danielle suspected he was going to back out, so she started to Ldrive off, going down Red Fox Trail. With his mother still in the front seat, Shaw backed the Town Car around the Lexus, pulled onto Red Fox Trail and started to follow the Atima.

At the wheel of the Altima, Danielle could see that Shaw was following them; Karen even called 911 on one of the women’s cell phones. Suddenly they felt a bump as the Town Car rammed them from behind, knocking them off the road and into a pine tree. Detective Tom Oster, who investigated the incident, testified that the Altima was “accordioned” with the rear end pushed up to the back seat area; the women testified that the doors would not open, so they had to climb out through a broken window. Karen sustained two broken bones in her neck and a bruised thigh and calf; she testified that she could hardly stand on her own. However, she saw Shaw get out of the Town Car and start walking toward her. Because of her injuries, she was unable to run away. She testified that Shaw started “swinging on” her and struck her in the back with a tree branch. Afraid he would hurt her worse, Karen agreed to go with him.

He took her on foot between some houses and into a wooded area, intermittently dragging her by the arm and hitting her. He led her behind the fire station on West 70th Street and Turner Elementary School, until they could hear police sirens drawing near. At this point she convinced him to let her go, and she ran to the Diamond Shamrock gas station near the Inner Loop to call the police.

As noted, Karen sustained two broken bones in her neck and multiple leg injuries; she testified that she took Vk months to recover. Mrs. Jeter | ¿sustained a broken pelvis and head injuries; she testified she could not walk for several months. Both Mrs. Jeter and Danielle testified that their cars were totaled in the collision.

Over the next few days, Detective Oster interviewed the three women in the Altima and Mrs. Jeter and, on June 29, obtained an arrest warrant charging Shaw with four counts of attempted first degree murder. Shaw turned himself in to police on July 14 and waived his Miranda rights. In a recorded statement, he insisted he was not mad at Karen and denied calling her multiple times at IHOP. He said the women had all been at his mother’s house and they were leaving to eat at the Whataburger on Bert Kouns when he lost control of his mother’s car and accidentally rear-ended the Altima. He denied dragging Karen into the woods or harming her in any way, and said he left the scene because he “panicked” and did not know she was hurt. He also denied forcing his mother into the Town Car; insisting she was unconscious “the whole time,” he had no idea why she would say he had dragged Karen into the woods and hit her with a tree branch.

Shaw was initially charged with four counts of attempted first degree murder. In July 2005, the state amended the bill of information to charge him with the attempted second degree murder of Karen; the second degree kidnapping of Karen and of Mrs. Jeter; and the aggravated criminal property damage of Mrs. Jeter’s Town Car and of Danielle’s Altima. After a two-day trial, the jury returned the responsive verdict of attempted manslaughter of Karen, and convicted him as charged on the remaining counts.

|RThe state then charged Shaw as a third felony offender. After an adjudication hearing, the court found him guilty as charged and sentenced him to 40 years at hard labor for the attempted manslaughter. The court also sentenced him to 80 years at hard labor, without benefits, for each count of second degree kidnapping, and 30 years at hard labor for each count of aggravated criminal damage to property. All sentences were to be served concurrently. After the court denied Shaw’s motions for post verdict judgment of acquittal, new trial and reconsideration of sentence, Shaw took this appeal.

Discussion: Sufficiency of the Evidence

By Ms first two assignments of error, Shaw urges the evidence was insufficient to sustain all convictions; ergo, the district court should have granted his motion for post verdict judgment of acquittal or new trial. Specifically, he contends the state failed to prove beyond a reasonable doubt that he had the specific intent to kill or inflict great bodily harm upon Karen or that he intentionally damaged both vehicles. In support he cites his own statement to police, in which he claimed the Town Car skidded on a wet road and accidentally rear-ended the Altima, and suggests that most of the damage to the Altima occurred after it left the road and struck a tree. He also contends the second degree Mdnapping convictions cannot stand because “Karen was not injured until after the accident” and “Ms. Jeter admitted that she never resisted or told Shon that she did not want to leave.”

The state responds that Shaw’s use of a speeding car and then a tree branch proved his specific intent to kill Karen. The state argues that 1 fiphotographs of the wrecked Altima, showing its rear end crushed all the way to the back seat where Karen was sitting, undermine any claim that the accident was minor and the damage mostly the result of hitting a tree. Further, the state cites Mrs. Jeter’s testimony (that Shaw struck her first with a telephone and then with his fists, and then shoved her into the Town Car) and that of the women in the Altima (that Shaw dragged the injured and protesting Karen into the woods) supplied every essential element of the kidnapping charges. Finally, the state cites testimony of Ms. Jeter and Marvette Jones that the Town Car accelerated before ramming the Altima as sufficient to refute any claim of an accident.

The standard of appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for. that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. The trier of fact is charged to make a credibility evaluation and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on, that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Sosa, 2005-0213 (La.1/19/06), 921 So.2d 94. The trier of fact may therefore accept or reject, in whole or in part, the testimony |7of any witness. State v. Updite, 38,423 (La.App. 2 Cir. 6/23/04), 877 So.2d 216, writ denied, 2004-1866 (La.11/24/04), 888 So.2d 229, and citations therein.

To support a conviction for attempted manslaughter, the state must prove the defendant specifically intended to kill the victim and committed an overt act in furtherance of that goal. State v. Mitchell, 39,905 (La.App. 2 Cir. 2/17/05), 894 So.2d 1240, writ denied, 2005-0741 (La.6/3/05), 903 So.2d 457. Specific intent is a state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his acts or omissions. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Martin, 39,846 (La.App. 2 Cir. 8/17/05), 913 So.2d 863, writ denied, 2006-0110 (La.6/14/06), 929 So.2d 1267.

In State v. Mitchell, supra, this court found that accelerating an automobile in the direction of a pedestrian was sufficient to prove a specific intent to kill. In the instant case, Karen was not a pedestrian, but she was a backseat passenger in the Altima that Shaw rammed from behind. Detective Oster testified, and the crime scene photos showed, that the rear bumper of the Altima was pushed almost into the back seat. This evidence is sufficient to show a specific intent to kill Karen, as well as an overt act in furtherance of that goal.

To prove second degree kidnapping under the facts of this case, the state must prove that the defendant forcibly seized and carried a person from Rone place to another, and that the victim was physically injured or sexually abused. La. R.S. 14:44.1 A(3), B(1); State v. Davies, 35,783 (La.App. 2 Cir. 4/5/02), 813 So.2d 1262, writ denied, 2002-1564 (La.5/9/03), 843 So.2d 389. In his statement to Det. Parker, Shaw maintained that he had no argument with his mother before they got in the Town Car, and no knowledge of how she got hurt. However, Mrs. Jeter testified that her son beat her repeatedly with his fists and a telephone, and forced her against her will into the car; other witnesses corroborated that she did not willingly get into the Town Car with him. It is uncontested that Mrs. Jeter sustained a broken pelvis in the collision. This evidence is sufficient to prove the second degree kidnapping of Mrs. Jeter.

Similarly, Shaw told Det. Parker that he never laid a hand on Karen; however, he could not explain how she wound up at the Diamond Shamrock station. Notably, Karen, Mrs. Jeter, Danielle and Marvette uniformly testified that Shaw dragged Karen from the scene of the crash and, despite her obvious injuries, repeatedly thrashed her with a pine bough. This evidence is sufficient to prove the second degree kidnapping of Karen.

Aggravated criminal damage to property is defined as the intentional damaging of any structure, watercraft, or movable, wherein it is foreseeable that human life might be endangered, by any means other than fire or explosion. La. R.S. 14:55. In State v. Bates, 37,282 (La.App. 2 Cir. 10/16/03), 859 So.2d 841, writ denied, 2004-0141 (La.5/21/04), 874 So.2d 173, this court held that ramming a vehicle at an accelerated speed, and forcing that vehicle off the road and into a light pole, with the result that the | goccupants sustained cuts, bruises and concussions, was sufficient evidence from which a trier of fact could find the essential elements of aggravated criminal damage to property. The facts herein are virtually identical. Given the unanimous testimony of Karen, Mrs. Jeter, Danielle and Marvette, the crime scene photos and the testimony of Det. Oster, the jury could rationally find that this collision was no mere accident, and that the lives of Karen and Mrs. Jeter would be endangered.

This assignment of error lacks merit.

Illegal Sentence

By his third assignment of error, Shaw urges his sentences under the habitual offender statute are illegal. Citing State ex rel. Porter v. Butler, 573 So.2d 1106 (La.1991), he contends that multiple counts arising out of a single criminal act or episode cannot be enhanced under the statute, La. R.S. 15:529.1. He concludes that the sentences should be vacated and the case remanded for resentencing with the multiple offender bill applied to only one count.

The state responds that State ex rel. Porter v. Butler, supra, is “no longer good law,” as it was specifically overruled in State v. Johnson, 2003-2993 (La.10/19/04), 884 So.2d 568, and legislatively suppressed by 2005 La. Acts No. 218. The state shows that since the amendment, R.S. 15:529.1 B now provides, “Multiple convictions obtained on the same day prior to October 19, 2004, shall be counted as one conviction for the purpose of this Section.”

|inThe state’s position has merit. In State v. Johnson, supra, the court held that its earlier interpretation of the 1982 version of R.S. 15:529.1 was incorrect. The 2005 amendment in fact removed any sequential requirement for enhanced penalties in sentencing multiple offenders, if the convictions were obtained after October 19, 2004. While State v. Johnson did not explicitly overrule State ex rel. Porter, supra, it did overrule State ex rel. Mims v. Butler, 601 So.2d 649 (La.1992), which approved the rationale of State ex rel. Porter. As a result, the district court did not err in applying third felony enhancement to all five criminal charges arising out of Shaw’s criminal conduct. This assignment of error lacks merit.

Supplemental Assignments of Eiror

By pro se brief, Shaw has raised four supplemental assignments of error. The first urges that the trial judge erred in inquiring into Shaw’s right to testify, and defense counsel frustrated that right, after he “unequivocally made known his desire that he will testify.” He contends that the judge’s questioning violated his constitutional rights under State v. Hampton, 2000-0522 (La.3/22/02), 818 So.2d 720. His second assignment urges that this error is “not amenable to harmless error analysis.” Id.; State v. Dauzart, 99-3471 (La.10/30/2000), 769 So.2d 1206.

Shaw’s argument lacks factual basis, as he stated on the record that he chose not to testify. Notably, both State v. Hampton and State v. Dauzart, supra, were applications for post conviction relief (“PCR”). Claims of ineffective assistance of counsel are more properly raised by application for PCR, as that procedure creates the opportunity for a full evidentia-ry hearing under La. C. Cr. P. art. 930. State ex rel. Bailey v. City of West Monroe, 418 So.2d 570 (La.1982). Shaw’s brief is not entirely clear, but he appears to suggest that trial counsel was ineffective for failing to allow him to testify and for failing to object to the trial judge’s inquiry. Given his comment, outside the jury’s presence, that he elected not to testify, the instant record is simply insufficient to address Shaw’s implicit claim of ineffective assistance. These assignments lack merit.

By his third supplemental assignment, Shaw urges the district court erred in sentencing him as a habitual offender. He contends, without elaboration, that the court “did not state for the record * * * what prior conviction or convictions will be used for sentencing enhancement.” The habitual offender bill of information, however, alleged that Shaw pled guilty to possession of a Schedule II controlled dangerous substance in June 1994 and to unauthorized use of a movable in January 1998, thus making him a third felony offender. At the habitual offender hearing in August 2005, the state introduced copies of these bills of information and court minutes without defense objection. Corporal Van Zandt qualified as an expert in fingerprint identification and confirmed that the prints on the prior bills matched Shaw’s. Contrary to Shaw’s contention on appeal, the district court clearly found the June 1994 and January 1998 guilty pleas to be valid predicate offenses. Shaw has not shown any irregularity under R.S. 15:529.1 or State v. Shelton, 92-3070 (La.7/1/93), 621 So.2d 769. This assignment lacks merit.

By his final supplemental assignment of error, Shaw urges the district court erred in designating a particular place of commitment. He shows that at sentencing, the court ordered him “remanded to the Deputy Sheriff for transfer to Department of Corrections!,] Angola.” He contends this violated La. R.S. 15:824 A: “[A]ny individual subject to confinement in a state penal or correctional institution shall be committed to the Louisiana Department of Public Safety and Corrections and not to any particular institution within the jurisdiction of the department.” He concludes that the case should be remanded for resentencing.

In the recent case of State v. King, 41,083 (La.App. 2 Cir. 6/28/06), 935 So.2d 354, the district court sentenced the defendant as a second felony offender and remanded him “to the custody of the sheriff for transfer to the Department of Corrections, Angola.” On appeal, the defendant contended the reference to Angola was error, citing R.S. 15:824 A. We found that as a second felony offender, subject to 49$ to 198 years at hard labor, the defendant was properly committed to the Department of Public Safety and Corrections regardless of the court’s gratuitous reference to Angola. La. R.S. 15:824 C. “The use of the designation ‘Angola’ at the end of the sentence was obviously used for emphasis only and was not in error.” Id. Shaw’s argument presents nothing to dissuade us from this conclusion. This assignment of error lacks merit.

113Conclusion

On error patent review, we notice that the sentence for attempted manslaughter is illegally lenient in that it does not deny the benefits of probation, parole or suspension of sentence, as are the sentences for aggravated criminal damage to property in that they do not deny the benefit or probation or suspension of sentence. However, these omissions are automatically corrected by the operation of La. R.S. 15:301.1. State v. Cooper, 38,743 (La.App. 2 Cir. 9/22/04), 882 So.2d 657.

We have reviewed the entire record and find nothing else we consider to be error patent. For the reasons expressed, the convictions, third felony adjudication and sentences are affirmed.

AFFIRMED.

      . Although the jurisprudence prior to State v. Johnson was not uniform, some cases reasoned that R.S. 15:529.1 B prohibited the double-counting only of “predicate offenses" obtained on the same day and allowed the enhancement of multiple "instant offenses.” See, e.g., State v. Normandin, 32,927 (La.App. 2 Cir. 12/22/99), 750 So.2d 321, writ denied, 2000-0202 (La.9/29/00), 769 So.2d 550; State v. Brooks, 99-478 (La.App. 3 Cir. 12/8/99), 756 So.2d 336, writ denied, 2000-1492 (La.5/25/01), 792 So.2d 750.


author: GASKINS, J.

text:
    Theresa PAYNE, Plaintiff-Applicant v. Libbey GLASS, Defendant-Respondent.
    No. 41,232-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Lacey P. Wallace, Bossier City, for Applicant.
    Eskridge R. Smith, Jr., Bossier City, Linda Lea Smith, Cynthia L. Carroll, for Respondent.
    Before GASKINS, PEATROSS and DREW, JJ.
   GASKINS, J.

| Nlie trial court denied a motion for summary judgment filed on behalf of Theresa Payne. Ms. Payne filed a writ application seeking review of that decision. This court granted the application. For the following reasons, we reverse the trial court decision, grant summary judgment in favor of Ms. Payne, and dismiss the action of nullity filed by Libbey Glass, Inc. We also remand for a determination of Ms. Payne’s entitlement to attorney fees.

FACTS

On December 3, 2004, Theresa Payne filed suit against Libbey Glass, Inc. (“Lib-bey”) in the Shreveport City Court. Ms. Payne alleged that she was an employee of Libbey, and claimed that Libbey failed to pay her wages for July 4, Labor Day, and for one week of vacation pay, all in 2004. Ms. Payne attached to her petition a copy of a demand letter she claimed that she sent to Libbey in September 2004, without effect. This petition was served upon Lib-bey at its factory in Shreveport through Peter Williams, Human Resources Manager.

Libbey filed an answer to the petition, alleging that it did not owe Ms. Payne the amounts demanded. In a letter of explanation attached to its answer, Libbey (through “Jennifer Warner, Human Resources”) claimed that it had paid Ms. Payne — prior to the filing of the lawsuit— for the July 4 and Labor Day holidays in 2004, for one additional day as a holiday, and for 48 hours of vacation pay. Libbey also asserted that Ms. Payne was still employed by Libbey. Attached to Libbey’s answer were payroll registers Lfrom November 24, 2004, purporting to show payment for 48 hours of “Hly Vacation” pay in the amount of $328.01, and 24 hours of “Holiday” pay in the amount of $221.75.

Trial was scheduled for January 20, 2005. The minutes of court reflect that the plaintiff was present, but Libbey made no appearance. The judge required Ms. Payne to ensure that service of process was made upon Libbey at its proper agent for service. Ms. Payne amended her claim’s service information; this time the claim was served on Libbey on January 31, 2005, through its agent, CT Corporation in Baton Rouge.

Trial was scheduled for March 10, 2005. On that date, Ms. Payne appeared, but Libbey again did not make an appearance. The minutes of court reflect:

Case on the docket for default and called. Plaintiff Theresa Payne present and testified. Defendant Libby (sic) Glass not represented by an attorney nor agent. Copy of 2 check stubs and copy of bank • statement of Theresa Payne filed into the record. Judgment rendered in favor of plaintiff in the amount of $1,588.00 plus court cost and interest ...

There is no transcript of the trial, but the bank statement and check stubs referred to in the minute entry are included in the record. The statement, covering the month beginning on November 23, 2004, shows two deposits by Libbey into Ms. Payne’s account credited on November 26, 2004, in the amounts of $328.01 and $221.75. Notice of the trial court’s judgment was mailed to Libbey on March 10, 2005.

Approximately two months later, on May 11, 2005, a letter was filed into the record which was written by Peter Williams, “Human Resources Manager” at Libbey. He acknowledged that Libbey had failed to answer or 13timely respond to Ms. Payne’s petition after it had been properly served, but asked the judge to review Libbey’s original answer anyway. Libbey again asserted in its letter that it had paid Ms. Payne the amounts she claimed to be owed prior to the filing of her lawsuit and asked the court to recall its judgment in favor of Ms. Payne.

Although clearly untimely as a motion for new trial, the trial judge treated the document as timely filed and fixed the matter for a hearing on July 8, 2005. The minutes of court show that both Ms. Payne and Libbey, through its “agents,” Jennifer Warner, appeared at this hearing. The court continued the hearing on the motion for new trial until July 14, 2005.

The minutes of court for July 14, 2005, reflect:

Case on the docket for motion for new trial. Attorney Lacey Wallace present on behalf of plaintiff Theresa Payne present. Defendant Libbey Glass, Inc. failed to appear and not represented. Order rescinding, revoking and voiding the motion for new trial signed ...

Notice of this judgment was mailed to Libbey on July 15, 2005. Libbey took no appeal and sought no other review.

On August 12, 2005, Libbey filed an action of nullity in the Shreveport City Court. Libbey asserted that Ms. Payne obtained judgment against it through fraud or ill practices. Specifically, Libbey argued that it paid Ms. Payne the wages she demanded prior to the filing of her lawsuit and that she knew that fact when she filed suit. Ms. Payne answered the lawsuit and denied that she obtained the original judgment through fraud or ill practices.

| ¿Ms. Payne filed a motion for summary judgment. She asked the court to dismiss Libbey’s action of nullity on the grounds that Libbey forfeited its right to raise these defenses by neglecting to defend itself in the original action. According to her memo in support of her motion, she attached the entire record in the earlier proceeding that led to the judgment. Lib-bey opposed Ms. Payne’s motion for summary judgment; the company did not attach any evidence to its opposition. The court held a hearing on the motion in February 2006 and denied the motion. Ms. Payne sought supervisory review of that ruling, and this court granted certio-rari.

LEGAL PRINCIPLES

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991). A court must grant a motion for summary judgment “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 mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is favored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2).

The party opposing summary judgment cannot rest on the mere allegations or denials in his pleadings, but must show that he has evidence which, if believed, could satisfy his evidentiary burden of proof at trial. If he has no such evidence, then there is no genuine issue of material fact, and |fithe movant is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 355.

Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 2005-1095 (La.3/10/06), 923 So.2d 627.

A final judgment obtained by fraud or ill practices may be annulled. La. C.C.P. art. 2004. In Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762, the Louisiana Supreme Court stated:

Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices, and is thus subject to nullification: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether enforcement of the judgment would be unconscionable or inequitable.

While the law is clear that a final judgment obtained by fraud or ill practices may be annulled under La. C.C.P. art. 2004, the rule is well-settled that he who seeks to have a judgment against him set aside must allege and prove that he had good reasons for his failure to appear and timely plead. In other words, he must allege and prove facts which would excuse his failure to plead any defense he might have had. Pryor v. Gions, 188 So.2d 739 (La.App. 2d Cir.1966).

The absence of a valid and sufficient reason for a party’s failure to defend a suit in which a default judgment has been taken, when defenses could and should have been pleaded, precludes that party from later | fimaintaining an action for nullity of the judgment for fraud or ill practices based on those defenses. Phillips v. Patin, 517 So.2d 190 (La.App. 1st Cir.1987). See also State, Through Department of Health and Human Resources, Office of Family Sec., in the Interest of Brown v. Beauchamp, 473 So.2d 323 (La.App. 1st Cir.1985), writ denied, 477 So.2d 1125 (La.1985); State, Department of Social Services, Office of Family Support in the Interest of Glass v. Robinson, 31,025 (La.App. 2d Cir.9/23/98), 718 So.2d 609, writ not considered, 1998-2704 (La.12/18/98), 731 So.2d 277; Johnson v. Jones-Journet, 320 So.2d 533 (La.1975).

In State, Department of Social Services, Office of Family Support in the Interest of Glass v. Robinson, supra, this court explained:

Furthermore, a party seeking an annulment must demonstrate how he was prevented or excused from asserting any defenses he may have had, i.e., that he was deprived of the knowledge of the existence of the defense relied on, or the opportunity to present it, by some fraud or ill practice on the part of the other party.
Our courts have also examined each case from an equitable viewpoint to ascertain whether allowing the judgment to stand would be inequitable or unconscionable considering the practice by which the party was able to obtain the judgment. Thus the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.
Our jurisprudence is equally clear, however, that an action for nullity is not a substitute for an appeal from a default judgment, nor is it the solution to legal rights lost through one party’s negligence or failure to act. “It is also not unconscionable or inequitable to enforce a default judgment even though a | defendant had a valid defense but failed to timely assert it.” Furthermore, a default judgment, otherwise legally valid, cannot be set aside and avoided for the purpose of affording a defendant an opportunity to offer a defense solely because that judgment is erroneous and such action would be in furtherance of justice. [Citations omitted.]

DISCUSSION

In this case, we find Libbey’s arguments in favor of its action for nullity to be unpersuasive. The record clearly shows that Libbey received timely notice of this claim. Although there was initially a mix-up about the proper address for service of Ms. Payne’s petition, the trial judge recognized the error and required Ms. Payne to serve the defendant at the proper location. Having received notice at the proper address, the defendant took no action to defend the lawsuit at the trial. Accordingly, after the presentation of Ms. Payne’s evidence, a default judgment was entered.

In Louisiana Safety Association of Timbermen Self-Insurers Fund v. Temlaco, Inc., 39,459 (La.App. 2d Cir.4/28/05), 903 So.2d 492, this court stated:

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. LSA-C.C.P. art. 1702. A prima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence to the same extent as if the allegations had been specifically denied. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at trial.
An appellate court’s review of a default judgment is restricted to a determination of the sufficiency of the evidence offered in support of the judgment. Generally, to obtain a reversal of a default judgment, a defendant must overcome the presumption that the judgment has been rendered on sufficient evidence and is correct. However, this presumption does not attach when the record upon which the judgment was rendered indicates otherwise. [Citations omitted.]

|sIn the instant case, there is no transcript of the trial nor a narrative agreed upon by the parties concerning what transpired at the trial. The absence of these materials is imputable to Libbey in this case; on review, this court applies the presumption that the trial court’s judgment is supported by competent evidence and that it is correct. See, e.g., Creech v. Creech, 29,499 (La.App. 2d Cir.5/7/97), 694 So.2d 589.

The defendant’s answer to the lawsuit alleged that in November 2004, it paid Ms. Payne the amounts allegedly owed prior to the filing of her lawsuit. At trial, Ms. Payne introduced into evidence her November bank statement containing these deposits clearly originating with Libbey. The trial judge had evidence showing that Libbey paid these amounts to Ms. Payne on the dates asserted by Libbey in its answer prior to rendering judgment in favor of Ms. Payne. In the absence of a transcript of the trial, it is impossible to know what other evidence the trial judge heard, but the evidence affirmatively shows that Ms. Payne did not try to hide from the trial court the November 2004 payments from Libbey.

Subsequently, Libbey made an application to the trial court for a new trial, again urging that it had already paid Ms. Payne the wages she sought in her lawsuit. Although Libbey’s request was made long after the delay for filing such a request set by La. C.C.P. art. 4907, and long after the delay for filing an appeal set by La. C.C.P. art. 5002, the trial court nevertheless opted to entertain evidence from Libbey on the issues forming the substance of Lib-bey’s action of nullity. However, despite adequate notice and this |flsecond opportunity to appear, Libbey failed to attend the scheduled hearing on the motion for new trial.

In response to an action for wages, the claim that wages have already been paid is a substantive defense that is ultimately decided by findings made by the trier of fact. Libbey had two opportunities—one of which it was granted despite an untimely request—to present facts to the district court in support of its defense. The defendant failed both times to appear and present those facts it alleged in opposition to Ms. Payne’s demand. The defendant has offered no explanation for its failure to appear and defend against Ms. Payne’s claims. The record affirmatively shows that at the trial of this matter, Ms. Payne did not try to hide from the trial court the November 2004 deposits from Libbey; she introduced into evidence her bank statement showing that those deposits were made.

The record reveals no other indication regarding the basis for the trial court’s ruling in favor of Ms. Payne, but there is no evidence that Ms. Payne acted in bad faith in obtaining the judgment. Certainly there is nothing in this record that suggests that any act of Ms. Payne prevented Libbey from raising any defense that it may have had. Libbey has failed to demonstrate that the default judgment against it was obtained through fraud or ill | mpractices. The circumstances under which the judgment was rendered do not show a deprivation of the legal rights of Libbey. The company has not shown any factors demonstrating that it was prevented or excused from asserting its defenses. Further, Libbey has failed to show that the enforcement of the judgment would be unconscionable or inequitable. As stated above, it is not unconscionable or inequitable to enforce a default judgment even though the defendant had a valid defense and failed to timely assert it, and an action for nullity cannot be a substitute for an appeal. Under these circumstances, we conclude that Libbey is improperly using this action for nullity as a substitute for an appeal that it failed to request timely in the original proceeding. Accordingly, Ms. Payne is entitled to have her motion for summary judgment granted, dismissing Libbey’s action for nullity.

La. C.C.P. art. 2004 provides that the prevailing party in a nullity action brought under this article may be awarded attorney fees. In the plaintiffs motion for summary judgment and in her brief to this court, she requests attorney fees. From this record we are unable to assess the amount of time plaintiffs attorney worked on this case. We, therefore, remand the matter to the trial court to determine reasonable attorney fees.

CONCLUSION

For the reasons, stated above, we reverse the judgment of the trial court denying the plaintiffs motion for summary judgment. Summary judgment is hereby granted in favor of Theresa Payne, dismissing Libbey’s _[Jiaction for nullity. Costs in this court are assessed to Libbey. This matter is remanded to the trial court to determine reasonable attorney fees.

REVERSED AND REMANDED.

      . It would appear that the plaintiff made these allegations after being terminated from her employment with Libbey. However, she never said that her employment at Libbey had terminated. At the time Libbey answered the plaintiff’s pleadings, it contended that she was still legally an employee of Libbey and had not yet been terminated.

      . We note that there are several possibilities for the trial court’s awarding $1,588.00 in damages. While Libbey may have drafted a check to Ms. Payne the week prior to her filing suit, she may not have received the payment, or knowledge of the payment, prior to her instituting suit. There also may have been a discrepancy between the amount paid and the amount due to Ms. Payne. Further, Ms. Payne, although paid for her work time, may have been owed penalties due under La. R.S. 23:631-632 arising from Libbey's almost two-month delay in payment after written demand had been made.


text:
    STERIFX, INC., Plaintiff-Appellant v. Ernest G. RODEN, Defendant-Appellee.
    No. 41,383-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2006.

      Hargrove, Smelley, Strickland & Langley, by Glenn L. Langley, T. Issac Howell, Shreveport, for Appellant.
    Hayes, Harkey, Smith & Cascio, by Thomas M. Hayes, III, Monroe, McNew, King, Mills, Burch & Landry, by Brady D. King, II, Monroe, for Appellees.
    Before GASKINS, CARAWAY and DREW, JJ.
   GASKINS, J.

hln this suit alleging unfair trade practices, the plaintiff, SteriFx, Inc., appeals a trial court judgment granting exceptions of lack of personal jurisdiction filed by three nonresident defendants. We affirm.

FACTS

SteriFx, Inc. (originally Stericon, Inc.), markets and sells a patented disinfectant product used in various industrial, nutritional and medical applications. This Louisiana corporation was formed in July 2001, and its principal place of business was in Shreveport, Louisiana. Ernest Ro-den, a Louisiana resident, was an employee of SteriFx from its inception through 2003, and he worked as a consultant in 2004. Roden and the company entered into confidentiality agreements in 2001 and 2002. The terms of these agreements called for Roden to refrain from competing against SteriFx or soliciting its customers for two years after his employment ended.

ACT Specialty Chemicals, Inc., was created in 2002 in Louisiana by Frank Gigliot-ti and Jason York. It was formed as a chemical company to market primarily coagulants and polymers to industrial and municipal water and wastewater treatment application customers. It functioned in several southern states, including Mississippi, Arkansas, Texas, and Louisiana. ACT does not manufacture its products, instead it contracts with a manufacturer or toll blender to make a formula it owns.

In 2002, York and Gigliotti hired Albert Supik to work for ACT. Randall Allen also began to work for ACT.

In about June 2004, Allen met Roden. Thereafter, at a dinner meeting in Ruston, Louisiana, Allen introduced Roden to Gi-gliotti and Supik, who |awere traveling from Mississippi to Texas on ACT business. Roden subsequently went to work for ACT.

Synergy Technologies, Inc., was created in Maryland in August 2004 by Supik. The directors of Synergy are Supik, Gi-gliotti, York, Allen, and Roden. According to York and Supik, Synergy was formed to separate it from ACT to market both wastewater treatment products and antimicrobial products to the food processing industry, along with other industries. They wanted to reward and bring into the corporate structure all the people involved in it. Synergy’s main product was Syntrx 3200, a safe acid product also sold by ACT.

In June 2005, SteriFx, Inc., filed this suit against Roden, contending that, among other things, he was in breach of the noncompetition covenant and that he helped found Synergy, a competing business. The suit further asserted violations of the Louisiana Unfair Trade Practices and Consumer Protection Law and the Louisiana Uniform Trade Secrets Act.

In August 2005, SteriFx added Synergy, a Maryland corporation, as a defendant. Also added as defendants were Supik and Gigliotti, both of Maryland; York, a Tennessee resident; and Allen, a Louisiana resident. It alleged that these parties were complicit in Roden’s violation of his agreements with SteriFx.

In October 2005, an exception of lack of personal jurisdiction was filed by Synergy, Supik, Gigliotti and York. The exception was submitted to the court on briefs and with deposition extracts and other documentary evidence. - In December 2005, the trial court overruled the exception as to 13Synergy. However, the exception was granted as to Supik, Gigliotti and York. In its oral reasons for ruling, the trial court found that the men lacked sufficient contacts with the state of Louisiana to subject them to personal jurisdiction here. Judgment in conformity with these rulings was signed on January 24, 2006.

SteriFx appeals from the granting of the exception of lack of personal jurisdiction as to Supik, Gigliotti and York.

LAW

Appellate courts when reviewing a trial court’s legal ruling on a declinatory exception of lack of personal jurisdiction apply a de novo standard. Walker v. Super 8 Motels, Inc., 2004-2206 (La.App. 4th Cir.12/7/05), 921 So.2d 983. However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review. Diamond v. Progressive Security Insurance Company, 2005-0820 (La.App. 1st Cir.3/24/06), 934 So.2d 739; Peters v. Alpharetta Spa, L.L.C., 2004-0979 (La.App. 1st Cir.5/6/05), 915 So.2d 908. In Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993), the Louisiana Supreme Court established that when reviewing factual findings on appeal, a court of appeal may not set aside a trial court’s or a jury’s finding of fact unless the finding is manifestly erroneous or clearly wrong; where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. When the trial court is presented with |4two permissible views, its choice between them cannot be manifestly erroneous.

At a contradictory hearing on an exception of lack of personal jurisdiction, evidence is admissible to resolve the exception. La. C.C.P. art. 930. If evidence is admitted at such a hearing, the exception must be resolved on the evidence presented, rather than on the allegations in the petition. Exposition Partner, L.L.P. v. King, LeBlanc & Bland, L.L.P., 2003-0580 (La.App. 4th Cir.3/10/04), 869 So.2d 934.

The Louisiana long-arm statute, La. R.S. 13:3201, provides, in relevant part, for the exercise of personal jurisdiction over a nonresident defendant by stating that:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
(2) Contracting to supply services or things in this state.
(3) Causing injury or damage by an offense or quasi offense committed through an act or omission in this state.
(4) Causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives revenue from goods used or consumed or services rendered in this state.
B. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

Subsection B was added in 1987 to ensure that jurisdiction under the long-arm statute extended to the limits allowed by due process. Official Comments, Acts 1987, No. 418.

| ¿Due process requires that, in order to subject a nonresident defendant to a personal judgment, the defendant must have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103 (La.1991).

The due process test has evolved into a two-part test, the first part being the “minimum contacts” prong, which is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985). The nonresident’s “purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Ruckstuhl v. Owens Corning Fiberglas Corporation, 1998-1126 (La.4/13/99), 731 So.2d 881, cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 (1999). By requiring that a defendant must have purposefully availed himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws, the requirement ensures that he will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person, de Reyes v. Marine Management & Consulting, Ltd., supra; Alonso v. Line, 2002-2644 (La.5/20/03), 846 So.2d 745, cert. denied, 540 U.S. 967, 124 S.Ct. 434, 157 L.Ed.2d 311 (2003).

The second part of the due process test centers around the fairness of the assertion of jurisdiction. Hence, once the plaintiff meets his burden of proving minimum contacts, “a presumption of reasonableness of jurisdiction arises” and “the burden then shifts to the opposing party to prove the assertion of jurisdiction would be so unreasonable in light of traditional notions of fair play and substantial justice as to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum.” de Reyes v. Marine Management and Consulting, Ltd., supra. In determining this fundamental fairness issue, the court must examine (1) the defendant’s burden; (2) the forum state’s interest; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Ruckstuhl v. Owens Corning Fiberglas Corporation, supra.

In the de Reyes case, the Louisiana Supreme Court discussed the types of personal jurisdiction:

In interpreting the due process clause, the United States Supreme Court has recognized a distinction between two types of personal jurisdiction — “general” and “specific” jurisdiction. “It has been said that when a State exercises personal jurisdiction over a defendant in a suit arising out of or related to the defendant’s contacts with the forum, the State is exercising ‘specific jurisdiction’ over the defendant.” But when a State exercises personal jurisdiction over a defendant in a suit not arising out of or related to the defendant’s contacts with the forum, the State has been said to be exercising “general jurisdiction” over the defendant. [Citations omitted.]

[7It is settled that jurisdiction over individual officers and employees of a corporation may not be predicated merely upon jurisdiction over the corporation itself. Cobb Industries, Inc. v. Hight, 469 So.2d 1060 (La.App. 2d Cir.1985); Fuller v. American Recreational Vehicles, 2001-0664 (La.App. 3d Cir.12/12/01), 801 So.2d 642.

In Escoto v. U.S. Lending Corporation, 95-2692 (La.App. 4th Cir.5/22/96), 675 So.2d 741, writ denied, 96-1634 (La.9/27/96), 679 So.2d 1343, that court discussed this lack of jurisdiction over corporate officers:

This doctrine is often times referred to as the “fiduciary shield doctrine” and has its origin in judicial interpretations of long-arm statutes. It is rooted in the principle that the acts of a corporate officer in his corporate capacity cannot form the basis for jurisdiction over him in an individual capacity. When dealing with corporate officers, a court must look to the individual and personal contacts, if any, of the officer or employee, with the forum state. If an officer or employee is engaged in activities within the forum states’ jurisdiction which would subject them to the state’s long arm statute, jurisdiction by that state may be proper. Furthermore, if the corporation is not viable and the individuals are using it as a shield to conduct their personal activities a court may feel compelled to pierce the corporate veil and permit assertion of personal jurisdiction over the individuals. [Citations and footnote omitted.]

See also Cobb Industries, Inc. v. Hight, supra.

The exception to the fiduciary-shield doctrine recognized in Escoto of necessity involves the officer/agent’s acting outside of his legitimate corporate authority or shield. The officer therefore individually commits a tortious offense which becomes the crucial factor for the exercise of specific jurisdiction over him. Office Dimensions-Louisiana, Inc. v. King, 31,139 (La.App. 2d Cir.9/23/98), 718 So.2d 1052.

|sTo “pierce the corporate veil” or find that a corporation is an alter ego of an individual, the courts traditionally look to five factors that, when considered with the totality of the evidence, indicate that the individual and the corporation were not actually separate entities: (1) commingling of corporate and shareholder funds; (2) failure to follow statutory formalities required for incorporation and for the transaction of corporate affairs; (3) undercapi-talization; (4) failure to provide separate bank accounts and bookkeeping records; and (5) failure to hold regular shareholder or director meetings. Riddle v. Simmons, 40,000 (La.App. 2d Cir.2/16/06), 922 So.2d 1267, writ denied, 2006-0793 (La.6/2/06), 929 So.2d 1259.

DISCUSSION

The plaintiff contends that the trial court erred in granting the exception of lack of personal jurisdiction as to Supik, York and Gigliotti, the three directors of Synergy who were not Louisiana residents. The plaintiff argues that these individuals had sufficient contacts with Louisiana to warrant the court’s exercise of jurisdiction. Also, according to the plaintiff, application of the “fiduciary shield doctrine” would produce an inequitable result because Su-pik, York and Gigliotti all sought the personal benefits afforded by Louisiana laws through the marketing and sales of the product Syntrx 3200 in Louisiana though ACT and/or Synergy.

Albert P. Supik

Supik is a lifelong resident of Maryland. In 2002, Gigliotti and York hired him to work for ACT, which was selling water treatment speciality chemicals. He was hired because he had established business contacts in [9the paper industry which he could bring to ACT. He testified that he was not headquartered in Louisiana after he began working for ACT and that he never traveled to Louisiana to call on customers. Only his first meeting with Roden in June 2004 occurred in Louisiana. Supik has not personally marketed, tested or sold Syntrx 3200 in Louisiana. He and Gigliotti have a patent application pending on Syntrx 3200.

Jason York

York lived in Louisiana from January 1999 to April 2003, at which time he moved to Tennessee. When he relocated, ACT likewise moved to Tennessee and became headquartered in Memphis. Since moving to Tennessee, York has been back to Louisiana eight to ten times for business. Some of these trips were on ACT business. On behalf of Synergy, he visited Pilgrim’s Pride in Farmerville (testing Syntrx 3200 in mid-2005 to collect data for its USDA protocol) and the House of Raeford in Arcadia (making a sales call).

Frank Gigliotti

Gigliotti has lived in Maryland for more than 30 years and he has never lived in Louisiana. When ACT was headquartered in Louisiana, he spent only about 10 days to two weeks per year there. He came south to work with York about 12 times per year, but most of the time was spent in Mississippi and Arkansas. After ACT moved its headquarters out of Louisiana, he came here maybe once per year to see Allen.

The only complaint made against these defendants in the petition was that they were “eomplicit” in the violation of “these agreements.” The_[jj)agreements referenced are Roden’s employment-related contracts which were signed in 2001 and 2002. Synergy, which was incorporated in August 2004, is a foreign corporation which had sufficient minimum contacts with Louisiana to confer jurisdiction over it. The three non-Louisiana corporate agents/directors’ contacts with Louisiana were made in their corporate capacities. Contacts made outside this corporate capacity, if any, and in their personal or individual capacity, were not sufficient to meet the “minimum contacts” requisite. The plaintiff did not allege any damage arising out of an offense or quasi-offense committed through an act or omission in this state. Rather, the plaintiffs complaint against these defendants concerned their alleged complicity in the violation of Roden’s agreements with the plaintiff. Also, the plaintiff did not carry its burden in showing that Synergy was not a viable corporation or that it was merely a shield for these defendants. The plaintiff failed to show sufficient personal or individual contacts or tortious behavior which would subject these defendants to the jurisdiction of Louisiana. We, therefore, affirm the trial court’s action in sustaining the exception of lack of personal jurisdiction as to the defendants York, Supik, and Gigliotti.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellant.

AFFIRMED.


author: BROWN, Chief Judge.

text:
    In re MEDICAL REVIEW PANEL OF Santiago DAVIS (deceased) and Marcie Davis, Plaintiff-Appellant v. LOUISIANA STATE UNIVERSITY HEALTH SCIENCES CENTER-SHREVEPORT, Defendant-Appellee.
    No. 41,273-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 25, 2006.

      Babcock Law Firm, by Mark D. Plai-sance, Stephen Babcock, Baton Rouge, for Appellant.
    Mary Lou Blackley, Assistant Attorney General, for Appellee.
    Before BROWN, DREW, and LOLLEY, JJ.
   BROWN, Chief Judge.

| iPlaintiff, Marcie Davis, filed a complaint with the Louisiana Division of Administration requesting an investigation and the appointment of a medical review panel. Mrs. Davis alleged malpractice against the Louisiana State University Health Sciences Center — Shreveport (“LSUHSC”). According to her complaints, Mrs. Davis’s husband, who had attempted suicide, was to be admitted to the psychiatric unit for a mandatory 72 hour evaluation; however, he was released within 24 hours, at which time he returned home and committed suicide. The hospital filed in the district court an exception of prescription seeking dismissal of the complaint. Although the complaint was timely filed, the district court found that Mrs. Davis was a day late in paying the required filing fee. The district court granted the exception and dismissed plaintiffs claim. Mrs. Davis has appealed this judgment. We reverse.

Factual Background

On November 16, 2003, Santiago Davis attempted suicide by ingesting approximately 20-30 Trazadones, a prescription sleep aid. That day he was admitted to LSUHSC for treatment and observation. Mrs. Davis alleges that LSUHSC told her that Santiago would be admitted to the psychiatric unit for a mandatory 72-hour evaluation; however, the hospital discharged him the following day, November 17, 2003. Shortly after arriving home that afternoon, Santiago Davis committed suicide by shooting himself in the head. Mrs. Davis was home at the time and was aware that Uthe wound was self-inflicted. A death certificate issued on December 17, 2003, was mailed to Mrs. Davis in mid-January 2004.

On November 17, 2004, Mrs. Davis sent by certified mail a letter to the Department of Administration (“DOA”) requesting that a medical review panel be convened to investigate the medical treatment of her husband at LSUHSC. The DOA received Mrs. Davis’s letter on November 19, 2004, and on November 24, 2004, sent Mrs. Davis correspondence acknowledging receipt of her request. The letter from the DOA informed Mrs. Davis of the assigned panel number, 04-MR-170, and asked her to clarify which hospital in the LSU system she wished to name as a defendant. The letter further informed Mrs. Davis:

According to La. R.S. 40:1299.39.1, Act No. 961 of the (2003) Regular Session, be advised that you have forty-five days from the date of this mailing to pay the Commissioner of Administration a filing fee in the amount of one hundred dollars per named defendant state health care provider. Therefore, upon receipt of your payment in the amount of $100.00, we shall consider your request in compliance with the provisions of R.S. 40:1299.39.1(A)(1)(c). Failure to comply shall render the request invalid.

On January 10, 2005, Mrs. Davis mailed, by United States Express Mail, a check for $300 to the DOA as payment of the filing fee. In addition, on January 11, 2005, Mrs. Davis faxed a new letter to the DOA repeating the facts of the case and requesting a review panel. The DOA received the faxed letter and the express-mailed check on January 11, 2005.

IsOn January 14, 2005, the DOA wrote Mrs. Davis informing her that, in case 04-MR-170, she had failed to comply with the timely payment requirement of “La. R.S. 40:1299.39(A)(1)(c)” [sic] so .her request for a medical review panel was invalid and without effect. On January 18, 2005, the DOA wrote Mrs. Davis another letter recognizing her faxed letter of January 11, 2005, as a request for a review panel and informing her that her $300 payment had been received and that she would be refunded $200 since only one defendant was named. The DOA treated the facsimile sent by Mrs. Davis on January 11, 2005, as a new request for a medical review panel and assigned this request a new review panel number 04-MR-211.

On March 2, 2005, LSUHSC filed an exception of prescription in the district court. The parties presented documentary evidence and testimony from a DOA representative, Dianne Schenk, and from plaintiff, Mrs. Davis. The trial court concluded that plaintiffs payment of the filing fee was untimely (by one day), that the DOA properly closed her initial panel request, and that her subsequent panel request was prescribed since it was filed more than a year from when she should have known of the alleged malpractice. On November 10, 2005, the trial court signed a judgment sustaining the exception of prescription and ordering the DOA to dismiss both complaints. From this judgment plaintiff has appealed.

Discussion

On appeal there are two issues: (1) Whether claim 04-MR-170 was properly closed by the DOA for Mrs. Davis’s failure to timely pay the filing |4fee required by La. R.S. 40:1299.39.1(A)(1)(c); and (2) Whether the district court correctly found that the second claim, 04-MR-211, had prescribed.

La. R.S. 9:5628(A) provides:

No action for damages for injury or death against any physician, ... hospital ... licensed under the laws of this state ... whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

Prescription commences and continues when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. White v. Willis-Knighton Medical Center, 25,575 (La.App. 2d Cir.02/23/94), 632 So.2d 1198. The day upon which Mrs. Davis should have known of any alleged malpractice is the day of her husband’s suicide, November 17, 2003. She was in the house at the time, she heard the gunshot, and she knew that no one else was in the room with her husband. Furthermore, Mrs. Davis testified that she knew her husband’s gunshot wound was self-inflicted.

Mrs. Davis sent by certified mail her initial complaint (claim 04-MR-170) to the DOA on November 17, 2004. It was received by the DOA on November 19, 2004. The legislature has provided a “mailbox rule” with respect to the mailing of a request for a medical review panel that, under |5certain conditions, fixes the date of filing of the request as the day the claim was mailed. La. R.S. 40:1299.39.1(A) provides, in part:

(2)(b) The request for review of the claim under this Section shall be deemed filed on the date of receipt of the complaint stamped and certified by the commissioner, or on the date of mailing of the complaint if mailed to the commissioner by certified or registered mail only upon timely compliance with the provisions of Subparagraph (l)(c) or (d) of this Subsection. (Emphasis added.)

In this situation, when requesting the appointment of a medical review panel, a complaint is deemed filed on the date of mailing, when the complaint is sent by certified or registered mail, and the complainant timely complies with the payment requirements in La. R.S. 40:1299.39.1(A)(1)(c) or (d). Mrs. Davis did send her complaint by certified mail. The question remaining is whether she paid the filing fee in accordance with subsection (1)(c) which states:

A claimant shall have forty-five days from the date of the mailing of the confirmation of receipt of the request for review in accordance with Subparagraph (3)(a) of this Subsection to pay to the commissioner a filing fee in the amount of one hundred dollars per named defendant state health care provider.
La. R.S. 40:1299.39.1(A)(1)(e) further provides in part that:
Failure to comply with the provisions of Subparagraph (c) ... within the specified time frame ... shall render the request for review of a malpractice claim invalid and without effect. Such an invalid request for review of a malpractice claim shall not suspend the time within which suit must be instituted in Subpar-agraph (2)(a) of this Subsection.

Under Section (A)(2)(b), Mrs. Davis’s claim was timely filed by certified mail dated November 17, 2005, if she thereafter timely complied with the payment requirement of Section (A)(1)(c). Section (A)(1)(c) does not specifically state that the date of mailing is deemed to be the date of | ^payment. However, both the filing of the complaint and the payment of the fee are inexorably joined. The complaint is not considered to be filed until the fee is paid. Both are subsections of the same statute, La. R.S. 40:1299.39.1, and that statute provides a mailbox rule for filing the complaint which also requires that the fee be paid. It is logical that the same mailbox rule would apply to the 45-day period for paying the fee.

Louisiana Revised Statute 40:1299.39.1 allows a claimant 45 days after the mailing of confirmation of receipt of the request for a medical review panel to make payment to the DOA. The DOA mailed its confirmation of receipt of Mrs. Davis’s request on November 24, 2004. La. C.C.P. art. 5059 applies to the computation of this delay, and this article specifies that the date of the event is not to be included, so the delay for making payment began the next day. Commencing the count on November 25, 2004, the last day of the 45-day period was Saturday, January 8, 2005. Because Saturday and Sunday are holidays, the last day of the period was Monday, January 10, 2005, the day Mrs. Davis mailed her payment to the DOA. As noted, the payment was not received by the DOA until the next day, and it was sent by express overnight mail rather than certified or registered mail.

We have noted that the mailbox rule requires that the complaint be sent by certified or registered mail, the obvious purpose being to confirm the date of mailing and receipt. In this case, overnight express mail clearly accomplished that purpose. Express mail provides signed statements of the date mailed and the fact of next day delivery. In fact, the express mail ^receipt showed the exact time of mailing, which in this case was 4:38 p.m., January 10, 2005. We therefore find that the payment was mailed timely, and the trial court erred in finding that the first claim, 04-MR-170, was properly closed. With this ruling, the remaining issue is moot.

Conclusion

Because the Division of Administration did receive payment from Mrs. Davis prior to the conclusion of the 45-day period allotted by law, the agency wrongly closed Mrs. Davis’s first malpractice complaint. The district court’s judgment sustaining defendant’s exception of prescription and ordering the DOA to dismiss claim 04-MR-170 is reversed. All costs are assessed to LSUHSC as allowed by law.

REVERSED AND REMANDED.

      . The death certificate confusingly lists "accidental” as the manner of death and "self-inflicted gunshot wound of the head” as cause of death.

      . The letter said 2004; however, it was Act 961 of the 2003 Regular Session, not of the 2004 Regular session, and the act went into effect on July 7, 2003.

      . Mrs. Davis's claim that prescription should commence on the date she received the death certificates is not legally sound.