author: SAUNDERS, Judge.

text:
    STATE of Louisiana v. Thomas O. HOUSTON.
    No. KA 2007-449.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      William E. Tilley, District Attorney, Terry W. Lambright, Assistant District Attorney, Leesville, LA, for Plaintiff/Ap-pellee, State of Louisiana.
    Edward Kelly Bauman, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Thomas 0. Houston.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

hOn May 16, 2006, the Defendant, Thomas O. Houston, was charged by bill of information with carnal knowledge of a juvenile, in violation of La.R.S. 14:80. The Defendant entered a plea of not guilty on the same date. On December 8, 2006, the Defendant withdrew his former plea of not guilty and entered a plea of guilty to carnal knowledge of a juvenile. The Defendant was sentenced on January 23, 2007, to serve three years at hard labor and to pay a fíne of two thousand dollars plus costs of court. The Defendant filed a Motion to Reconsider Sentence on February 2, 2007, which was subsequently denied on February 6, 2007. On the same date, the Defendant filed a Motion for Appeal and Designation of Record.

The Defendant is now before this court asserting one assignment of error. Therein, the Defendant contends his sentence is excessive. We find that this assignment of error lacks merit.

SENTENCE AFFIRMED WITH INSTRUCTIONS.

FACTS:

On August 13, 2005, the Defendant, who was twenty-seven years old, had consensual sexual intercourse with a sixteen-year-old girl.

ERRORS PATENT:

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

Louisiana Revised Statute 15:537(A) mandates that diminution of sentence be denied to a person who is sentenced to imprisonment for a stated number of years or months and is convicted of or pleads guilty to certain sex offenses, including felony carnal knowledge of a juvenile.

| JUie court minutes of sentencing state, in pertinent part: “The defendant was advised pursuant to Article 894.1D, that the sentence is subject to diminution for good behavior and was not enhanced upon the basis of the habitual offender law or other provisions of the law.”

The transcript of sentencing indicates that after the trial judge imposed the sentence, he stated the following regarding diminution of sentence, “I advise you that pursuant to the Code of Criminal Procedure Article 894.1D your sentence is not subject to diminution because of the type of offense and your sentence was not enhanced....” Louisiana Code of Criminal Procedure Article 894.1(D)(1) requires the trial court to advise the defendant, immediately following the imposition of a felony sentence, “[wjhether, pursuant to the provisions of R.S. 15:571.3, the offender’s sentence is subject to diminution for good behavior.” Pursuant to La.Code Crim.P. art. 894.1(D)(2), the court is also required to advise the defendant “[wjhether the sentence imposed was enhanced pursuant to R.S. 15:529.1 et seq., Article 893.3, or any other relevant provision of law.”

The trial judge was simply complying with art. 894.1(D) when he advised the Defendant of his ineligibility for diminution of sentence. Consequently, this court finds that the trial judge’s failure to deny diminution of sentence renders the Defendant’s sentence illegally lenient.

Recently, this court addressed this issue in State v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, writ denied, 06-1917 (La.3/16/07), 952 So.2d 694:

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.

Id. at 1247.

Consequently, we amend the Defendant’s sentence for felony carnal knowledge of a juvenile to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537, and instruct the trial court to note the amendment in the court minutes.

ASSIGNMENT OF ERROR:

In his only assignment of error, the Defendant contends the trial court erred in that the sentence imposed upon him is constitutionally excessive. We do not agree.

The supreme court discussed the standard applicable to excessive sentencing claims in State v. Williams, 03-3514, p. 14 (La.12/13/04), 893 So.2d 7, 16-17, as follows:

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v. Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

The penalty for a violation of La.R.S. 14:80, carnal knowledge of a juvenile, is a fíne of not more than five thousand dollars, or imprisonment, with or without hard labor, for not more than ten years, or both. The Defendant was sentenced to serve three years at hard labor and pay a fíne of two thousand dollars plus costs of court. The Defendant argues this sentence is excessive, based on the fact that he is a first felony offender, is married, has two children, spent four years in the military, and was gainfully employed at the time he entered his guilty plea.

At the sentencing hearing, the Defendant informed the trial court that he was married, had two children, and was gainfully employed. The trial court was also aware of the Defendant’s status as a first felony offender. The trial court noted the Defendant had four misdemeanor convictions for issuing worthless checks or theft and was in court in 2005 for simple criminal damage to property. The trial court further stated the Defendant was placed on two years probation for the offense of simple criminal damage to property, the Defendant had a poor record of compliance, and there was an outstanding warrant regarding his probation.

In State v. Worsham, 32,670 (La.App. 2 Cir. 2/1/00), 754 So.2d 1107, the second circuit affirmed the eighteen-year-old first felony offender’s seven-year hard labor sentence for committing carnal knowledge of a thirteen-year-old juvenile.

In State v. Breaux, 491 So.2d 506 (La.App. 3 Cir.), writ denied, 496 So.2d 331 (La.1986), this court upheld a three-year sentence imposed upon a thirty-year-old police officer, who was a first offender and eligible for probation, convicted of carnal knowledge of a fifteen-year-old juvenile.

| .¡Based on the cases cited herein, the Defendant’s failure to comply with the terms of his probation, and the age difference between the twenty-seven-year-old Defendant and the sixteen-year-old victim, we cannot say the trial court abused its discretion when ordering the sentence imposed in the case at bar. Accordingly, this assignment of error lacks merit.

RECOMMENDATION:

We amend Defendant’s sentence to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537 and then affirm Defendant’s sentence as amended. We also instruct the trial court to note the amendment in the minutes of court.

SENTENCE AFFIRMED AS AMENDED, WITH INSTRUCTIONS.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Cornelius GUILLORY, Jr.
    No. KA 2007-422.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.

      John Foster DeRosier, District Attorney, Carla Sue Sigler, Assistant District Attorney, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Carey J. Ellis, III, Louisiana Appellate Project, Rayville, LA for Defendant/Appellant, Cornelius Guillory, Jr.
    Cornelius Guillory, Jr., Lake Charles, LA, In Proper Person.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

hThe Defendant, Cornelius Guillory, Jr., was charged by indictment filed on March 18, 2004, with two counts of molestation of a juvenile, in violation of La.R.S. 14:81.2. The Defendant entered a plea of not guilty to all charges on July 19, 2004.

Jury selection commenced on September 12, 2006, and on September 13, 2006, the jury returned verdicts of guilty of molestation of a juvenile on count one and guilty of the responsive verdict of indecent behavior with a juvenile, in violation of La. R.S. 14:81, on count two.

The Defendant filed a Motion for Post Verdict Judgment of Acquittal on September 19, 2006. On November 15, 2006, the trial court denied the Defendant’s Motion for Post Verdict Judgment of Acquittal and sentenced the Defendant to four years in the Louisiana Department of Corrections for molestation of a juvenile and to two years in the custody of the Louisiana Department of Corrections for indecent behavior with a juvenile. The sentences were ordered to run consecutively. A Motion for Appeal and Designation of Record was filed on November 16, 2006.

Appellate counsel has filed an Anders brief in this matter and the Defendant asserts one pro se assignment of error. For the following reasons, we amend the sentence, affirm the convictions and sentences as amended, and grant the motion to withdraw.

FACTS:

While acting as a substitute teacher on March 31, 2003, the Defendant rubbed the breasts and grabbed the buttocks of a fifth grade student. The Defendant also threw a pen between the legs of another student and softly brushed her leg with a few papers he was holding in his hand. The student testified that after the Defendant brushed her leg with the papers, he asked her if it tingled, if she had to go to the 12bathroom, and how it made her feel “below.”

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 there are two errors patent.

First, the trial court failed to specifically deny the Defendant eligibility for diminution of sentence on the convictions of molestation of a juvenile and indecent behavior with a juvenile. Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to a person who is sentenced to imprisonment for a stated number of years or months and is convicted of or pleads guilty to certain sex offenses, including molestation of a juvenile and indecent behavior with a juvenile, violations of La.R.S. 14:81.2 and 14:81. We addressed this issue in State v. S.D.G., 06-174 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, writ denied, 06-1917 (La.3/16/07), 952 So.2d 694, explaining in pertinent part:

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence [ ¿renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.

Id. at 1247. Thus, the Defendant received illegally lenient sentences. Consequently, the Defendant’s sentences are amended to reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537, and the trial court is ordered to note the amendment in the court minutes.

Second, the record does not indicate that the trial court advised the Defendant of the prescriptive period for filing post-conviction relief as required by La. Code Crim.P. art. 930.8(C). Thus, the trial court is directed to inform the Defendant of the provisions of article 930.8 by sending appropriate written notice to the Defendant within ten days of the rendition of this opinion and to file written proof that the Defendant received the notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

ANALYSIS:

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

In State v. Benjamin, 573 So.2d 528 (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.CrJP. 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.

Id. at 531.

Pursuant to Anders and Benjamin, we performed a thorough review of the record, including pleadings, minute entries, the charging instrument, and the transcripts. The Defendant was properly charged in an indictment, was present and represented by counsel at all crucial stages of the proceedings, the jury composition and verdicts were correct, and he received legal sentences.

We have found no issues which would support an assignment of error on appeal. Therefore, appellate counsel’s motion to withdraw is granted.

PRO SE ASSIGNMENT OF ERROR:

In his pro se brief, the Defendant alleges defense counsel was ineffective. He asserts that he, along with his son, his wife, and his wife’s aunt, observed two jurors sleeping and that information was relayed to defense counsel. Additionally, the Defendant’s son observed witnesses, two or more at a time, going into and out of the “District Attorney’s Room” despite the trial court’s order that witnesses not talk among themselves. The Defendant asserts he asked defense counsel to raise these issues, but was informed that it could “Help Not Hurt Us.” The Defendant further asserts that defense counsel failed to call any witnesses, including the school counselor, the computer lab teacher, the lunch lady, and other students who were in Isthe classroom on the date of the offenses. The Defendant then addresses inconsistencies in the statements made by several witnesses and avers that defense counsel did not object to or bring up these inconsistencies at trial.

We find the record is insufficient to rule on the Defendant’s claims. Rather than on direct appeal, ineffective assistance of counsel claims are most appropriately addressed through an application for post-conviction relief filed in the trial court where a full evidentiary hearing can be conducted. State v. Leger, 05-11, p. 44 (La.7/10/06), 936 So.2d 108, 142, cert. denied, — U.S. -, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007). Accordingly, the Defendant’s claims of ineffective assistance of counsel are relegated to post-conviction proceedings.

CONVICTIONS AND SENTENCES AFFIRMED AS AMENDED, WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.


author: COOKS, Judge.

text:
    STATE of Louisiana v. Dwayne DEMOUCHET.
    No. 07-92.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 31, 2007.
    Rehearing Denied Dec. 28, 2007.

      G. Paul Marx, Louisiana Appellate Pro-' ject, Lafayette, Louisiana, for Appellant, Dwayne Demouchet.
    Jeffrey J. Troselair, Assistant District Attorney, Franklin, Louisiana, for Appel-lee, State of Louisiana.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY H. EZELL, Judges.
   COOKS, Judge.

B STATEMENT OF THE FACTS

Officer Leon Defelice was dispatched in response to an anonymous call regarding a person selling Lortab in the area of Hopkins Street and Ambassador Wes Lemelle Street in New Iberia. Officer Defelice located an individual matching the description given by the informant three blocks from Hopkins Street. The officer exited his unit, approached Demouche and asked him if he had been on the corner of Hopkins and Lemelle. The Defendant answered that he had been in that area. The officer further testified: “I asked him if he had anything on him. After a conversation about him selling Lortab — after I told him why I stopped him and that he fit the description of somebody selling Lortab, I asked him if he had anything on him. And at that point is when he took off running east.” Officer Defelice pursued him on foot maintaining a distance, of approximately ten to fifteen feet while maintaining a flash light aimed on Demouchet. When the foot chase neared a house and the two men rounded a corner, the officer observed De-mouchet reach into the area of his waistband with his left hand and pull out a gun which he threw down near a shed. The Defendant was captured by the officer and handcuffed. He was searched and found to be in possession of a couple of pills in a Lortab prescription bottle, five .44 caliber rounds. The .44 caliber pistol discarded by the Defendant was recovered by the officer.

Dwayne Demouchet was charged by bill of information with possession of Schedule II narcotics, illegal carrying of a weapon and possession of a firearm by a convicted felon. The bill of information was amended and the Defendant was tried and convicted on the sole charge of possession of a firearm by a convicted felon, a | ¡^violation of La.R.S. 14:95.1. He was sentenced to serve fifteen years at hard labor. The State then filed for sentence enhancement under La.R.S. 15:529.1 based on Demouchet’s prior convictions for simple robbery and simple burglary. Following a hearing, the Defendant’s fifteen years sentence was vacated and Demouchet was sentenced as a habitual offender, and ordered to serve twenty-five years at hard labor. Demou-chet appeals asserting the officer had no basis to pursue and arrest him after the initial stop and the recovery of the gun could not be used against him. Demou-chet also contends his sentence of twenty-five years at hard labor is excessive. For the reasons assigned below, we affirm the conviction and sentence of the Defendant.

LAW AND DISCUSSION

Admissibility of the Gun

The United States Supreme Court has held an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a “reasonable suspicion” the individual is engaged in illegal activity. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In the present case, the Defendant concedes the initial approach by Officer Defelice was constitutional. However, the Defendant asserts there were no facts to support the subsequent arrest and recovery of the gun other than the flight. The Defendant contends the flight cannot be used as the basis for justifying the arrest when probable cause for the arrest and search was not present before the Defendant fled. Since Terry, the right of police officers to approach an individual to investigate possible criminal behavior and to perform a protective search for weapons has been expanded. In all cases, however, the officer must be able to “articulate ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’” Illinois v. Wardlow, 528 U.S. 119, 128, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), quoting, United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Flight can be considered in assessing whether there is an objective basis for suspecting criminal behavior. However, an individual’s flight from the police must be examined in light of the totality of circumstances and what “‘commonsense conclusions’ can be drawn respecting the motives behind the flight.” Id. In Ward-low, two officers were part of a four-car caravan converging on a area in Chicago known for heavy narcotics trafficking. One of the officers observed the Defendant standing next to a building holding a bag. The Defendant looked in the direction of the officers and fled. The officers pursued the Defendant and then conducted a protective patdown search for weapons. The Defendant was convicted of unlawful use of a weapon by a convicted felon. The Supreme Court held unprovoked flight when combined other factors, such as the individual’s presence in an area of heavy narcotics trafficking, was enough to support a reasonable suspicion that the person is engaged in criminal behavior. The Supreme Court stated:

Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but its is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.
[UJnprovoked flight is simply not a mere refusal to cooperate. Flight by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the fact of police questioning.

Id. at 124, 125, 120 S.Ct. 673.

In the present case, the officer testified the area he was patrolling was an area known for drug trafficking. He received information that an individual matching the ^Defendant’s description was selling drugs in the vicinity of Hopkins Street. He observed the Defendant in the area and approached him. The Defendant admitted he had been on Hopkins and Le-melle. When the officer asked him if he had any drugs in his possession, the Defendant fled. The officer gave chase and observed the Defendant reach into pants and discard a gun. In this case, we find given the totality of the circumstances— the anonymous tip regarding an individual matching the description of the Defendant, the nature of the area, and the unprovoked flight in response to questions regarding drug activity — gave rise to a reasonable suspicion that the Defendant was engaging in criminal behavior. We find no error in the decision of the trial court denying the Defendant’s motion to suppress the gun.

Excessiveness of Sentence

The Defendant asserts his sentence of twenty-five years at hard labor is excessive. A sentence is constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than the purposeless and needless infliction of pain and suffering. State v. Lobato, 603 So.2d 739 (La.1992). The trial court is given wide discretion in imposing a sentence and absent a manifest abuse of that discretion, a sentence will not be deemed excessive if imposed within statutory limits. State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955. “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. In the present case, the Defendant was convicted of possession of a firearm by a convicted felon and sentenced as an habitual offender. The trial court articulated the reasons for the imposition of the sentence. The trial court considered the Defendant’s mature age of thirty-seven years, his criminal record which included six pri- or felony convictions. The trial court further considered the Defendant’s perjured testimony during trial, the | ¡dulse complaint against his probation officer, and the allegation that he coerced his girlfriend into writing an affidavit attesting that she was the owner of the revolver. The trial court considered Demouchet a career criminal in need of correctional treatment and found there was an undue risk that during any period of suspended sentence or probation, he would commit another crime. We do not find the trial court abused its discretion in sentencing the Defendant to twenty-five years at hard labor.

DECREE

Based on the foregoing review of the record, the conviction and sentence of the Defendant is affirmed.

AFFIRMED.

      . The Lortab was prescribed to Demouchet.

      . The record indicates the Defendant has also been convicted of unauthorized use of an access card, illegal possession of stolen things, and another count of simple burglary.


author: JOAN BERNARD ARMSTRONG, Chief Judge. MURRAY, J., LOVE, J.,

text:
    Jake John SCHIRO, Sr., Individually and as Administrator of the Estates of Dolores Schulte Schiro, Jake John Schiro, Jr. and Cynthia Ann Schiro v. ACADIAN AMBULANCE SERVICE, INC. and ABC Insurance Company.
    No. 2007-CA-0519.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 9, 2007.
    Rehearing Denied Dec. 27, 2007.

      Michael J. Mestayer, Michael J. Mestayer, A PLC, New Orleans, G. Gregory Green, Law Offices of G. Gregory Green, Monroe, LA, Walter J. Leger, Jr., Leger & Shaw, New Orleans, LA, for Plaintiff/Appellant.
    Stephanie B. Laborde, Angela W. Adolph, Milling Benson Woodward, L.L.P., Baton Rouge, LA, for Louisiana Patients’ Compensation Fund Oversight Board.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD and Judge LEON A. CANNIZZARO, JR.)
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiff-appellant, Jake John Schi-ro, Sr., appeals a judgment of November 9, 2006, limited to a finding that his medical malpractice claims against the defendant-appellee, the Louisiana Patients’ Compensation Fund Oversight Board (the “Fund”) are not covered by the Louisiana Medical Malpractice Act. Such a finding effectively bars the plaintiff from any recovery against the Fund.

This case arose out of the tragic drowning of several family members in Katrina flood waters. The claim was originally filed against St. Bernard Parish and Acadi-an Ambulance Service of New Orleans, L.L.C., an affiliate of Acadian Ambulance Service, Inc. (collectively “Acadian Ambulance”), alleging that these defendants failed to provide “contractually promised evacuation,” resulting in the deaths from Hurricane Katrina of the plaintiffs wife, son and daughter. However, this appeal concerns the death only of the plaintiffs wife (“the decedent”) and the plaintiffs claim against only the Fund, for the alleged malpractice of Acadian Ambulance in failing to evacuate the decedent during the Katrina emergency.

The facts of the case are basically undisputed. Acadian Ambulance contracted with the St. Bernard Parish government to provide evacuation transportation services to persons designated on a list compiled by the Parish. 1 ¡.There is no allegation that Acadian Ambulance participated in any way in the compilation of the list of designated evacuees; there is no allegation that Acadian Ambulance participated in any way in the establishment of criteria for eligibility for designation on the list; there is no allegation that Acadian Ambulance ever had any contact with the decedent; there is no allegation that Acadian Ambulance ever evaluated the decedent or ever established any relationship with the decedent of any kind; and there is no allegation that Acadian Ambulance ever rendered any service of any kind to the decedent, medically related or otherwise. However, the plaintiff contends that the decedent was the third-party beneficiary of Acadian Ambulance’s contract with the Parish. As we hereinafter affirm the trial court’s holding that the plaintiff has no malpractice claim against Acadian Ambulance, we never reach the question of the decedent’s status as a third party beneficiary.

There is no reference in the original petition or in the amended petition to Aca-dian Ambulance as a qualified health care provider. The petitions contain no allegation that the decedent was a patient of Acadian Ambulance, or that Acadian Ambulance breached the standard of care of community health care providers in the community in question. There are no allegations of medical malpractice.

Acadian Ambulance and its liability insurer entered into a confidential settlement with the plaintiff in which Acadian Ambulance paid its full deductible and its insurer paid additional sums. The trial court found that the unknown settlement amount was in excess of $100,000.00. The plaintiff does not contest that finding. Therefore, the plaintiff filed a Petition to Approve Settlement seeking additional damages from the Fund. The Fund objected on the grounds that the plaintiff had asserted no claims under the Medical Malpractice Act (MMA) requiring approval of settlement. The trial court scheduled a hearing on the ^objection as a result of which the trial court rendered a judgment holding that “the actions complained of by the plaintiffs against Acadian Ambulance Service, Inc. are not covered by the requirements of the Louisiana Medical Malpractice Act.”

It is undisputed that Acadian Ambulance is a qualified health care provider. However, this does not mean that its every action is a health care action. In Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1 Cir. 5/14/96), 676 So.2d 114, the court held that the Louisiana legislature did not intend to include negligence in driving an ambulance within the scope of the MMA. Thus, if negligence in driving an ambulance is not malpractice under the MMA, then failing to drive the ambulance under the facts of this case is not medical malpractice.

Similarly, in Robinson v. Allen Parish Police Jury, 05-0394 (La.App. 3 Cir. 12/30/05), 918 So.2d 535, the court explained that:

[I]t is the nature of the act complained of, and not the status of Acadian Ambulance as a health care provider, that is determinative of the issue. Acadian Ambulance’s status as a qualified health care provider does not mean that every claim against it is covered by the MMA. Strict construction of the MMA requires that its limitations on liability apply only to claims of negligence by the health care provider in the provision of “health care” or “professional services” to a patient. Wild v. NS’NG, Inc., 04-0933 (La.App. 1 Cir. 12/30/04), 898 So.2d 466. Maintaining the structural and operational integrity of a helicopter cannot be considered a part of Mr. Celestine’s treatment, nor would such care require the assistance of a doctor, nurse or paramedic.

Id., 05-0394, pp. 8-9, 918 So.2d at 540.

LaCoste v. Pendelton Methodist Hospital, 06-1268 (La.App. 4 Cir. 12/6/06), 947 So.2d 150, has been overruled by the Supreme Court since the time the plaintiff filed his appeal. LaCoste v. Pendelton Methodist Hospital, 07-0008 (La.9/5/07), 966 So.2d 519. It is an evacuation case, but in LaCoste, the decedent-patient who was ventilator dependent was admitted to Methodist Hospital prior to Katrina’s landfall. A number of patients were evacuated, but the decedent was not and she died in the hospital. The Supreme Court, in reversing this Court, found that the plaintiffs claim in that case sounded in tort and not malpractice. Thus the Supreme Court’s decision in LaCoste is consistent with the decision of this Court.

In Williamson v. Hosp. Service Dist. No. 1 of Jefferson, 04-0451 (La.12/1/04), 888 So.2d 782, the Supreme Court found that the hospital’s failure to repair a wheelchair resulting in injury to its patient did not sound in malpractice. By way of analogy, how and why Acadian Ambulance did not arrive to transport Mrs. Schiro with whom it had no prior relationship does not relate to medical malpractice.

The plaintiffs petition for damages alleges a failure to provide transportation services. The service that Acadian Ambulance was to provide was similar to other modes of transportation services provided to assist in the evacuation of storm victims. Under the facts of this case, Acadian Ambulance was not called because the decedent had an emergency medical condition. There is no allegation that Acadian Ambulance failed to render medical treatment or health care services, or that any substandard healthcare related service was rendered by Acadian Ambulance to the decedent or that any of her injuries resulted therefrom. As the trial court correctly observed, there was never any loading, transport or unloading of a patient as would be required under the MMA.

There is nothing in the record implying that Acadian Ambulance participated in any medical evaluation of the decedent in determining her | Bdesignation for the list of persons to be given assistance in evacuating. There was never any contact between the decedent and Acadian Ambulance.

The plaintiff never submitted his claim to a medical review panel. La. R.S. 40:1299.47(B)(a)(i) makes this a prerequisite to any such action against a health care provider:

No action against a health care provider covered by this Part, or his insurer, may be commenced in any court before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section.

The plaintiff made no allegations of medical malpractice when he filed suit or when he amended his petition and did not refer the matter to a medical review panel. Plaintiff made no allegations of medical malpractice and made no reference to the Louisiana Patients’ Compensation Fund until he filed his “Petition to Approve Settlement with Qualified Health Care Provider under La. R.S. 40:1299.41 et seq,” and this was after he had agreed to settle for an unknown sum in excess of the $100,000.00 limit under the MMA.

The trial court correctly noted in its reasons for judgment that the MMA is in derogation of the rights of tort victims and its language must be strictly construed and any ambiguity must be resolved against coverage by the MMA. Williamson v. Hospital Service District No. 1 of Jeffer son, supra; Coleman v. Deno, 01-1517 (La.1/25/02), 813 So.2d 303.

In its written reasons for judgment, the trial court made the following observation:
The Court also points out that the settlement entered into between plaintiffs and Acadian is for a sum in excess of $100,000.00 plus some costs. Said exact amount is not before the Court. One purpose of the MMA in the context of malpractice actions is to limit the plaintiff | ¿recovery to $100,000.00 from the healthcare provider and then to proceed against the patient compensation fund. Here plaintiffs [sic] recovery is unknown and plaintiff could recover in excess of the statutorily mandated damages.

We agree with this analysis of the trial court.

Plaintiff cites Bodin v. Delta Towing, L.L.C., et al., 02-0295, 2003 WL 203106 (E.D.La.1/29/03), unpub., in support of its contention that an ambulance service’s failure to evacuate was covered by the MMA. We do not find that Bodin helps the plaintiffs case. Bodin is an unreported Federal District Court opinion. The facts set forth in the opinion are limited. All we are told is that the plaintiff, a deckhand, suffered a personal injury “aboard the MW DELTA TRADITION during anchor operations for the barge M/V MIDNIGHT RIDER.” The plaintiff filed a Seaman’s Complaint against certain defendants, including Delta Towing, LLC. In a second amended complaint, plaintiff alleged that Delta Towing, LLC was also liable for the negligence of its agents, Acadian Ambulance Service, Inc. and Offshore Logistics, Inc., under the doctrine of respondeat superior. Delta filed an answer to this second amended complaint which included a third-party complaint based upon Fed. R.Civ.P. 14[c] against Acadian Ambulance Service averring that Acadian failed to provide “timely medical care and/or evacuation to an appropriate medical facility,” but no further facts are given from which the reader can deduce in what way Acadi-an’s action were deemed to be deficient. As the Fund points out, it is impossible to know from reading Bodin whether the plaintiff is alleging that Acadian was delayed in arriving to transport the plaintiff, or that it was delayed in delivering him to a facility, or that care provided during delivery was not timely, or that it delivered him to an inappropriate medical facility.

The Bodin court found that it was without subject matter jurisdiction because there was no allegation “that the medical review panel process as required by the Louisiana Medical Malpractice Act, La. R.S. 40:1299.41, et seq. [‘LMMA’], prior to initiation of a malpractice action, has been completed.” Accordingly, the court dismissed the plaintiffs claim. Therefore, if this Court were to agree with the plaintiff in the instant case that the alleged actions or omissions of Acadian Ambulance constitute malpractice, we would still be required to affirm the trial court’s judgment on the basis that it is uncontested that the plaintiffs claim has never been referred to a medical review panel.

Additionally, assuming for purposes of argument only that the facts in Bodin were exactly analogous to those of the instant case, we have no way of knowing how that court would have ruled had the question of medical malpractice vel non been before the court. As it was, the Bodin court was faced with allegations of medical malpractice which were deficient on their face. The Bodin court never reached the question of whether the alleged acts, whatever they may have been, actually raised a claim sounding in medical malpractice and there is nothing in the opinion suggesting that had the Bodin court been faced with the facts we have before us in the instant ease that it would have found that the plaintiffs claim against Acadian Ambulance is a malpractice claim. In other words, we find that all the Bodin opinion stands for is the fact that a claim alleging medical malpractice cannot proceed without first going to a medical review panel. The Bodin opinion makes no findings about what actions or omissions actually fall under the MMA. Thus, our analysis of Bodin favors the result reached by the trial court in the instant case.

|sFor the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

MURRAY, J., Concurs with Reasons.

LOVE, J., Concurs in the Results and Assigns Reasons.

MURRAY, J.,

Concurring.

b Because there was never an allegation of medical malpractice and because the petition does not state that it is malpractice, it is not malpractice. I would thus find the trial court is correct.

LOVE, J.,

Concurring in the Results.

|TI respectfully concur in the result of the majority.

The plaintiff never asserted any claims against Acadian Ambulance based on medical malpractice. The plaintiff also never submitted his claim to a medical review panel, as required in actions against qualified health care providers pursuant to La. R.S. 40:1299.47(B)(a)(i).

Unlike the majority, I find that this case presents a procedural deficiency, which does not necessitate substantive analysis.


author: THIBODEAUX, Chief Judge.

text:
    Charles McKELVEY, Jr. v. CITY OF DEQUINCY.
    No. 07-604.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 14, 2007.

      Christopher Richard Philipp, Lafayette, LA, for Defendant/Appellant, City of De-Quincy.
    Thomas Allen Filo, Cox, Cox, Filo & Camel, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Charles McKelvey, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

1 defendant, the city of DeQuiney, appeals the Office of Workers’ Compensation judgment awarding death benefits to the plaintiff, Tina McKelvey, (Mrs. McKelvey) individually and on behalf of her minor daughter, Misty, as a result of the death of her husband, Charles McKelvey, Jr., due to “probable mixed drug intoxication.” The city of DeQuiney also appeals the Office of Workers’ Compensation judgment awarding $2,000 in penalties and $6,500 in attorney fees against it and in favor of Mrs. McKelvey because the trial judge concluded that the claim was “not reasonably controverted, nor suitably investigated.”

For the following reasons, we affirm the judgment of the Office of Workers’ Compensation.

I.

ISSUES

We shall consider whether:

1. the trial court erred in determining that Mrs. McKelvey carried her burden of proof by a preponderance of the evidence in showing that Mr. McKelvey’s death was attributable to treatment for his work-related accident;
2. the trial court erred in allowing Mrs. McKelvey to establish Mr. McKel-vey’s cause of death by using his death certificate; and,
3. the trial court erred in awarding penalties and attorney fees to Mrs. McKelvey.

II.

FACTS

Mr. McKelvey suffered an injury at work on September 25, 2000, while | ¿working as a heavy equipment operator for the city of DeQuincy. Thereafter, he developed severe pain in his back and lower extremities. Mr. McKelvey consulted Dr. Clark Gunderson, an orthopedic surgeon. After a complete diagnostic physical examination, which included a lumbar myelogram, a computerized tomography of the lumbar spine (CT), and an electromyo-gram (EMG), Dr. Gunderson determined that Mr. McKelvey was not suitable for surgery and referred him to Dr. Frank Lopez, a rehabilitation physician.

On July 30, 2001, Dr. Frank Lopez began treating Mr. McKelvey for pain management. Dr. Lopez diagnosed Mr. McKelvey with lower back pain with radi-culopathy. To control Mr. McKelvey’s back aches, Dr. Lopez devised a treatment plan consisting of prescribed medications such as Zanaflex, Neurotin, Soma, Restorial, OxyContin, and Mepergan Fortis.

In 2004, Dr. Lopez referred Mr. McKel-vey back to Dr. Gunderson. Following a thorough physical examination, Dr. Gun-derson determined that the x-rays showed degenerative disc disease at every level. Thereupon, Dr. Gunderson concluded that Mr. McKelvey was still not a suitable candidate for surgery. Accordingly, Mr. McKelvey continued his pain management treatment with Dr. Lopez.

On February 9, 2005, Mr. McKelvey was found dead. A toxicology report was issued by the Southwest Institute of Forensic Science in Dallas, Texas. The toxicology report tested negative for alcohol and controlled substances, but indicated that Mr. McKelvey had high levels of ten prescription medications in his system at the time of his death. Based upon the toxicological findings, Mr. McKelvey’s death certificate stated his death as caused by “probable mixed drug intoxication.”

| c.The city’s third party administrator, Risk Management, Inc. (RMI), was paying Mr. McKelvey’s workers’ compensation benefits continuously until his death. However, upon Mr. McKelvey’s death, all workers’ compensation benefits were terminated based on RMI’s determination that since Mr. McKelvey “apparently ingested excessive amounts of medications” the death was not caused by his work-related injury. At trial, Sandy Arst, the claims adjuster for RMI, testified that once RMI learned of Mr. McKelvey’s death, further investigations on the claim were suspended.

On July 21, 2005, Mrs. McKelvey filed a death benefit claim. Thereafter Mr. Arst asked Mrs. Carla LaFleur, a medical case manager, to reopen Mr. McKelvey’s file and conduct research on the interaction between the drugs Mr. McKelvey was taking at the time of his death. Mrs. LaFleur rendered a report which stated the side effects of each medication taken individually; it did not indicate the side effects of the medications taken collectively. No death benefits were ever paid to Mrs. McKelvey.

III.

LAW AND DISCUSSION

Standard of Review

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Association, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023.

Nevertheless, the issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one [4... Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony.

Stobart v. State through DOTD, 617 So.2d 880, 882 (La.1993).

Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Prine v. St. Paul Fire & Marine Ins. Co., 749 So.2d 831. The “manifest error” standard of review applies to all factual findings, including sufficiency of the evidence challenges. Hall v. Folger Coffee, Co., 03-1734 (La.4/14/04), 874 So.2d 90, 99, citing Nabors Drilling USA v. Davis, 03-0136 (La.10/21/03), 857 So.2d 407, 416. Therefore, we will review the record in its entirety to determine if the trial court’s findings are reasonable in light of the evidence contained therein.

A.

Was the trial court’s determination that Mr. McKelvey’s death was attributable to treatment for his work-related accident reasonable in light of the record reviewed in its entirety?

We are posed with the factual question of whether Mrs. McKelvey carried her burden of proof by a preponderance of the evidence in showing that Mr. McKelvey’s death was directly attributable to the treatment he received for his work-related injury.

The plaintiff in a death benefits case bears the burden of proving, by a reasonable preponderance of the evidence, that a causal relationship exists between the employment accident and death. Hammond v. Fidelity & Cas. Co. of New York, 419 So.2d 829, 831 (La.1982). It is not necessary for the plaintiff to establish the exact cause of the disability or, in this case, the death, but it is necessary for the plaintiff to “demonstrate by a preponderance of proof that the accident [that was] |ssustained has [a] causal relationship with [the] disability.” Quinones v. U.S. Fidelity and Guar. Co., 93-1648 (La.1/14/94), 630 So.2d 1303, citing Russell v. Employers Mutual Liability Insurance Co. of Wisconsin, 246 La. 1012, 169 So.2d 82, 88 (La.1964).

In this case, there is evidence establishing that Mr. McKelvey was a relatively healthy and strong man with no reported injuries, aches or pains before his work-related injury. Admittedly, there is also evidence showing that Mr. McKelvey sustained three myocondrial infarctions (i.e., heart attacks) in the past, and suffered polycystic kidney disease, an inherited progressive disease. Nevertheless, a distinction between these conditions and his work-related injury can readily be made. Both the polycystic kidney disease and heart diseases are pathological in nature, whereas a back injury is mostly mechanical.

Likewise, there is subjective and objective evidence indicating that after his work-related injury, Mr. McKelvey required permanent medical treatment. The deteriorated physical condition of Mr. McKelvey was clearly evinced by Dr. Lopez’s medical records. For instance, during the time Dr. Lopez treated Mr. McKel-vey, his pain averaged a visual scale of 6 to 7 on Dr. Lopez’s “0 to 10 Pain Intensity Scale.” As explained by Dr. Lopez at his deposition, he gives patients this scale in order to give him a rough estimate of what they perceive their level of pain is. The extent of Mr. McKelvey’s injury as well as the intensity of the pain were also objectively confirmed by Dr. Lopez’s office notes dated November 26, 2002, where Dr. Lopez stated that Mr. McKelvey “will need back treatment for the rest of his life due to his condition.”

| ¡¿Plaintiffs Evidence Establishing Causation

Mrs. McKelvey introduced the toxicology report performed on Mr. McKelvey, which stated that at the time of his death, he had not ingested either alcohol or controlled substances, but rather high amounts .of prescription medications. In addition to the toxicological findings, Mrs. McKelvey introduced Mr. McKelvey’s death certificate wherein his cause of death is stated as “probable mixed drug intoxication.” Finally, Mrs. McKelvey introduced the pharmacy records of the prescription medications Mr. McKelvey ingested during the year leading up to his death. According to Mrs. McKelvey, these records were introduced into evidence to confirm the repeated and continued use of the medications found in Mr. McKelvey’s system at the time of his death. Thus, in light of the evidence taken collectively, it persuasively indicates that there is a reasonable probability that the death of Mr. McKelvey and his work-related injury were causally related.

Defendant’s Rebuttal Evidence and Allegations

DeQuincy contends that Mr. McKelvey’s continued misuse and abuse of prescribed medications, as opposed to an adverse interaction between them, caused his death, thus breaching, ipso facto, the chain of causation between his work-related injury and subsequent death. This assertion, albeit ingenious, is weakly supported by the evidence and is somewhat tenuous. Accordingly, we disagree.

First, in order to establish the misuse and abuse theory, DeQuincy introduced into evidence records of prescription medications from different pharmacies. It alleges that Mr. McKelvey routinely purchased prescription medications from these pharmacies, thereby proving Mr. McKelvey’s misuse and abuse of prescription medications. In addition, DeQuincy asserts Dr. Lopez’s deposition testimony suggests that it was very possible that Mr. McKelvey was |7diverting these drugs. This assertion is merely guesswork. Such speculation is insufficient to rebut Mrs. McKelvey’s direct evidence.

Second, the fact that Mr. McKelvey may have possibly misused or abused his prescription medications in the past is moot. The toxicology report makes it evident that at the time of his death, Mr. McKel-vey tested positive for six of the medications Dr. Lopez was prescribing him for his pain management treatment. Notwithstanding this finding of fact, DeQuincy contends that Dr. Lopez discharged Mr. McKelvey as a patient after his last visit on February 1, 2005, allegedly because Mr. McKelvey was misusing his medications, and that was a violation of his pain management contract with Dr. Lopez. But the reality is that, on February 1, 2005, Dr. Lopez wrote Mr. McKelvey his prescriptions for one more month. Then, eight days later, on February 9, 2005, Mr. McKelvey was found dead. Moreover, the toxicological findings revealed that Mr. McKelvey had not consumed drugs nor alcohol, but rather that he had ingested ten prescription medications, six of which were compatible with those prescribed for his work-related injury.

Finally, we reject the defendant’s allegation that Mr. McKelvey’s “chronic” abuse of his prescribed medications, ipso facto, breached the chain of causation between the on the job accident and his following death.

In Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349, writ denied, 98-2314 (La.11/13/98), 731 So.2d 265, the defendant advanced the proposition that, “if the [deceased] died because he took more than the prescribed amount of medication, as opposed to dying from a drug interaction, then that overuse of medication would, ipso facto, break the chain of causation between the [decedent’s] work related accident and his subsequent death.” Id. In rejecting this assertion, the court explained:

|sWe can see that there might be cases in which the abuse of prescription medication, particularly for blatantly recreational use, went so far that it could not be considered to have been caused by the work related injury that led to the prescription of the medication. But, we also can see that, in the context of long-term use of addictive prescriptive prescription medications for chronic pain, some use of the medications in excess of the prescribed amounts is fairly considered to have been caused by the work related injury which led to the prescription of the medication.

Id. at 353.

Similarly, in this case, Mr. McKelvey needed permanent medical treatment. However, because Mr. McKelvey was not suitable for surgery, his permanent medical treatment consisted of the long-term use of highly addictive prescription medications. Thus, it was foreseeable that a dependence upon these medications may develop. In fact, Mr. McKelvey was prescribed methadone precisely to try to get him off the Lorcets, a highly addictive medication, as he had developed a reliance on it. This dependence as well as the possible use of medications in excess “is fairly considered to have been caused by the work related injury which led to the prescription of the medications [in the first place].” Dean, 720 So.2d 349, 353.

B.

Did the trial court err in allowing the plaintiff to establish the decedent’s cause of death by use of the decedent’s death certificate?

It is settled law that “a death certifícate is proof only of the death itself, not proof of the cause of death, and it is inadmissible for the purpose of showing cause of death.” Walton v. Normandy Village Homes Association, Inc., 475 So.2d 320 (La.1985); Alexander v. State of Louisiana, Department of Health & Hospitals, 94-714, 648 So.2d 11, (La.App. 3 Cir. 12/7/94), citing Bailey v. State of Louisiana, 623 So.2d 704, 706 (La.App. 4 Cir.1993); Prine v. St. Paul Fire and Marine Insurance Co., 32-559, 749 So.2d 831, (La.App. 2 Cir. 12/8/99), writ denied, 00-0032 (La.2/18/00), 754 So.2d 975.

The Defendant argues that Mrs. McKelvey unsuccessfully established Mr. McKelvey’s cause of death by failing to perform an autopsy report, and by relying solely on the his death certificate. We disagree. “Although La.C.Cr.P. art. 105 provides that an autopsy report is competent evidence to establish the fact of and cause of death, it was never intended to preclude other competent evidence.” See, State v. Winzer, 354 So.2d 533 (La.1978); State v. Trahan, 543 So.2d 984 (La.App. 3 Cir.1989), rev’d on other grounds, 551 So.2d 1303 (La.1989); State v. Outley, 629 So.2d 1243 (La.App. 2 Cir.1993), writ denied, 94-410 (La.5/20/94), 637 So.2d 476. By analogy, we can extrapolate this principle of law into civil matters. Indeed, the adoption of this rule will allow individuals who lack the financial means to afford an autopsy report to, nonetheless, establish the cause of death through the use of competent evidence such as a toxicological report. Accordingly, as long as the cause of death is proven by any competent evidence, the cause of death will be deemed established.

In this case, Mrs. McKelvey did not exclusively rely on Mr. McKelvey’s death certificate to establish the cause of his death. She presented the toxicology report into evidence precisely to establish Mr. McKelvey’s cause of death. We agree with Mrs. McKelvey’s assertion that the death certificate was introduced into the record to support the toxicology report, namely that Mr. McKelvey’s death was caused by “probable mixed drug intoxication.”

Moreover, it is noteworthy to mention the fact that DeQuiney neither objected to the introduction of the toxicology report into evidence, nor controverted plaintiffs allegation by rebutting the report with its own toxicological findings. It 11flargues that since Mrs. McKelvey did not perform an autopsy on Mr. McKelvey, nor hire a toxicology expert, DeQuiney did not have to rebut any such evidence Mrs. McKelvey may have introduced at trial. We disagree. A party denying the existence of a causal relationship between the work injury and the employee’s disability or death assumes both the burden of producing the evidence and the burden of persuasion on the issue once the disabled employee establishes the presumption of causal relationship.

Consequently, we hold that the toxicological report constituted competent evidence. Furthermore, in view of the fact that DeQuiney failed to challenge any of the evidence introduced by Mrs. McKelvey at trial, the trial court did not err in finding that the decedent’s cause of death was conclusively established by the findings set forth in the toxicology report.

C.

Did the trial court err by awarding penalties and attorney fees to Mrs. McKelvey?

It is settled law that the standard of review by an appellate court of the workers’ compensation judge’s imposition of penalties and attorney fees on an employer is that of manifest error. Walter Homes, Inc. v. Guilbeau, 05-1473 (La.App. 3 Cir. 6/21/06), 934 So.2d 239. “Whether an employer should be cast with penalties and attorney’s fees is a finding of fact which will not be reversed in the absence of manifest error.” Wiley v. Grand Casino Avoyelles, 98-1468 (La.App. 3 Cir. 4/21/99), 731 So.2d 518, 524, writ denied, 99-2032 (La.11/5/99), 750 So.2d 180. In order to avoid penalties and attorney’s fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits. Brown v. City of Lake Charles, 05-443 (La.App. 3 Cir. 11/2/05), 916 So.2d 482 (citations omitted). With regards to the amount of the attorney fees, some of the factors taken into account by the judge in fixing the amount of the fee are the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the employee or beneficiaries, and the amount of time the attorney devoted to the case. Ardoin v. Kipling Korner Grocery, 02-1372 (La.App. 3 Cir. 3/5/03), 839 So.2d 1167, 1168-69.

There is overwhelming evidence in the record supporting the trial court’s conclusion that DeQuiney failed to properly investigate Mrs. McKelvey’s death benefit claim. At trial, Mr. Arst, RMI’s claim adjuster, admitted that when RMI learned of Mr. McKelvey’s death, workers’ compensation benefits ceased without further investigating his cause of death. Apparently, RMI concluded that Mr. McKelvey died as a result of an overdose. According to Mr. Arst, this conclusion was drawn upon the fact that the death certificate indicated that Mr. McKelvey “apparently ingested excessive amounts of medications.” The fact that RMI may have thought that Mr. McKelvey’s death was caused by a presumed overdose does not relieve it from its ongoing duty to properly and timely investigate any claim. Upon RMI’s knowledge of Mr. McKelvey’s death, it had a duty to immediately inquire further into the cause of Mr. McKelvey’s death to determine the actual cause of death, instead of drawing conclusions based on bare assumptions. It took RMI six months to reopen Mr. McKelvey’s file, and it did so only as a result of Mrs. McKelvey’s death benefit claim.

Mrs. McKelvey has requested additional attorney fees for the work incurred as a result of this appeal. An increase in attorney’s fees is awarded on appeal when the defendant appeals, obtains no relief, and the appeal has necessitated more work on the part of the plaintiffs attorney, provided that the plaintiff requests such an increase. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.1989), writ denied, 553 So.2d 466 (La.1989). A review of the additional work needed by this appeal shows that an increase in the award of attorney fees is reasonable and warranted. Accordingly, we award Mrs. McKelvey an additional $3,000 for the expenses incurred as a result of this appeal. Poirrier v. Otis Engineering Corp., 602 So.2d 207 (La.App. 3 Cir.1992).

IV.

CONCLUSION

In view of the record in its entirety, Mrs. McKelvey carried her burden of proof by a preponderance of the evidence, and successfully proved that the deleterious effect of the combined ingestion of medications caused her husband’s death. Accordingly, we hold that the trial court’s judgment was reasonable in light of the evidence and was neither clearly wrong not manifestly erroneous.

All costs are assessed to the appellant, City of Dequincy.

AFFIRMED.


text:
    ARC INDUSTRIES, L.L.C. v. William H. NUNGESSER.
    No. CW 06-1353.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 21, 2007.

      Henry Camille Perret, Jr., Perret, Doise, Lafayette, LA, for Plaintiff/Respondent, ARC Industries, L.L.C.
    George Pivach, II, Timothy Thriffiley, Pivach, Pivach, Hufft, Belle Chasse, LA, for Defendant/Applicant, William H. Nun-gesser.
    Court composed of JOHN D. SAUNDERS, GLENN B. GREMILLION, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

|,FACTS AND PROCEDURAL HISTORY:

William H. Nungesser (hereinafter “Mr. Nungesser”), a resident and domiciliary of Plaquemines Parish, negotiated to perform consulting services for Arc Industries, L.L.C. (hereinafter “Arc”), a limited liability company domiciled in Iberia Parish and conducting business in Lafayette Parish. To this end, in October 2004, Mr. Nunges-ser and the manager of Arc, Michel Mare-no (hereinafter “Mr. Mareno”), entered into a Letter of Interest, intended as a non-binding framework to further the discussions towards a consulting arrangement. In May 2005, Mr. Nungesser drafted a Consulting Agreement to memorialize the terms of the parties’ proposed bargain. The Consulting Agreement, after numerous revisions proposed by Arc, ultimately was not executed.

Thereafter, Mr. Nungesser contacted Arc and demanded payment for reimbursement of expenses he allegedly incurred from January 2005 through July 2005, and for commission he allegedly earned during July and August 2005. In response, a bookkeeping employee of Arc issued payment, without authorization from Arc, on November 11, 2005. Upon learning of the allegedly erroneous payment, Arc notified Mr. Nungesser of the mistake and ordered its employee not to make any future payment unless a binding agreement with Mr. Nungesser was reached.

On June 16, 2006, Arc brought a petition for declaratory judgment before the Fifteenth Judicial District Court in Lafayette Parish, alleging that Mr. Nungesser never performed any services for Arc and, as such, praying for the return of its putatively erroneous payment to Mr. Nungesser. In response, Mr. Nungesser filed an exception of improper venue, arguing that the parish of Mr. Nungesser’s domicile, Plaquemines Parish, was the only proper venue for such a suit. After a hearing on ^September 25, 2006, Judge Thomas R. Duplantier denied the exception of improper venue. A judgment to this effect was signed by the trial court on October 4, 2006.

Mr. Nungesser then filed with this court an application for supervisory writs on October 20, 2006. We denied that writ application on January 22, 2007, stating that we found no error in the trial court’s ruling.

In February 2007, Mr. Nungesser filed an application for supervisory writs with the Louisiana Supreme Court. The supreme court granted that writ application on April 5, 2007, and remanded the instant matter to this court for briefing, argument, and opinion.

ASSIGNMENT OF ERROR:

1. Did the trial court abuse its discretion and commit manifest error in overruling Mr. Nungesser’s exception of improper venue?

DISCUSSION:

Mr. Nungesser contends that the trial court erred in overruling his exception of improper venue. We disagree.

“Venue is a question of law, which is reviewed de novo by the appellate court.” Price v. Roy O. Martin Lumber Co., 04-0227 (La.App. 1 Cir. 4/27/05), 915 So.2d 816, 824, writ denied, 05-1390 (La.1/27/06), 922 So.2d 543 (citing In re Med. Review Panel Proceedings for the Claim of Tinoco, 03-0272, p. 5 (La.App. 4 Cir. 9/17/03), 858 So.2d 99, 103). “However, the trial court’s factual findings underlying the decision are reviewed under the manifest error standard of review.” Elliott v. Amato and Creely, 05-0376, p. 3 (La.App. 1 Cir. 3/29/06), 934 So.2d 779, 781 (citing Peters v. Alpharetta Spa, L.L.C., 04-0979, p. 3-4 (LaApp. 1 Cir. 5/6/05), 915 So.2d 908, 910; Mart v. Hill, 505 So.2d 1120, 1127 (La.1987)).

“Venue means the parish where the action or proceeding may properly be brought and tried under the rules regulating the subject.” La.Code Civ.P. art. 41. The objection to improper venue is raised by a declinatory exception. La.Code. Civ.P. art. 925. “[A] judgment overruling the declinatory exception raising the objection of improper venue is an appealable judgment because it is an interlocutory judgment that may cause irreparable injury.” A & P Boat Rentals, Inc. v. Am. Lloyd’s, 592 So.2d 1361, 1362 (La.App. 1 Cir.1991) (citing Aetna Ins. Co. v. Naquin, 488 So.2d 950, 952 (La.1986)).

“The general rules of venue are that an action against ... [a]n individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence.” La.Code Civ.P. art. 42; see also Hawthorne Oil & Gas Corp. v. Cont’l Oil Co., 377 So.2d 285, 287 (La.1979) (“Article 42 of the Code of Civil Procedure enunciates the general rule of venue that a person must be sued at his domicile.”). However, “[t]he general rules of venue provided in Article 42 are subject to the exceptions provided in Articles 71 through 85 and otherwise provided by law.” La.Code Civ.P. art. 43. The Louisiana Supreme Court discussed the construction of such exceptions in Jordan v. Central Louisiana Electric Co., 95-1270 (La.6/23/95), 656 So.2d 988. There, the court explained:

[T]he alternative, optional venue provisions contained in La.Code Civ.P. articles 71 through 85 “are an extension, supplement, and legal part of the provisions of Article 42.” As a result, these alternative venue provisions are no longer exceptions to Article 42’s “home base” venue that should be strictly construed, as was formerly required under Hawthorne Oil and Gas Corp. v. Continental Oil, 377 So.2d 285 (La.1979). Rather, these alternative provisions are part and parcel of the general venue rule set forth in Article 42.

Id. at 989 (citations omitted).

Thus, unless the circumstances of the instant case fall within some statutory exception Lsufficient to allow Arc to bring suit in Lafayette Parish, Mr. Nungesser’s declinatory exception of improper venue must be sustained.

Arc asserts that it is authorized to bring suit in Lafayette Parish under the aegis of the La.Code Civ.P. art. 76.1 venue exception. That article reads, in part: “An action on a contract may be brought in the parish where the contract was executed or the parish where any work or service was performed or was to be performed under the terms of the contract.” La.Code Civ.P. art. 76.1.

By way of counterargument, Mr. Nun-gesser contends that La.Code Civ.P. art. 76.1 cannot serve as the basis for venue in Lafayette Parish, as the very allegations contained in Arc’s petition assert that no contract was ever confected between the two parties. In effect, Mr. Nungesser claims that, absent the existence of a contract between himself and Are, the language of La.Code Civ.P. art. 76.1 precludes that provision from supporting venue.

Arc responds that venue is proper under La.Code Civ.P. art. 76.1, even in the absence of a contract, so long as there exists a quasi-contract between the two parties. In support of such contention, Arc cites Tyler v. Haynes, 99-1921 (La.App. 3 Cir. 5/3/00), 760 So.2d 559. There, this court was asked to determine whether La.Code Civ.P. art. 76.1 could support venue in Grant Parish on the basis of the plaintiffs quasi-contractual towage and storage services rendered therein. Answering this question in the affirmative, we proclaimed: “Our conclusion that a quasi-contract exists directs us to Louisiana Civil Code [sic] Article 76.1 ... Accordingly, suit was properly brought in Grant Parish, the parish where the tractor-trailer rig was towed and stored and where the cleanup occurred.” Id. at 564; see also Bloomer v. La. Workers’ Comp. Corp., 99-707, p. 4 (La.App. 1 Cir. 5/12/00), 767 So.2d 712, 715 I fi(“[W]e find it was not in error for the Plaintiff to bring her case in St. Tammany Parish if Plaintiff establishes that the contract (quasi-contract) was either executed or performed in St. Tammany Parish.”). In so holding, this court established the proposition that La.Code Civ.P. art. 76.1 applies equally both to actions brought on contracts and to those brought on quasi-contracts.

Arc further argues that, as with Tyler, the case at bar involves a quasi-contract. Specifically, Arc argues that the instant case involves unjust enrichment.

“Quasi-contracts are willful and lawful acts [that] give rise to obligations without the concurrence of wills, that is, without the agreement of the persons involved that is necessary for the formation of a contract.” Saul Litvtnoff, 5 Louisiana Civil Law TReatise § 1.6, at 10. “Examples ... of quasi-contracts are: the management of the affairs of another (negotiorum gestio) and unjust enrichment.” Corbello v. Iowa Prod., 02-0826, p. 3 (La.2/25/03), 850 So.2d 686, 712 (Knoll, J., dissenting) (citing La. Civ.Code art. 1757) (emphasis added). The claim of unjust enrichment arises when “[a] person ... has been enriched without cause at the expense of another person.... ” La.Civ.Code art 2298. “A person who has received a payment or a thing not owed to him is bound to restore it to the person from whom he received it.” La.Civ.Code art. 2299. “A thing is not owed when it is paid or delivered for the discharge of an obligation that does not exist.” La.Civ.Code art. 2300.

Arc argues that the allegations in its petition state a quasi-contractual claim of unjust enrichment sufficient to support the application of La.Code Civ.P. art. 76.1. We agree. “A plaintiff invoking the provisions of Artiele[ ] ... 76.1 must allege sufficient facts to prove that the chosen venue is proper.” Elliott, 934 So.2d at 782 (citing Sorrento Co. v. Honeywell Int’l, Inc., 04-1884 (La.App. 1 Cir. 9/23/05), 916 So.2d 1156.). “For the purposes of determining a proper venue, the plaintiffs allegations are taken as true.” Id. (citing Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479, p. 6 (La.6/30/00), 764 So.2d 41, 45.). Assuming arguendo the truth of Arc’s allegations, Mr. Nungesser received a payment from Arc that was not owed to him, and he has thus been enriched thereby at the expense of Arc.

Having determined that the instant case involves a quasi-contract sufficient to support the application of La. Code Civ.P. art. 76.1, the question remains whether La.Code Civ.P. art. 76.1 supports venue in Lafayette Parish. Applying La.Code Civ.P. art. 76.1 to the case at bar, the relevant question becomes whether the quasi-contract was “executed” or “performed” in Lafayette Parish. See Bloomer, 767 So.2d 712.

“[T]he appropriate meaning of the term ‘execute,’ for purposes of article 76.1, is the point in time at which a valid contract is created between the parties, regardless of whether the contract is oral or written.” State ex rel. Ieyoub v. Justiss Oil Co., 95-345, p. 2 (La.App. 1 Cir. 11/9/95), 665 So.2d 68, 70. “[A] contract ... may be executed in more than one parish ... For a verbal agreement, venue is proper where either party was located at the point in time at which a valid contract was created between the parties.” Elliott, 934 So.2d at 782.

Arc asserts that, as it was located in Lafayette Parish at the time of the quasi-contract’s execution, La.Code Civ.P. art. 76.1 validates venue in Lafayette Parish. We agree. Here, Arc alleges in its petition that Mr. Nungesser demanded payment from Arc, after which an employee of Arc issued such payment to him. Because Arc’s place of business remained in Lafayette Parish at all times during this period, |7pinpointing the actual moment of execution bears no influence upon the instant determination. Our jurisprudence directs us to determine venue by assuming the truth of the plaintiffs allegations. Based solely upon these allegations, the moment at which the quasi-contract at issue here was executed, if at all, must fall at some point between Mr. Nungesser’s demand and Arc’s subsequent payment. Thus, Mr. Nungesser’s declinatory exception of improper venue must fail. Accordingly, we find his assignment of error without merit.

CONCLUSION:

For the reasons set forth above, judgment of the trial court is affirmed. All expenses to be taxed to appellant.

WRIT DENIED.


text:
    METAL COATINGS, L.L.C., et al v. PETROQUIP ENERGY SERVICES, L.P.
    No. 06-1118.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 21, 2007.

      R. Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for appellee, Metal Coating, L.L.C. and Wade Rebardi.
    J. Lomax Jordan, Lafayette, LA, for appellant, Petroquip Energy Services, L.P.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and BILLY H. EZELL, Judges.
   COOKS, Judge.

| STATEMENT OF THE CASE

This is a suit on an open account. Metal Coatings, L.L.C. sued Petroquip Energy Services, L.P. for the balance of $28,902 for metal coating services. Petroquip answered the petition and asserted, in the form of a reeonventional demand, a claim for fraud and/or deceptive practices by Metal Coatings. Petroquip alleged Metal Coatings overcharged it for painting services. Petroquip also asserted a third party demand against Wade Rebardi, a part-owner in Metal Coatings and an employee of Petroquip, alleging he breached his contract of employment. Metal Coating and Rebardi filed a motion for summary judgment on the open account and a second motion for summary judgment seeking the dismissal of the reeonventional and third party demand. The trial court granted the motion for summary judgment in favor of Metal Coatings on the open account and rendered judgment in the amount of $28,902, and $5,000 attorney fees. The trial court denied Metal Coatings’ motion for summary judgment on the reconven-tional and third party demand. Both parties appealed. For the reasons assigned below, we affirm the decision of the trial court granting the motion for summary judgment in favor of Metal Coatings and reverse the decision of the trial court denying Metal Coatings’ motion for summary judgment finding no genuine dispute as to the issues raised in Petroquip’s reconven-tional and third party demands.

STATEMENT OF THE FACTS

Petroquip Energy Services is an oil and gas service company engaged in the manufacture of parts used in well completion. All parts manufactured by Petroquip must be painted and baked prior to sale and delivery. The record indicates Petroquip was experiencing some problems keeping qualified supervisory personnel. The 1 ¡.testimony also establishes Petroquip had problems in the manufacturing department and was experiencing trouble producing parts in a timely and cost efficient manner. In December 2003, Bill Darnell, president of Petroquip, hired Wade Rebardi as the Operations Manager. Darnell became aware Rebardi was part-owner of Metal Coatings, a company engaged in providing coating services for manufactured parts. At that time, Petroquip’s coating work was being done by Webco. Darnell was dissatisfied with Webco pricing and he authorized Rebardi to contract with Metal Coatings to provide coating services for the parts manufactured by Petroquip.

Metal Coatings provided coating services to Petroquip from January 2004 until September 2004. Many of the Metal Coatings invoices generated during this time period reflect the work to be performed for Petroquip was designated as “hot,” meaning the coating had to be completed on an expedited schedule, sometimes overnight. In fact, James Steen, co-owner of Metal Coatings, testified 98% of Petro-quip’s work was designated as “hot.” Re-bardi testified Petroquip’s manufacturing department did not produce the part timely and would be unable to fulfill its contract for delivery of the part unless the coating work was done overnight. The cost for expedited service is higher.

Sometime in September a conflict developed between Fred Wong, Petroquip’s engineering manager, and Rebardi. Rebardi was terminated by Darnell but his salary and benefits were paid until he obtained other employment. Rebardi’s replacement, Ty Livingston, confirmed Petroquip parts were not being manufactured properly or timely. He fired all manufacturing personnel and hired an all new staff. He then examined the cost Petroquip was paying to Metal Coatings for coating services and concluded it was too high. The payments on invoices ceased and suit was instituted by Metal Coatings for the balance due on the account. Petroquip filed a Lreconventional demand against Metal Coatings for fraud and deceptive practices for overcharging on invoices. Petroquip filed a third party demand against Rebardi for breach of the contract of employment. Particularly, Petroquip contends Rebardi’s contract requires its employees to “give his best efforts to promote advance in the financial and technical side of the company.” Petroquip contends Rebardi was responsible for approving invoices submitted by Metal Coatings, which charges were higher than competitor prices for the same services. Metal Coatings and Rebardi contend the work done for Petroquip was almost always “hot” or marked for expedited delivery and the prices charged were in fact competitive with other companies providing the same expedited services.

LAW AND DISCUSSION

Appellate courts review summary judgments de novo under the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate. Chrysler Financial Company, L.L.C. v. Gene Ducote Automotive, L.L.C., 04-1223 (La.App. 5 Cir. 3/1/05), 900 So.2d 119. A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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.Code Civ.P. art. 966. The statute governing an open account is contained in La.R.S. 9:2781, which provides, in relevant part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. 14Receipt of written demand by the person is not required.
B. If the demand is forwarded to the person by first class mail to his last known address, a copy of the demand shall be introduced as evidence of written demand on the debtor.
C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant’s attorney within ten days after service of the petition in city court and fifteen days after service of the petition in all other courts.

In order to prevail in a suit on an open account, the creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing evidence regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991). Petro-quip does not dispute that Metal Coatings provided coating services on a credit account over a period of months. Purchase orders in the amount of $51,165.19 are contained in the record. Petroquip paid $22,263.19 of the total amount leaving a balance of $28,902. Petroquip does not dispute the accuracy of the credit account, but asserts, as a defense, that Metal Coating engaged in fraud and deceptive practices by overcharging for coating services. Petroquip also alleges Rebardi, as both an employee of Petroquip and co-owner of Metal Coatings, had an inherent conflict of interest when he authorized the payment of the allegedly inflated invoices. Petro-quip contends Rebardi’s responsibility under his contract of employment was to further the financial interest of Petroquip. Petroquip styled its defense to the suit on the open account as a reconventional demand and third party claim. Metal Coatings then filed a motion for summary judgment on the claims. The essential issue in this case is whether the amount charged by Metal Coatings was fair reasonable and legally chargeable orj^whether Rebardi, as a co-owner of Metal Coatings, engaged in deception and fraud in overcharging Petro-quip at an unconscionable rate to further his own company’s interest.

Under La.Code Civ.P. art. 966 the moving party on a summary judgment bears the burden of proving that there are no genuine issues of material fact. Once the mover makes a prima facie showing, the burden shifts to the nonmover to rebut the showing made by the mover. Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323. In support of its motion for summary judgment, Metal Coatings offered the deposition testimony of the two co-owners, Rebardi and James Steen. Both Rebardi and Steen testified the amount charged by Metal Coatings was in keeping with charges for expedited services. They testified Petroquip work orders called for expedited delivery. In fact, Steen testified 98% of Petroquip’s work was overnight. Sometimes the parts were delivered as late as 7:00 p.m. for completion by the next morning. The parts received from Petroquip were just off the assembly line and were often so hot they had to use insulated gloves. Steen testified Metal Coatings would process Pe-troquip’s work with other customers in an effort to reduce costs. Steen stated the price for expedited delivery was higher than for work done on a normal delivery schedule. Rebardi testified Petroquip’s manufacturing process was always behind schedule and the manufacturing equipment was always broken. Due to manufacturing delays the parts had to be coated overnight in order to meet Petroquip’s contract orders. The testimony of Ty Livingston confirmed that the manufacturing department at Petroquip was always behind schedule. When he was hired as Rebardi’s replacement, he fired all employees in the manufacturing department and started with a whole new staff. It is undisputed the expedited services rendered by Metal Coatings were requested by Petroquip and essential to Petroquip ^fulfilling its obligation to third party customers. Nevertheless, Petroquip submitted price quotes from Webco, another coating company, apparently in an effort to show Metal Coatings’ charges were unfair under the circumstances. While the Webco price quotes reflected prices below Metal Coating, Petroquip did not produce any documentary evidence or testimony that the Webco prices reflected service comparable to Metal Coatings. Wflien questioned regarding the Webco price quotes, Ty Livingston admitted he has limited knowledge of the coating business, has not done a market analysis of coating costs, cannot testify that Metal Coatings invoices did not reflect expedited work and cannot testify that Metal Coatings charged more than other companies for the same work. Further, Bill Darnell, president of Petroquip, testified that he was aware when Rebardi was hired that he was a part-owner of Metal Coatings. In fact, he advised Re-bardi to use Metal Coatings. He has no knowledge that Metal Coatings overcharged on invoices or whether the work was designated for expedited service. We have reviewed the record and are satisfied Petroquip will not be able to provide sufficient evidence to prevail on its reconven-tional and third party demand, namely by proving the invoices charged by Metal Coatings were not for expedited work and Rebardi and Metal Coatings engaged in fraud and deceptive practices. Accordingly, we reverse the decision of the trial court denying Metal Coatings’ motion for summary judgment. We affirm the decision of the trial court granting Metal Coatings’ motion for summary judgment on the open account.

The trial court awarded $5,000 in attorney fees. Louisiana Revised Statutes 9:2781 authorizes an award of reasonable attorney fees. The amount awarded is left to the sound discretion of the trial court and should not be disturbed on appeal absent a showing of abuse. Metropolitan Reporters, Inc. v. Avery, 95-504 (La.App. 5 Cir. 11/28/95), 665 So.2d 547. There are several factors to be considered including the ultimate result obtained, the nature of the case, the amount of time and skill involved and the ability of the party liable to pay. Id. We find no abuse of discretion in the trial court’s award of $5,000 in attorney fees.

DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court granting Metal Coatings’ motion for summary judgment on the open account. We reverse the decision of the trial court denying Metal Coatings’ motion for summary judgment on Petroquip’s reeonven-tional and third party demand. We affirm the award of attorney fees in the amount of $5,000. All costs of this appeal are assessed to Petroquip Energy Services.

AFFIRMED, IN PART; AND REVERSED, IN PART.


text:
    Patrick G. MURRY, et ux. v. Charlotte Vallee MURPHY.
    No. CA 07-720.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 21, 2007.
    Gregory Norman Wampler, Lemoine & Wampler, Pineville, LA, for Defendant/Appellant, Charlotte Vallee Murphy.
    James Francis Slaughter, Attorney at Law, Colfax, LA, for Plaintiffs/Appellees, Patrick G. Murry, Melanie Womack Mur-ry.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   SAUNDERS, Judge.

11 This ease concerns a dispute over a contract to lease and purchase a piece of property. The plaintiffs were acquiring the subject property from the defendant and the estate of her husband. The plaintiffs were acquiring the property for the purpose of conducting business.

The plaintiffs filed suit against the defendant alleging a breach of the contract. Defendant did not answer the suit. The plaintiffs, after amending the suit to add the estate of the defendant’s husband, moved for and were granted a default judgment awarding them ownership of the property, $20,000 for loss of profit, and $5,000 in attorney’s fees plus court costs. Defendant appealed, alleging five assignments of error.

We vacate the default judgment reached by the trial court, and remand the case to the trial court for further proceedings not inconsistent with this opinion.

FACTS AND PROCEDURAL HISTORY:

On April 10, 2002, Patrick and Melanie Murry (“the Murrys”) entered into a Lease and Agreement to Buy and Sell (“the agreement”) with Charlotte Murphy (“Murphy”). According to the terms of the agreement, the Murrys leased a tract of property from Murphy with an arrangement to subsequently purchase that property.

On August 11, 2004, the Murrys filed suit in the 35th Judicial District Court alleging that Murphy had breached the agreement. Murphy did not answer the lawsuit, and a preliminary default was entered against her on October 18, 2004. Thereafter, on June 6, 2006, the Murrys filed an amendment to the suit to add as a defendant the estate of Charlotte Murphy’s deceased husband, Mahlon Murphy. A second preliminary default was entered on August 7, 2006.

On October 23, 2006, the preliminary default judgment was confirmed and 12signed. The judgment awarded the Mur-rys “the property,” reimbursed the Murrys $20,000 for lost profit, and awarded the Murrys $5,000 for attorney’s fees plus court costs.

Murphy appealed the judgment raising five assignments of error. The first four assignments address the propriety of the default judgment. The fifth assignment of error raises the issue of the propriety of the trial court awarding the Murrys $5,000 in attorney’s fees.

ASSIGNMENTS OF ERROR:

1. Did the trial court err by confirming the default judgment in that there was insufficient evidence adduced for that purpose?
2. Did the trial court err in confirming the default judgment without evidence in the record of service of process upon the Estate of Mahlon Murphy?
3. Did the trial court err in confirming the default judgment without evidence in the record that Charlotte Murphy was the administratrix of the Estate of Mahlon Murphy?
4. Did the trial court err in confirming the default judgment when much of the evidence upon which the judgment was based was impermissible hearsay?
5. Did the trial court err in awarding attorney’s fees to the plaintiffs?

ASSIGNMENT OF ERROR # 1:

Murphy argues that the trial court erred by confirming the default judgment, contending there was insufficient evidence adduced for that purpose. We agree.

When an appellate court reviews a default judgment, it must look to the record to determine whether there is sufficient evidence to support that default judgment. Taylor v. Dowden, 563 So.2d 1294 (La.App. 3 Cir.), writ denied, 568 So.2d 1057 (La.1990).

Our Louisiana Supreme Court, in Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989), established the plaintiffs burden of proof to obtain a default judgment:

| -¡For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though each of the allegations in the petition were denied by the defendant. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. (Citations omitted.) Louisiana Civil Code Article 1767 states: A conditional obligation is one dependent on an uncertain event.
If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive.
If the obligation may be immediately enforced but will come to an end when the uncertain event occurs, the condition is resolutory. (Emphasis added.)

In the case before us, the Murrys filed a petition for specific performance and damages based upon Murphy’s failure to perform according to the terms of a lease and agreement to buy and sell. Therefore, under the standard regardihg default judgments above, the Murrys must put forth prima facie evidence that, according to the terms of the agreement, Murphy’s performance was due. They have failed to do so.

Page 1, Paragraph 3 of the Lease and Agreement to Buy and Sell entered into the record as the agreement between the Murrys and Murphy is as follows:

3. The actual transfer of the property described above shall be by warranty deed, free from all liens and other encumbrances except as noted below, and shall, unless an earlier time is mutually agreed upon, be consummated not later than sixty (60) days following court approval by the 35th Judicial District Court for the sale of the interest of the Succession of Mahlon Murphy. (Emphasis added.)

According to Paragraph 3 of the agreement, there is a suspensive condition that must be met prior to an actual transfer of the property taking place. That suspensive condition is the 35th Judicial District Court’s approval of the sale. Because there is no evidence in the record that the 35th Judicial District Court approved the sale, and such approval is a suspensive condition in the agreement, the Murrys cannot attempt to |4have the trial court order Murphy to specifically perform the terms of the agreement, as Murphy’s performance is not yet due. “[t]he right to enforce the obligation does not arise until the fulfillment of the suspensive condition, and the obligation may not be enforced until the condition is met.” Hampton v. Hampton, Inc., 97-1779, p. 8 (La.App. 1 Cir. 6/29/98), 713 So.2d 1185, 1190. Therefore, the 35th Judicial District Court’s approval of the sale is a prima facie element of the case and its existence must be part of the record. The record has no such evidence.

The parties can circumvent the court approval required in Paragraph 3 by mutual agreement. However, the record has no such evidence of a mutual agreement between the Murrys and Murphy to forego the 35th Judicial District Court’s approval.

Therefore, given that the record is without any evidence that the Murrys have completed a necessary prerequisite to seek the trial court to force Murphy to specifically perform the terms of the agreement, and given that such evidence is a prima facie element of the case, we find that there is insufficient evidence to support the default judgment granted by the trial court. Accordingly, we vacate the default judgment granted to the Murrys by the trial court and remand the case for further proceedings.

ASSIGNMENTS OF ERROR # 2-# 5:

In assignments of error #2-# 5 Murphy raises other insufficiencies of the default judgment granted by the trial court as well as an assignment related to the propriety of the trial court awarding attorney’s fees to the Murrys. Due to our finding in Assignment of Error # 1, a discussion of the trial court’s ruling on the service of process upon the estate of Mah-lon Murphy, the lack of evidence in the record that Charlotte Murphy was the ad-ministratrix of the estate of Mahlon Murphy, whether |Bthe default judgment was based primarily upon impermissible hearsay, and whether the trial court erred in awarding attorney’s fees to the Murrys is pretermitted at this time.

CONCLUSION:

Murphy raised five assignments of error. The first four assignments addressed the propriety of a default judgment against Murphy in favor of the Murrys that granted the Murrys ownership of “the property” and $20,000 for loss of income. The fifth assignment of error contended that the trial court erred in awarding the Murrys $5,000 in attorney’s fees. We vacate the default judgment reached by the trial court and remand the case to the trial court for further proceedings not inconsistent with this opinion. All costs associated with this appeal are to be paid by the Murrys.

REVERSED AND REMANDED.