author: GASKINS, J.

text:
    Randy DANIELS, Plaintiff-Appellant v. HEMPHILL CONSTRUCTION COMPANY, Defendant-Appellee.
    No. 45,946-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    Rehearing Denied Feb. 24, 2011.

      Randy Daniels, In Proper Person.
    Theus, Grisham, Davis & Leigh, Monroe, LA by Marcy L. Allen, for Defendant-Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   GASKINS, J.

12In this workers’ compensation case, the claimant appeals from a judgment finding that he committed fraud to obtain benefits in violation of La. R.S. 23:1208, ordering him to make restitution to his employer for all indemnity and medical payments made to him from January 18, 2004, to March 20, 2006, and dismissing his claims with prejudice. We affirm.

FACTS

The claimant, Randy Daniels, was employed by Hemphill Construction Company as a combination operator. On March 12, 2003, a few days after he began work for Hemphill, he was a passenger in a truck driven by Giddis Leon Temple, also a Hemphill employee and the claimant’s foreman, when the truck was involved in an accident in Monroe, Louisiana. While backing up at between five and 10 mph, the truck struck another vehicle. According to the claimant, he complained to his foreman of pain the next day. He was then confronted by a superintendent with a positive drug screen and fired.

laOn April 23, 2003, the claimant filed a disputed claim for compensation with the Office of Workers’ Compensation (ÓWC). He alleged that he was injured in the March 2003 auto accident while riding as a passenger in a company-owned extended cab driven by a Hemphill foreman. He stated that he injured his shoulder, neck, back and feet. He further asserted that the employer paid him no wage benefits and refused to authorize medical treatment or an evaluation.

The employer generally denied the claims and stated that the injury was never reported to it while the claimant was employed by it. In its subsequent pretrial statement, the employer conceded that the claimant was in the course and scope of his employment at the time of the accident. However, it also alleged that the accident was “extremely minor,” the claimant was not injured, and no report of injuries was made by the claimant while he was still employed by the company.

In January 2004, the claimant was involved in a second auto accident which was not work related. On March 30, 2004, the claimant’s doctor, Dr. Randy Head, prepared a letter noting this accident and stating that while it had increased the claimant’s pain from the previous accident, the pain was at baseline “so pain secondary to the motor vehicle accident has resolved.” The ^claimant was released from treatment for the motor vehicle accident as of the date of the letter.

In March 2006, Dr. Head prepared another letter indicating that any medical treatment the claimant received after the January 2004 accident was not related to the March 2003 work-related accident. Dr. Head stated that the claimant’s low back pain was at baseline prior to the January 2004 accident and that no further medical treatment should have been the responsibility of workers’ compensation for the March 2003 injury.

In April 2006, the employer filed an amended answer in which it asserted that it had received information that the claimant had willfully made false statements or misrepresentations to health care providers in order to receive workers’ compensation benefits. These assertions apparently concerned the second accident. The employer sought to terminate the claimant’s rights to receive benefits based on La. R.S. 23:1208(E). It also requested restitution for benefits paid to the claimant.

In October 2006, the claimant saw Dr. Head for the last time. According to Dr. Head, the claimant asked him to “change [his] story” so that the claimant “could be paid.” Dr. Head further stated that the claimant told him that he had “messed up” the claimant’s lawsuit. Dr. Head documented the conversation in his office notes for that visit.

|BIn March 2007, the claimant filed an amended claim with the OWC. He asserted that no medical treatment had been authorized and no orthopedist had been approved to examine him. He also requested penalties and attorney fees.

In its answer to the amended claim, the employer denied that the claimant sustained any injury as a result of the car accident. Alternatively, it denied that the claimant was currently disabled; if he sustained any injury, the employer asserted that it was only a temporary aggravation of a preexisting degenerative condition and that he was recovered. Furthermore, among other things, the employer accused the claimant of violating La. R.S. 23:1208 by submitting false testimony and statements to secure benefits.

In January 2008, the employer filed a motion for summary judgment based upon the claimant’s alleged violation of La. R.S. 23:1208. Specifically, it asserted that the claimant was involved in another auto accident on January 18, 2004, which he never reported to the workers’ compensation carrier or to three of the doctors who saw him and that Dr. Head learned of it independently. The employer alleged that Dr. Head was of the opinion that the March 2003 accident did not injure the claimant. Dr. Head testified in his deposition that on October 24, 2006, the claimant asked Dr. Head to change his medical records so the claimant could “get paid” for |fihis March 2003 accident. Dr. Head also testified that the claimant asked him to make false statements about his condition and treatment in order to secure benefits. In support of the motion, the employer submitted Dr. Head’s deposition and medical records, as well as the claimant’s deposition.

The claimant filed an opposition to the motion for summary judgment in which he denied making the alleged statements. He argued that summary judgment was not appropriate because the trier of fact needed to assess the credibility of the witnesses. In support of his opposition, he filed an affidavit in which he denied making the claimed statements to Dr. Head. He also stated that he never gave information to his treating doctors about his subsequent accident because they did not ask for such information.

Following a hearing on April 21, 2008, the workers’ compensation judge (WCJ) denied the motion for summary judgment based on the credibility issue.

The matter was tried on July 9, 2009. Testimony was given by the claimant; Dr. Head; Mr. Temple, the driver of the vehicle in which the claimant was injured in March 2003; and Bryan Johnson, an insurance adjuster. The claimant emphatically denied ever asking Dr. Head to change his story about the claimant’s case. Dr. Head testified that at his last appointment the claimant asked him to change his story so the claimant |7could get paid. According to Dr. Head, he told the claimant that he could only tell the truth, would not change his story, and would not fabricate records. The claimant stated that the doctor had “messed up” his lawsuit. When he asked the claimant what he wanted him to do, the claimant replied, “Change your mind so I can get paid.” Dr. Head testified that he told the claimant that he could only tell the truth and that he would not lie for any reason or any amount of money. Dr. Head’s notes from this visit corroborated his testimony.

At the conclusion of the case, the WCJ ruled in favor of the employer. After addressing concerns as to the credibility of both the claimant and Dr. Head, the WCJ concluded that the claimant did in fact ask the doctor to change his opinion. Furthermore,- the WCJ found that he willfully attempted to have Dr. Head make a false statement in order to obtain benefits. Because the claimant’s actions violated La. R.S. 23:1208, the WCJ found that he forfeited his rights to workers’ compensation and that the employer was entitled to restitution from January 18, 2004, the-date of the second accident, to March 20, 2006, the date of Dr. Head’s letter.

The claimant, who was then proceeding in proper person, filed a motion for new trial. He asserted that Dr. Head committed perjury and fraud |Rm his testimony. Following argument on December 13, 2009, the WCJ denied the motion.

The claimant appealed.

LA. R.S. 23:1208 FRAUD

In his pro se brief, the claimant mainly sets forth his version of the facts. He argues that Dr. Head’s testimony and medical records involved false swearing, inconsistent statements, and perjury. He contends that it was inconsistent for the doctor to document an injury and treat him and then later state that he did not believe the claimant was injured from the beginning. He further asserts that the WCJ’s judgment rested on “an inadvertent and inconsequential false statement with no foundation of rational reason.”

The employer argues that the issue before this court — whether the WCJ erred in finding that the claimant forfeited his entitlement to benefits — involves factual determinations as to credibility which are within the province of the trier of fact. It maintains that the record does not show that the WCJ was manifestly erroneous or clearly wrong in her findings of fact. In addition to the conflict between the testimony of the claimant and Dr. Head, the employer points to the claimant’s failure to advise two doctors who saw him in February 2004 about the January 2004 accident because he did not think it was necessary.

lgLaw

La. R.S. 23:1208 provides, in relevant part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be ... ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and (3) it is made for the purpose of obtaining or defeating any benefit or payment. The statute applies to any false statement or misrepresentation made willfully by a claimant for the purpose of obtaining benefits. All of these requirements must be present before a claimant can be penalized. Baker v. Stanley Evans Logging, 42,156 (La.App.2d Cir.6/20/07), 960 So.2d 351, writ denied, 2007-1817 (La.12/14/07), 970 So.2d 533; Slater v. Mid-South Extrusion, 43,343 (La.App.2d Cir.8/13/08), 989 So.2d 252. Because statutory forfeiture of workers’ compensation benefits for willfully making a false statement for the purpose of obtaining benefits is a harsh remedy, it must be strictly construed. Risk Management Services v. Ashley, 38,431 (La.App.2d Cir.5/14/04), 873 So.2d 942, writ denied, 2004-1481 (La.9/24/04), 882 So.2d 1138. The relationship between the false statement and the pending claim will be probative in determining whether the statement was made willfully for the purpose of obtaining benefits. An inadvertent and inconsequential false statement will not result in the forfeiture of benefits. Baker v. Stanley Evans Logging, supra; Slater v. Mid-South Extrusion, supra.

The WCJ’s decision to impose or deny forfeiture under La. R.S. 23:1208 is a factual finding which will not be disturbed on appeal absent manifest error. Brooks v. Madison Parish Service District Hospital, 41,957 (La.App.2d Cir.3/7/07), 954 So.2d 207, writ denied, 2007-0720 (La.5/18/07), 957 So.2d 155.

When a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); Wilson v. General Motors Corporation, 45,232 (La.App.2d Cir.5/26/10), 37 So.3d 602. When there is a conflict in the testimony, L,reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, supra; Read v. Pel-State Oil Company, 44,218 (La.App.2d Cir.5/20/09), 13 So.3d 1191. Where the fact finder’s conclusions are based on determinations regarding credibility of the witnesses, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, supra; Hansford v. St. Francis Medical Center, Inc., 43,984 (La.App.2d Cir. 1/14/09), 999 So.2d 1238. When there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Wilson v. General Motors Corporation, supra.

Discussion

We have reviewed the evidence presented at trial, including the testimony of the claimant and Dr. Head. The WCJ observed both the claimant and Dr. Head and ultimately concluded that Dr. Head’s testimony that the claimant had- asked him to change his story so the claimant could, recover benefits was more credible than the claimant’s denial of the same. Based upon our review, we are unable to find that the WCJ was manifestly |12erroneous or clearly wrong in its factual findings. Resolving issues of witness credibility is a matter best left to the trier of fact who has the benefit of observing the witnesses and their demeanor at trial.

The record fully supports the WCJ’s credibility finding against the claimant. His testimony was replete with contradictions. On the one hand, he gave a detailed account of the events preceding the first accident in which his foreman was driving; then he stated that he was asleep at the time of the accident and was jolted awake. The claimant testified that immediately after the accident he felt stiffness but not pain. Yet in his 2006 deposition, he stated that he immediately felt pain. The claimant testified that the day after the accident he told his foreman that he was injured; he then explained to his superintendent about how he had been injured in the accident, only to be immediately fired due to a positive drug test. However, in his 2003 deposition, the claimant stated that he was fired before he had a chance to tell the superintendent.

As to the second accident, the claimant was equally contradictory. He testified at trial that it was a low impact collision; yet in his 2006 deposition, he testified that it “completely smashed in” the door of the vehicle he was driving. He also testified at trial that it exacerbated his prior injuries. He stated that he suffered a slight whiplash, his neck was extremely sore, and | iahis shoulders were irritated. However, he felt no need to mention the January 2004 accident to Dr. Brown or Dr. McHugh, both of whom he saw the following month. Additionally, in his 2006 deposition, he testified that the second accident neither increased nor decreased his pain.

At trial, the claimant was using a walking cane. He testified that Dr. Head suggested its use. He was confronted with a statement in Dr. Head’s notes that the claimant had requested the cane. Furthermore, Dr. Head testified that, based upon the claimant’s x-rays and physical exam findings, he did not know why the claimant would need a cane.

Accordingly, we affirm the WCJ’s finding that the claimant committed fraud under La. R.S. 23:1208, her consequent order that the claimant pay restitution, and her rejection of the claimant’s demands with prejudice.

CONCLUSION

The ruling of the WCJ is affirmed. Costs of this appeal are assessed to the appellant/claimant.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, PEATROSS, DREW and LOLLEY, JJ.

Rehearing denied.

      . Although the parties stipulated that the accident occurred on March 12, 2003, we note that the date given in the accident report was March 11, 2003.

      . Dr. Head later testified that the letter was to State Farm Insurance Company. He felt that the claimant was at baseline — or maximum medical improvement — on his work-related workers' compensation injury.

      .In this letter, Dr. Head also mentioned that the claimant saw Dr. Bernie McHugh on February 26, 2004, and Dr. Douglas Brown on February 27, 2004; yet the claimant could only "vaguely” recall seeing Dr. McHugh in the history taken by Dr. Brown the next day. Also the claimant failed to mention the accident on January 18, 2004 which increased his low back pain.

      . The doctor's notes for the October 24, 2006, visit read as follows: "Pt. basically asked me to change my story about his case so he could be paid. I told him I would not[,] I only tell the truth, and for 10 million $ I would not fabricate anything for anyone.”

      . Although he did not specifically remember the claimant, the foreman was able to testify at trial that none of his passengers from that accident ever told him they were injured.

      . The photos admitted into evidence of the vehicle driven by the claimant show a very minor collision with a part of a door dented.

      .The record suggests that the claimant filed a personal injury claim with State Farm for the second accident; however, the evidence on this issue is less than clear.


source: Caselaw Access Project

author: LOLLEY, J.

license: Public Domain

text:
    Richard ADCOCK, Plaintiff-Appellant v. James H. EWING, Jr. and Amy Ewing, Defendants-Appellees.
    No. 45,949-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      L. Havard Scott, III, for Appellant.
    Jody T. Benson, for Appellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

12Richard W. Adcock appeals the judgments of the First Judicial District Court, Parish of Caddo, State of Louisiana, one of which granted the motion for summary judgment in favor of James H. Ewing, Jr. and Amy Ewing and the other which denied his motion for partial summary judgment. For the following reasons, we affirm both judgments.

Facts

The genesis of this particular appeal is a lawsuit in the First Judicial District Court entitled “James EL Ewing and Amy Ewing versus A-l Regional Pools & Patio, Inc. and Richard Adcock” (the “original proceeding”). As alleged in the original proceeding, in November 2003, James and Amy Ewing entered into a contract with A-l Regional Pools and Patio, Inc. (“A-l Pools”) for the construction of a svumming pool at the Ewings’ residence in Shreveport, Louisiana. Richard Adcock was employed by A-l Pools. The total price for the pool’s construction was to be $25,000.00, of which the Ewings paid $19,000.00 up front. The balance was |sto be paid in payments of $3,000.00 at stages during the pool’s construction. According to the Ewings, they paid one of the additional $3,000.00 payments to Adcock, but work stopped on the pool and was not completed. The Ewings had to hire another contractor to complete the work at a cost of $13,000.00 and had to satisfy a materials lien by a subcontractor in the amount of $3,852.04.

In June 2004, the Ewings filed their lawsuit against A-l Pools and Adcock, claiming that he was personally liable for A-l Pools’ breach of contract because “he is the alter ego of A-l Pools.” Adcock was served personally on August 25, 2004, with the lawsuit, but service was not made on A-l Pools. In their appeal brief, the Ew-ings claim that Adcock was served while housed at the Caddo Correctional Center — it is not completely clear for what crime he was serving time. No answer was ever filed by Adcock in the original proceedings, and in January 2005, the Ew-ings had a preliminary default entered against him. On April 11, 2005, the default judgment against Adcock was confirmed, and the next day the notice of judgment was mailed to Adcock. The default judgment in the original proceedings was not appealed and became a final judgment.

On April 10, 2006, Adcock filed his action to nullify the default judgment against him. Opposing motions for summary judgment were filed [4by the parties, and after a joint hearing, the trial court granted the Ewings’ motion for summary judgment, denying Adcock’s. Two judgments were entered, and this appeal by Adcock ensued.

Discussion

An action of nullity of judgment seeks to annul an improperly obtained judgment because of vices of form or substance. La. C.C.P. art.2001. A judgment may be annulled for vices of form when it has either been rendered against an incompetent not represented'as required by law;- against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid default judgment has not been taken; or by a court which did not have subject matter jurisdiction. La. C.C.P. art. 2002(A); Knutsen v. Prince, 40,109 (La.App.2d Cir.09/21/05), 911 So.2d 404. A judgment may also be annulled for vices of substance when it was obtained by fraud or ill practices. La. C.C.P. art. 2004(A). Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer. Power Marketing Direct, Inc. v. Foster, 2005-2023 (La.09/06/06), 938 So.2d 662; Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983).

| fiThe purpose of an action for nullity is to prevent an injustice, which cannot be corrected through new trials and appeals. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La.10/16/01), 800 So.2d 762. However, a party bringing an action attacking a judgment is not allowed to reargue old issues. Haney v. Davis, 2004-1716 (La.App. 4th Cir.01/19/06), 925 So.2d 591. The proper procedure to remedy a failure of proof is through a motion for a new trial and/or an appeal, and not through an action for nullity. Russland Enterprises, Inc. v. City of Gretna, 1998-676 (La.App. 5th Cir.01/26/99), 727 So.2d 1223, writ denied, 1999-0980 (La.05/28/99), 743 So.2d 669.

Specifically regarding a suit to annul a default judgment, La. C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant against “whom a valid judgment by default has not been taken.” National Income Realty Trust v. Paddie, 1998-2063 (La.07/02/99), 737 So.2d 1270. In National Income, the court went on to note, “It is well settled that this article applies only to technical defects of procedure or form of the judgment. The failure to establish the prima facie case required by La. C.C.P. art. 1702 is not a vice of form. A failure of proof must be raised in a motion for new trial or by appeal, not by an action for nullity.” Id. at 1271 (citations omitted).

| ^Adcock sought annulment of the Ewings’ défault judgment against him, claiming that the default judgment was not valid, a vice of - form, and it was obtained by ill practices. Whereas the trial court did not believe that there was sufficient evidence to sustain a default judgment against Adcock personally, it correctly noted that “insufficiency of evidence/failure to establish a prima facie case in confirming a default is not a valid basis to nullify a judgment.” On appeal, Adcock argues that the trial court erred in granting the Ewings’ -motion for summary judgment, dismissing his claim to annul the default judgment. We disagree.

Initially, Adcock claims that summary judgment was inappropriate because genuine and disputed material facts existed in this litigation. Specifically, he maintains that two genuine issues of material fact existed which made the Ewings’ summary judgment improper. Summary judgment can be granted only when a genuine issue of material fact does not exist. La. C.C.P. art. 966(B) and (C). Whether a fact is material depends on the substantive law that governs the claims in a particular case. Pritchard v. American Freightways Corp., 37,962 (La.App. 2 Cir. 12/10/03), 862 So.2d 476. A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Jones v. Estate of Santiago, 2003-1424 (La.04/14/04), 870 So.2d 1002. First, |7Adcock submits that he had been dismissed by the Ewings in the 2005 proceeding, making a default judgment against him absolutely null. Second, he states that the default judgment was obtained through ill practices because it was different in kind from that demanded in the petition.

As to the dismissal argument, we agree with the trial court that it has no merit. Adcock takes the position that he was dismissed from the original proceeding on January 3, 2005, when the Ewings’ attorney, Todd Benson, attempted to enter a preliminary default against Adcock. Apparently, when the “drop-slip” was completed by Benson’s legal assistant, instead of checking the “default” option, the “dismissal” option was checked. During the original proceedings Benson explained that he noticed the mistake and had his legal assistant call the deputy clerk at the clerk’s office. According to Benson, the minute clerk informed his 'assistant that she would check the “default” box and that Benson should forward another default slip to the clerk’s office. No action was ever taken on a “dismissal” of Adcock from the litigation, and it is clear that a judgment of dismissal was never entered by the trial court dismissing him. Benson submitted a second default slip to the clerk’s office, and the deputy clerk noted the date as January 3, 2005 (the date of submission of the original erroneous slip). On April 11, 2005, the | ^default against Adcock was ultimately confirmed in the original proceedings.

The trial court noted that “[sjignificantly, the clerical mistake is not legally tantamount to a judgment of dismissal.” We agree. The Ewings’ attorney made a simple mistake, which he promptly rectified. There was no formal motion to dismiss made and no action was taken by the trial court on the mistake made by the Ewings’ attorney. Importantly, the trial court never entered a judgment dismissing Adcock from the original proceedings, which would be required in order to effect a dismissal of any party to the litigation. See La. C.C.P. arts. 1671, et seq. Consequently, we conclude that this alleged issue is not genuine and the trial court correctly did not let it stand in the way of granting a summary judgment in favor of the Ewings.

Adcock also maintains that the default judgment was obtained by ill practices sufficient to warrant the annulment of the Ewings’ default judgment as provided for in La. C.C.P. art. 2004. Specifically, he maintains that the scope of the default judgment was different in kind from the demands of the petition. The Louisiana Supreme Court reviewed the historical development of La. C.C.P. 2004 and noted the following criteria for an action in nullity and determining what is an ill practice: (1) that the circumstances under which the judgment was rendered showed the | ¡¡deprivation of legal rights of the litigant seeking relief; and (2) that the enforcement of the judgment would have been unconscionable and inequitable. See Belle Pass Terminal, supra; Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219 (La.1982). An action to annul based on art. 2004 is not limited to actual fraud or intentional wrongdoing. It encompasses those situations where judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right. Kem Search, supra.

Here, it does not appear that an ill practice as to this default judgment occurred. Procedurally, the Ewings followed the proper course in obtaining the default judgment. Additionally, considering the record before us, the enforcement of the judgment would not have been unconscionable and inequitable. However, even if we were to consider the actual specifics of Adcock’s claim of ill practices, this argument has no merit.

According to Adcock, under the facts asserted in the Ewings’ original petition, they sought recovery for breach of contract against A-l Pools and him personally under an alter ego theory. However, Ad-cock states that the default judgment was granted on the grounds of rescission of the contract based on error or fraud, making the default judgment in violation of La. C.C.P. art. 1703 which states in pertinent part that a “judgment by default |10shall not be different in kind from that demanded in the petition.” As stated in the Official Revision Comment, “This article is essential to prevent the judgment by default from going beyond the scope of the prayer.”

The transcript of the default confirmation hearing reflects that after reviewing the record and hearing James Ewings’ testimony, the trial court asked Mr. Benson, the Ewings’ attorney:

Judge Garrett: What amount is it that you contend you are entitled to?
Mr. Benson:. Well, Your Honor, there was twenty-two thousand paid to Mr. Adcock. We would ask for rescission and refund of that amount, plus [$3,852.04] on the lien....

Thus, it appears that based on the use of the word “rescission” to describe the relief his client sought, Adcock takes the position that the default judgment exceeded the scope of the pleadings against him. Notably, the trial court never stated that the contract between the parties was rescinded or that the monetary award was based on a rescission of the contract between the parties. It appears that the only reference to rescission was as used by the Ewings’ attorney in a request for a refund of money paid under the contract.

Moreover, the default judgment in this case did not exceed the scope of the prayer in the amount of the monetary award to the Ewings. The Ewings’ petition stated the total contract amount, as well as the amount factually paid to Ad-cock by the Ewings ($22,000.00). The petition also included allegations that two liens by subcontractors had been paid, but failed to set forth the precise amount. Although the prayer did not contain the total amount of monetary damage to the Ew-ings, it sought “the entirety of the damage caused to them” as a result of Adcock’s and A-l Pools’ alleged breach of the contract, which amount was clearly set forth in the allegations of the petition.

At the default confirmation hearing, James Ewing testified that Adcock had not completed the pool for which he had paid Adcock personally $22,000.00. Additionally, Ewing paid a subcontractor $3,852.04 to release a lien on his property as a result of Adcock’s nonpayment to the subcontractor. The trial court awarded the Ewings these amounts in the default judgment. We do not believe the scope of the judgment was different in kind from the demands made in the petition, which demands were based on a contract between the parties, despite the use of the word “rescission” by the Ewings’ attorney at the confirmation hearing.

Further, in essence Adcock argues that the Ewings’ demands in their petition were different than the relief they obtained, in other words, they did not prove or establish a prima facie case regarding the allegations made in their petition to achieve the relief they were granted. He argues they claimed |12breach of contract and were awarded monetary damages based on rescission of contract. We note the directive by the Supreme Court that the action to annul judgments “applies only to technical defects of procedure or form of the judgment. The failure to establish the prima facie case required by La. C.C.P. art. 1702 is not a vice of form. A failure of proof must be raised in a motion for new trial or by appeal, not by an action for nullity.” National Income, supra at 1271. Nonetheless, even considering the merits of the claim as discussed, we do not believe the trial court erred.

In his final assignment of error, Adcock argues that the trial court erred in not disqualifying the Ewings’ attorney when he appeared as a witness in support of their motion for summary judgment. Specifically, Mr. Benson submitted his own affidavit in support of the Ewings’ motion for summary judgment regarding the issue of the erroneous “drop slip,” which he asserts was simply a clerical error that was quickly noticed and rectified with the clerk’s office. Also attached in support of the motion was the affidavit of the legal assistant who made the mistake.

According to Adcock, Louisiana Rules of Professional Conduct,- Rule 3.7 provides:

(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(I) the testimony relates to an uncontested issue;
113(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

Despite the Ewings’ argument to the contrary, Rule 3.7 can apply to a summary judgment proceeding. We do not read the word “trial” in the rule to be so restrictive as to refer only to that court proceeding which reaches a final determination in a lawsuit. The rule has been properly considered and applied in pretrial proceedings. See Franklin Credit Management Corp. v. Gray, 2007-1433 (La.App. 4th Cir.01/14/09), 2 So.3d 598, writ denied, 2009-0476 (La.04/17/09), 6 So.3d 795.

However, in this case, we do not believe the admission of (and -perhaps reliance on) Mr. Benson’s affidavit in support of the Ewings’ motion to be a violation of Rule 3.7, because it pertained to the “nature of ... legal services,” an exception under subsection (a)(2) of the rule. Adcock raised the issue of whether Mr. Benson had dismissed Adcock from the litigation, which Mr. Benson maintains was a result of a clerical mistake. In performing legal services on the Ewings’ behalf, Mr. Benson (through hisj^legal assistant) made a mistake and checked off the wrong box on the “drop slip” provided by the court to enter a preliminary default. This error was promptly corrected by his office. The clerical error had nothing to do with the merits of the case, but had to do with Mr. Benson’s legal services. It was a simple clerical mistake, and Mr. Benson’s affidavit only served to explain how his office had erred and remedied the problem — i.e., the nature of his legal services. There was no violation of Rule 3.7 here, and this ai'gument is without merit.

Finally, we note that Adcock was personally named a defendant in the original proceeding brought by the Ewings, and he took no action to defend himself in that proceeding. Moreover, Adcock did not appeal the default judgment obtained by the Ewings, at- which point he could have properly raised some of the issues he has raised through his action to annul the judgment, which issues perhaps warranted serious consideration on appeal. As this court noted in Knutsen, supra at 408, “the nullity action is governed by specific procedural articles,” which rules we must adhere to strictly in order to protect the sanctity of final judgments. Here, Adcock failed to prove that the default judgment should have been annulled. The trial court was not in error in its determination.

Conclusion

11sThe judgment of the trial court which granted the motion for summary judgment in favor of James H. Ewing, Jr. and Amy Ewing is affirmed, as is the' judgment which denied the motion for partial summary judgment by Richard W. Adcock. All costs of these proceedings are assessed to Adcock.

AFFIRMED.

      . Whereas subsection (A) to La. C.C.P: art. 893 prohibits the inclusion of a specific monetary amount of damages in the allegations or prayer for relief of any original, amended, or incidental demand, subsection (B) of the same article states that the provisions of subsection (A) are inapplicable to a suit on a conventional obligation, which is at issue in the case at hand. We do not read subsection (B) to mandate inclusion in the prayer of an explicit statement of the monetary damages where a conventional obligation is at issue, especially if stated in the allegations of the demand, only that the plaintiff is not prohibited from including such a request if she so chooses.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Chadward Channell WELCH, Appellant.
    No. 45,950-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Stephen A. Glassell, Shreveport, LA, for Appellant.
    Charles Rex Scott, II, District Attorney, for Appellee.
    Lea Hall, Jr., Suzanne Owen, Assistant District Attorneys.
    Before WILLIAMS, GASKINS and MOORE, JJ.
   MOORE, J.

12Chadward Channell Welch, convicted of aggravated flight from an officer, appeals his adjudication as a third felony offender and his sentence of life at hard labor without benefits. For the reasons expressed, we affirm.

Shortly after 2:00 am on May 21, 2009, Shreveport Police Officer A.J. Kelly saw an older-model Olds 88 Royale make an illegal U-turn on Lakeshore Drive. Suspecting the driver was drunk, Officer Kelly flashed his emergency lights and sounded his siren to stop the Olds, but the driver sped off, leading the officer on' a high-speed chase into the Queensborough neighborhood. In the course of the chase, the driver drove on the wrong side of Darien Street and ran two stop signs and a flashing red light; he eventually crashed the car into a utility pole at the corner of West College Street and Arkansas Avenue. As Officer Kelly pulled alongside the Olds, the driver got out, giving the officer a good look at his face; the driver then started running north on Arkansas Avenue. Officer Kelly chased him on foot but lost him in an alley several blocks away.

¡^Identification officers traced the Olds to Sheba Taylor, who said that her boyfriend, Welch, had been using the car until she took the keys away from him, and shortly after that, the car turned up stolen. Detective Gordon, who had prior dealings with Welch, showed Officer Kelly a photo lineup; Officer Kelly immediately and positively picked Welch as the driver of the Olds. Detective Gordon then obtained a warrant for his arrest for aggravated flight from an officer, La. R.S. 14:108.1 C, and Welch turned himself in at the Caddo Correctional Center on May 26.

The state charged Welch by amended bill of information with one count of aggravated flight from an officer. On the day of trial, he withdrew his plea of not guilty and pled guilty as charged. The only agreement with the state was that Welch would cooperate in providing information about a homicide; the prosecutor stated that in his sole discretion, the state would elect whether to charge him as a habitual offender, based on the value of the information provided. Before accepting the guilty plea, the court conducted a full Boy-kin examination in which Welch also conceded that his habitual offender status depended on his giving useful information to the state.

One month later, the state charged Welch as a third felony offender, citing his 2001 guilty plea to possession of a Schedule I CDS (Ecstasy) and [4his 2008 guilty plea to attempted possession with intent to distribute a Schedule II CDS (cocaine) as predicate felonies. At trial, the state offered certified copies of both the prior bills of information and court minutes; a forensics expert testified that Welch’s fingerprints matched those on the certified bills. Welch complained that the state had reneged on its agreement to forgo a habitual offender bill in exchange for information on the homicide. After a long colloquy with the court, he admitted that the habitual offender bill was solely in the state’s discretion, based on the usefulness of the information provided, and that he had indeed committed aggravated flight from an officer. The court adjudicated him a third felony offender and sentenced him to the mandatory life in prison at hard labor, without benefit of parole, probation or suspension of sentence, under La. R.S. 15:529.1 A(1)(b)(ii).

After retaining new counsel, Welch filed a motion for new trial on the habitual offender bill, alleging deficiencies in both predicate convictions, and a motion to reconsider sentence, urging that a departure from mandatory life was warranted because, inter alia, no one was hurt in the instant offense and the prior felonies were nonviolent. The district court held a full hearing but denied both motions, and this appeal followed.

|fiBy his first assignment of error, Welch urges the court erred in denying his motion for new trial because the prior convictions were invalid predicate felonies. He contends that in the 2008 guilty plea, the court failed to advise him of the maximum sentence for possession of a Schedule I CDS, as required by La. C. Cr. P. art. 556.1, and of the fact that the conviction could be used to enhance a subsequent sentence. He also contends that the state introduced only the court minutes of his 2001 guilty plea; although these minutes recited compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), without a transcript he was denied the right to challenge that conviction for irregularities not disclosed in the minutes.

Welch correctly cites the text of La. C. Cr. P. art. 556.1 A(l), which requires a court, before accepting a guilty plea in a felony case, to address the defendant in open court and advise him of “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” However, the supreme court has held that advice “with respect to the defendant’s sentencing exposure * * * has never formed a part of this Court’s core Boykin requirements for the entry of a presumptively valid guilty plea in any case.” State v. Anderson, 98-2977 (La.3/19/99), 732 So.2d 517; State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Similarly, the supreme court has held that trial courts need not advise defendants that a | ^conviction may be used to enhance a subsequent sentence. State v. Muse, 367 So.2d 789 (La.1979); State v. Montalban, 2000-2739 (La.2/26/02), 810 So.2d 1106. Neither of the deficiencies cited by Welch will invalidate his 2008 guilty plea.

The supreme court has also held that the state need not introduce a “perfect” transcript of a guilty plea to prove a prior conviction. The state may offer “a guilty plea form, a minute entry, an ‘imperfect’ transcript, or any combination thereof,” and this offering shifts the burden of proof to the defendant to show some irregularity. State v. Shelton, 621 So.2d 769 (1993); State v. Carlos, 98-1366 (La.7/7/99), 738 So.2d 556. The minutes of Welch’s 2001 guilty plea show that he was represented by counsel and advised of his Boykin rights; the burden shifted, but Welch offered nothing but speculation to counter the state’s showing. On this record, the district court did not err in finding sufficient proof of the 2001 conviction. This assignment of error lacks-merit.

By his second and third assignments of error, Welch urges the court erred in denying his motion to reconsider sentence and depart from the mandatory life at hard labor prescribed by R.S. 15:529.1 A(1)(b)(ii), and in imposing an excessive sentence. He argues that no one was- hurt in his aggravated flight from Officer Kelly; neither of his prior offenses was a |7crime of violence or a sex offense; and one of his prior felonies, simple possession of Ecstasy, carried a maximum of only 10 years in prison, the minimum to qualify as a predicate offense under R.S. 15:529.1 A(1)(b)(ii). He strongly urges that it is anomalous for a person convicted of aggravated flight from an officer, an offense bearing a maximum sentence of only two years and in which nobody was hurt, to be sent to Angola for life ivithout benefits. He concludes that the sum of these facts proves that he is “exceptional,” a “victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672; State v. Lindsey, 99-3256 (La.10/17/00), 770 So.2d 339.

The state responds that Welch’s conduct did indeed pose a great and continued danger to the public, as illustrated by the fact that the chase ended only when he crashed his girlfriend’s car into a pole.

At the time of this offense, R.S. 15:529.1 A(1)(b)(ii) provided that if the third felony and the two prior felonies “are felonies defined as a crime of violence under R.S. 14:2(B), * * * or as a violation of the Uniform Controlled Substances Law punishable by imprisonment for ten years or more,” then the penalty is imprisonment for life without benefit of parole, 1 ^probation or suspension of sentence. Aggravated flight from an officer is a crime of violence, La. R.S. 14:2 B(39), and both of the prior offenses, possession of Ecstasy, R.S. 40:966 E, and attempted possession with intent to distribute cocaine, R.S. 40:979 and 967 A(1), were violations of the controlled dangerous substances lawp the court properly applied the presumptive life sentence of § 529.1 A(1)(b)(ii).

A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless imposition of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is deemed grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals. State v. Guzman, supra. The habitual offender law has been found constitutional in its entirety, and the minimum sentences it imposes are presumptively constitutional. State v. Johnson, supra. The sentencing court may depart from the prescribed minimum sentence, but this should occur rarely and only when the defendant “clearly and convincingly show[s] that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign | sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” Id., at p. 8, 709 So.2d at 676. Critically, the sentencing court may not rely solely on the nonviolent nature of the instant or predicate crimes to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason, for declaring such a sentence excessive. Id., at pp. 7-8, 709 So.2d at 676; State v. Winslow, 45,414 (La.App. 2 Cir. 12/15/10), 55 So.3d 910.

On close review, we do not find that the district court abused its discretion in declining to depart from the mandatory sentence of R.S. 15:529.1 A(1)(b)(ii). We recognize that mandatory life without benefits for a third felony offense is an enormous enhancement from the two-year maximum for the offense of conviction, and we commend counsel for articulating the issue so well. However, in addition to the two prior convictions for drug offenses, Welch’s PSI shows numerous other offenses that were dismissed with the guilty pleas, misdemeanor traffic and drug arrests, and a poor probation and parole record; in fact, he had been on parole only two months when the instant offense occurred. He was also close to a homicide investigation, as evidenced by his deal with the state. The impassive record shows a 30-year-old who has, regrettably, spent most of his | inadult life either participating in or being suspiciously close to crime, except for two stretches in the Department of Public Safety and Corrections. The record does not clearly and convincingly show that he is “exceptional” as defined in State v. Johnson, supra; in light of his culpability and the gravity of the offense, the court was not required to depart from the legislative mandate. These assignments of error lack merit.

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For these reasons, Welch’s conviction, adjudication as a third felony offender and sentence are affirmed.

AFFIRMED.

      . The original bill of information, filed two days after his surrender at the CCC, charged him with conspiracy to possess a Schedule II CDS (cocaine).

      . This subsection was redesignated as R.S. 15:529.1 A(3)(b) by 2010 La. Acts No. 973, § 2, effective July 6, 2010.

      . These are referred to the in body of the brief as the third and fourth assignments.


author: PEATROSS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Matthew JAMES, Jr., Defendant-Appellant. Matthew J. James, Jr., Plaintiff-Appellant v. Latasha Y. Davis, Defendant-Appellee.
    Nos. 45,955-JAC, 45,956-JAC, 45,957-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    George W. Britton, III, for Appellant, Matthew J. James, Jr.
    Jerry L. Jones, District Attorney, Brenda M. Howell, Frederick D. Jones, Assistant District Attorney, for Appellee, State of Louisiana.
    Sheri Stapleton Allen, for Appellees, Latasha Y. Davis & Mariyon Wade.
    Before STEWART, PEATROSS & MOORE, JJ.
   PEATROSS, J.

12Defendant, Matthew J. James, Jr., appeals from a trial court judgment finding him to be voluntarily underemployed. The trial judge determined that Defendant, who was employed as a school bus driver, could generate additional income as a barber due to his training and abilities in that field of employment. As a result of this finding, the trial judge imputed additional income to Defendant and ordered an increase of child support owed for the support of two of his five minor children. For the reasons stated herein, we affirm.

FACTS

Defendant is the father of five minor children by four different mothers. Defendant is under a child support order for two of his children and |sis not under a child support order for his other three children. Defendant’s current established monthly income is $1,750 per month, which he earns as a school bus driver for the Ouachita Parish School Board. Defendant has also been employed as a barber “on and off’ for the past nine years.

Defendant’s child support proceedings for his daughter, Ayala Wade, began in March 1998. The most recent support order in that matter was granted by the hearing officer in October 2007, wherein Defendant was ordered to pay $200 plus a 5% administration fee based on the mother’s monthly minimum wage earnings and Defendant’s monthly earnings of $1,331 as a school bus driver.

Defendant’s child support proceedings for his son, Matthew Jamal James, began in November 1999. The last support order in that matter was granted by the hearing officer on March 7, 2008, wherein Defendant was ordered to pay $150 per month plus a 5% administration fee based on his monthly income of $1,391 as a school bus driver, taking into account the mother’s last known earnings of $1,270 per month.

Both child support matters were consolidated before a hearing officer in November 2009, wherein Defendant’s support obligation for Ayala Wade was increased from $200 to $415 and the support obligation for Matthew Jamal James was increased from $150 to $350. The increase was based on ^Defendant’s earnings as a school bus driver of $1,755 per month, in addition to his earnings and/or earning potential as a part-time barber.

Defendant filed for rehearing and the matter was heard in the trial court in March 2010. As previously stated, the trial judge found Defendant to be voluntarily underemployed and imputed an additional income of $600 per month, representing Defendant’s earning potential as a part-time barber. The trial judge based his findings on Defendant’s testimony that he completed barber school in the year 2000 and received a barber’s license. Defendant testified that he had let his bai’ber license expire several times, but had later renewed it several times. Defendant also testified that he had been employed as a barber even during times when his license was not activated. Defendant further testified that his two shifts driving the school bus lasted every day from 6:20 a.m. through 8:00 a.m. and from 2:00 p.m. through 4:30 p.m., which left him time between and after his shifts to do other work.

Defendant now appeals this ruling, citing as his sole assignment of error that the trial judge wrongfully concluded that Defendant was voluntarily underemployed as defined by La. R.S. 9:315.11.

DISCUSSION

Defendant contends that he has never hidden his income as a barber and, further, that he is not “cut out to be a barber.” According to Defendant, Lwhen he has attempted to work as a barber in the past, he could not build a clientele and did not make enough money to pay his child support obligations. Defendant further contends that his job as a school bus driver requires him to be working during the hours that are “primetime for cutting hair on the weekdays.”

Citing La. R.S. 9:315.11, the State argues that Defendant’s child support obligation should be based on his “earning potential.” La. R.S. 9:315.11 states that, if a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of his or her income earning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five years. In determining the party’s income earning potential, the court may consider the most recently published Louisiana Occupational Employment Wage Survey. La. R.S. 9:315.11. Income includes potential income, if a party is voluntarily unemployed or underemployed. La. R.S. 9:315 C(5)(b). A party is not deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed or if the unemployment or underemployment results through no fault or neglect of the party. La. R.S. 9:315 C(5)(b).

| ^Voluntary underemployment is a question of good faith of the obligor parent. Fuqua v. Fuqua, 45,555 (La.App.2d Cir.9/22/10), 47 So.3d 1121; Durfee v. Durfee, 44,281 (La.App.2d Cir.5/13/09), 12 So.3d 984; Strange v. Strange, 42,318 (La.App.2d Cir.6/20/07), 960 So.2d 1223. Whether the obligor is in good faith in reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the trial court’s wide discretion. Fuqua, supra; Durfee, supra; Strange, supra. The trial court also has wide discretion in resolving factual issues. Id.

The State contends that Defendant is voluntarily underemployed because, in addition to working as a school bus driver, he has the training and ability to work as a part-time barber and receive more income. The State further argues that Defendant has several free hours a day, weekends, holidays and summer months during which he could earn additional income working as a barber because he is not driving a school bus during those times. We agree.

Defendant has been formally trained through barber school, has years of past experience as a barber and can easily renew his license to work as a barber, as he has done several times in the past. While it may be true that Defendant does not derive a sufficient income to support his minor children ^working solely as a barber, he can use the additional income he earns as a barber to supplement the salary he earns working as a school bus driver. Furthermore, we agree with the State that Defendant’s schedule working as a school bus driver leaves him plenty of hours during the days, weekends, holidays and summers to pursue other means of earning additional income. Additionally, as the State points out,’the trial judge only imputed $600 in additional income per month to Defendant, which is less than half of a barber’s annual salary as stated in the Occupational Wages Handbook.

Accordingly, we find no error in the trial judge’s ruling that Defendant is voluntarily underemployed and, further, that an imputation of $600 of additional income is warranted, thereby increasing his child support obligation for Ayala Wade from $200 to $415 and for Matthew Jamal James from $150 to $350.

CONCLUSION

For the reasons stated above, we affirm the ruling of the trial court concluding that Matthew J. James, Jr. is voluntarily underemployed as defined by La. R.S. 9:315.11. Costs of this appeal are assessed to Matthew J. James, Jr.

AFFIRMED.

      . According to the Occupational Wages Handbook, the average annual salary for a barber is $17,363.


text:
    STATE of Louisiana, Appellee v. Eric Dejuan BAULKMAN, Appellant.
    No. 45,969-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      J. Ransdell Keene, Shreveport, LA, for Appellant.
    Charles R. Scott, II, District Attorney, Tommy J. Johnson, Jason T. Brown, Assistant District Attorneys, for Appellee.
    Before GASKINS, DREW and LOLLEY, JJ.
   LOLLEY, J.

|2This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Eric Dejuan Baulkman (“Baulkman”), was convicted of possession with intent to distribute a Schedule I controlled dangerous substance, namely marijuana, a violation of La. R.S. 40:966(A)(1). He was adjudicated a second felony offender and sentenced to 25 years at hard labor without probation or suspension of sentence. This appeal ensued. For the following reasons, we affirm Baulkman’s conviction and sentence.

Facts

On July 21, 2008, Detective Robert Gordon of the Shreveport Police Department (“Detective Gordon”) received a tip from a confidential informant that Baulkman, a suspect in an aggravated battery case, was spotted at the 1600 block of Knox Street in Shreveport. Detective Gordon relayed this information to officers patrolling that area, specifically Officer Willie Mott (“Officer Mott”) and Officer Ronald Moore (“Officer Moore”), |sboth of the Shreveport Police Department. When the officers arrived at the scene they observed three men standing between two parked vehicles-a green Lincoln Town Car and a brown Chevrolet Caprice. Officer Moore recognized Baulkman as one of the three individuals, as he was familiar with Baulk-man from prior police work. The three men ran from the scene once the officers began to exit their vehicles. A chase ensued, but no one was apprehended. The officers returned to the parked vehicles. Through the windows of the Chevrolet Caprice the officers observed what appeared to be marijuana in clear plastic bags on the floor of the backseat, as well as a scale on the floor near the front passenger seat. The cars were impounded and an investigation followed.

Baulkman was arrested and charged. He pleaded not guilty and waived his right to a jury trial. A bench trial was held and Baulkman was found guilty of possession with intent to distribute a Schedule I controlled dangerous substance, marijuana, a violation of La. R.S. 40:966(A)(1). He was charged as a second felony offender and pleaded guilty to that classification. He was then sentenced to 25 years at hard labor without the benefit of probation or suspension of sentence. This appeal followed.

Law and Discussion

j4In this appeal, Baulkman asserts three assignments of error. First, he argues the evidence was insufficient to support his conviction. Second, he argues the evidence is circumstantial and does not exclude every other reasonable hypothesis of innocence. Third, he argues the state failed to prove “control,” and, therefore, failed to prove a required element of the offense. Because these assignments of error relate to the sufficiency of the evidence, we will discuss them together. The Jackson standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the factfinder. State v. Pigford, 2005-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 2009-0310 (La.11/06/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 1994-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.02/25/09), 3 So.3d 685.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by ^viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Speed, 43,786 (La.App.2d Cir.01/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/06/09), 21 So.3d 299. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App.2d Cir.04/09/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

To be guilty of possession of a controlled dangerous substance, one need not actually possess the contraband; constructive possession is sufficient to convict. Constructive possession means having an object subject to one’s dominion and control, with knowledge of its presence, even though it is not in one’s physical possession. State v. White, 37,261 (La.App.2d Cir.06/25/03), 850 So.2d 987. A determination of whether there is “possession” sufficient to convict depends on the peculiar facts of each case. | ^Factors to be considered in determining whether a defendant exercised dominion and control sufficient to constitute constructive possession include, but are not limited to, his knowledge that drugs were in that area, his access to the area where drugs were found, and his physical proximity to the drugs. State v. Toups, 2001-1875 (La.10/15/02), 833 So.2d 910. A defendant may have constructive possession if he willfully and knowingly shares the right to control the contraband with another. State v. Robbins, 43,129 (La.App.2d Cir.03/19/08), 979 So.2d 630; State v. Taylor, 39,651 (La.App.2d Cir.04/06/05), 900 So.2d 212.

Guilty knowledge is an essential element of a possession charge, and such knowledge may be inferred from the circumstances. Toups, supra; Robbins, supra. Flight and attempt to avoid apprehension are circumstances from which a trier of fact may infer a guilty conscience. State v. Durden, 36,842 (La.App.2d Cir.04/09/03), 842 So.2d 1244, writ denied, 2003-1350 (La.11/26/03, 860 So.2d 1131). 860 So.2d 1131.

Fingerprint evidence has been upheld as sufficient to sustain a conviction. State v. Lee, 39,969 (La.App.2d Cir.08/17/05), 909 So.2d 672, writ denied, 2006-0247 (La.09/01/06), 936 So.2d 195.

Possession with intent to distribute is defined in La. R.S. 40:966(A)(1), which provides:

|7A. Manufacture; distribution. Except as authorized by this Part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance or controlled substance analogue classified in Schedule I.

After viewing the totality of the evidence, a rational trier of fact could have concluded beyond a reasonable doubt that the evidence presented by the state was sufficient to find the defendant guilty of possession with intent to distribute; thus Baulkman’s arguments to the contrary are without merit. At trial, evidence was presented that showed that Baulkman was identified by both a confidential informant and Off. Moore, who was familiar with Baulkman, as standing at the vehicle where the marijuana was found. Officers Mott and Moore testified that Baulkman ran when they arrived and that they observed what appeared to be packaged marijuana and scales inside the Chevrolet Caprice. Evidence at trial also showed that the vehicles were impounded and processed by Off. Skylar Van Zant of the Shreveport Police Department. Approximately one pound of marijuana was recovered from the vehicle, some of which was packaged in a manner consistent with the sale of marijuana. An electronic scale was also in the vehicle. The registered owner of the Chevrolet Caprice was found to be Baulkman’s sister, Joketa Baulkman, who stated that Baulkman had access to the vehicle. Of the 19 | ¿fingerprints lifted from the vehicle, 18 were Baulkman’s, including his fingerprints on the actual bag in which the marijuana was found. It was also discovered that approximately two to three hours after Baulkman fled from the Chevrolet Caprice, Joketa Baulkman reported the vehicle stolen, insinuating Baulkman’s guilty knowledge.

Another noteworthy piece of evidence presented at trial regarding guilty knowledge is the custom paint job of the vehicle where the drugs were found. The Chevrolet Caprice was airbrushed in a Nabisco Company theme with teddy bears labeled as “Teddy Grahams” painted on the vehicle as well as the statement “five grams per serving.” Additionally, inside the vehicle, the words “flip-a-gram” were stitched into the dashboard and door panels. Detective Gordon testified that this paint job was advertising drug sales. He further explained that five grams of marijuana, or a. “dime bag,” is sold on the street for ten dollars..- He testified that “flip-a-gram” refers to turning drugs into money in street terms.

Therefore, Baulkman’s having been identified at the vehicle as well as his proximity to the Chevrolet Caprice where the drugs were located, his fleeing from the scene once police officers arrived, his access to the vehicle, his fingerprints on the vehicle and the marijuana packaging, the amount of marijuana found along with the scale and the manner in which the drugs Iswere packaged, the reporting of the vehicle as stolen, and the custom paint job on the vehicle advertising drug sales led the trier of fact to conclude Baulkman is guilty beyond a reasonable doubt. We find this conclusion to be reasonable and, therefore, Baulkman’s assertions on appealare without merit.

Conclusion

For the foregoing reasons, Eric Dejuán Baulkman’s conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, J.

text:
    STATE of Louisiana, Appellee v. Robert R. WYATT, Appellant.
    No. 45,972-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.
    G. Paul Marx, Lafayette, LA, for Appellant. -
    Charles R. Scott, II, District Attorney, Catherine M. Estopinal, Shreveport, LA, R. Bennett Langford, III, Kodie K. Smith, Assistant District Attorneys, for Appellee.

      Before WILLIAMS, PEATROSS and LOLLEY, JJ.
   WILLIAMS, J.

| ¿The defendant, Robert R. Wyatt, was charged by bill of information with aggravated battery, a violation of LSA-R.S. 14:34. Following a jury trial, he was convicted as charged. He was adjudicated a second felony habitual offender and was sentenced to serve 18 years in prison, at hard labor, without benefit of probation, parole or suspension of sentence. For the following reasons, we affirm the defendant’s conviction. We amend the defendant’s sentence to delete the portion which denies the benefit of parole; the sentence is affirmed as amended.

FACTS

On September 3, 2008, Corporal John Hay, a deputy with the Caddo Parish Sheriffs Office, responded to an emergency call at a residence in Shreveport, Louisiana. Upon arriving at the location, Cpl. Hay observed |sSusan Meshell sitting on the back of a fire truck, holding a bloody towel to her head. Ms. Meshell informed Cpl. Hay that the defendant, her ex-husband, had entered her home without her permission. During an argument, the defendant pushed Ms. Meshell, causing her to fall over an ice chest/cooler. The defendant then armed himself with a large souvenir glass mug and hit Ms. Meshell across the head. The resulting injury to Ms. Meshell’s head required multiple stitches.

Later that evening, the defendant was apprehended at a nearby convenience store. He was transported back to Ms. Meshell’s residence, where he was placed under arrest for aggravated battery. The defendant was later released on bond with an order to stay away from Ms. Meshell. Subsequently, the state filed a bill of information, charging the defendant with aggravated battery, a violation of LSA-R.S. 14:34. On December 15, 2008, despite the stay-away order, the defendant went to Ms. Meshell’s home, jumped over the fence, and attempted to break her kitchen window. Ms. Meshell called the police and the defendant was arrested, resulting in the revocation of his bond.

Following a trial held on July 21, 2009, the jury returned a unanimous verdict of guilty on the charge of aggravated battery. The trial court denied the defendant’s motion for new trial and his motion for post-verdict | Judgment of acquittal and/or modification of verdict. On March 22, 2010, a multiple offender hearing was held, and the defendant was adjudicated a second felony offender. Subsequently, he was sentenced to 18 years in prison, at hard labor, without the benefit of probation, parole or suspension of sentence.

The defendant appeals.

DISCUSSION

In his sole assignment of error, the defendant contends the evidence was insufficient to convict him of aggravated battery. He argues that the victim was the only eyewitness to the incident, and her testimony was “full of internal contradictions.” The defendant also argues that Ms. Meshell “intentionally locked police out of the crime scene and refused entry;” therefore, there was no physical evidence of the glass souvenir mug to corroborate that a dangerous weapon was involved in the incident.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.1/14/09), 1 So.3d 833.

The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Eason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La.12/14/07), 970 So.2d 529. See also, State v. Bowie, 43,374 (La.App.2d Cir.9/24/08), 997 So.2d 36.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir.1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La.11/9/06), 941 So.2d 35. Such testimony alone is sufficient even where the state does not introduce medical, scientific or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).

Battery is the intentional use of force or violence upon the person of another. LSA-R.S. 14:33. Aggravated battery is a battery committed with a dangerous weapon. LSA-R.S. 14:34. “Dangerous weapon” includes any gas, liquid, or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm. LSA-R.S. 14:2(3). Thus, in order to convict a defendant of aggravated battery, the state must prove (1) that the defendant intentionally used force or violence upon the victim, (2) the force or violence was inflicted with a dangerous weapon, and (3) the dangerous weapon was an instrumentality used in a manner likely or calculated to cause death or great bodily harm. State v. Ealy, 44,252 (La.App.2d Cir.5/13/09), 12 So.3d 1052, writ denied, 2009-1393 (La.2/5/10), 27 So.3d 298.

|7In the present case, the state called Cpl. Hay as its first witness. Cpl. Hay testified that on the night of the incident, he observed Ms. Meshell sitting on the back of the fire truck holding a towel to her head. He also testified that he saw blood running down the side of her face and “a large softball-like knot on the top of her head.” Ms. Meshell informed him that she had been attacked by the defendant. Cpl. Hay stated that he was unable to investigate the scene of the crime because Ms. Meshell was leaving in the ambulance and did not want him to enter her home while she was away. He testified that after he left Ms. Meshell’s residence, he came into contact with the defendant at a nearby store, and the defendant did not appear to have any injuries. Cpl. Hay identified the defendant in open court.

On cross-examination, Cpl. Hay testified that ordinarily, he would have looked for a weapon in the home. However, he stated that he was unable to enter the home to search for a weapon without a warrant because prior to leaving in the ambulance, Ms. Meshell stated that she did not want him in her home while she was away. Cpl. Hay also testified that he noticed that Ms. Meshell was either “drunk” or had been drinking alcohol.

Ms. Meshell testified that the defendant entered her home without her permission. She stated that she had left her home to search for her two dogs, and when she went back inside, she saw the defendant inside her home. Ms. |sMesheIl testified that the defendant had no reason to be inside her home because: he did not live there; she had not invited him there; he did not pay any of the bills there; and he did not have any belongings there. She also testified that she was afraid of the defendant because he had “hurt” her in the past. Nevertheless, she stated that she became angry and began to argue with the defendant because she believed that he “had something to do with” her dogs being missing. Ms.. Meshell testified that during the argument, the defendant “lunged towards me, pushed me down on[to] a cooler, and then picked up a glass souvenir mug and broke it over my head.” Ms. Meshell stated that the defendant “broke my skull open.” She estimated that the thickness of the mug was approximately one-half of an inch. She further stated that after she was able to convince the defendant to leave the house, she called 9-1-1, locked her house and gate, and she waited outside for emergency services to arrive.

On cross-examination, Ms. Meshell admitted that she had been drinking alcohol approximately two hours before the incident and that she had a history of substance abuse. When questioned as to why she did not give Cpl. Hay the keys to enter her home, Ms. Meshell replied, “[TJhey didn’t ask me for my keys. I would have gladly given it to the sheriff if he’d asked for it.” Ms. Meshell also testified that she told Cpl. Hay that the | defendant had some personal belongings on a swing outside her home; however, she maintained that the defendant did not live at her home at the time of the incident, and that he had never lived with her at that address. Ms. Meshell also testified, for the first time on cross-examination, that the defendant was holding a knife in his hand when he pushed her down and hit her with the mug.

Martha Bolgiano, the defendant’s sister, was the only witness to testify for the defense. Ms. Bolgiano testified that the defendant and Ms. Meshell “fought a lot” and she described the relationship between the defendant and Ms. Meshell as a “love/ hate relationship.” Ms. Bolgiano also testified that the defendant was living with Ms. Meshell at the time of the incident, and the only time he did not live there was when he was working offshore. She further testified that she had witnessed bruises that the defendant had received from Ms. Meshell. However, she admitted that the defendant had never reported any of the alleged violence that Ms. Meshell had inflicted upon him. On cross-examination, Ms. Bolgiano admitted that the defendant had been arrested in the past for a violent crime against Ms. Meshell. She also admitted that, to her knowledge, Ms. Meshell had never been arrested for any crime of violence against the defendant.

We have reviewed this record in its entirety. We find that the |inevidence was sufficient to support the jury’s verdict. Cpl. Hay testified that he observed Ms. Meshell shortly after the incident. She was holding a bloody towel to her head; blood was running down her face; there was “a large softball-like knot on her head;” and she reported to him that the defendant had attacked her. Although Ms. Meshell’s testimony was somewhat inconsistent with regard to whether the defendant lived at the residence, her testimony remained constant that the defendant armed himself with a dangerous weapon (a glass mug) and intentionally used force or violence upon her in a manner likely to cause death or great bodily harm. Ms. Meshell suffered a serious wound to her head which required multiple stitches. Ms. Meshell unequivocally identified the defendant as her attacker. Moreover, Ms. Meshell, as well as the defendant’s sister, testified that the defendant had a history of violent behavior inflicted upon Ms. Me-shell.

The fact finder in this case, the jury, clearly accepted Ms. Meshell’s testimony regarding the incident. We find that the state’s evidence was sufficient, even in the absence of physical evidence, to support the jury’s conclusion that the defendant committed aggravated battery against Ms. Meshell. See, State v. Robinson, supra; State v. Ponsett, supra; State v. Johnson, supra.

This assignment is without merit.

J^ERROR PATENT

Pursuant to LSA-C.Cr.P. art. 920, we have examined the record and we note the presence of one error patent. The defendant was adjudicated a second felony habitual offender and was sentenced to serve 18 years in prison at hard labor without the benefit of probation, parole or suspension of sentence. LSA-R.S. 15:529.1(G) provides, “Any sentence imposed under the provisions of this Section shall be at hard labor without benefit of probation or suspension of sentence.” The statute does not require that the sentence be served without benefit of parole. See, State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519. Accordingly, that portion of the sentence denying parole eligibility is erroneous. Since its deletion does not involve the exercise of judicial discretion, we hereby amend the sentence to delete that portion denying the benefit of parole.

CONCLUSION

For the reasons set forth herein, we affirm the defendant’s conviction for aggravated battery and his sentence of 18 years in prison without benefit of probation or suspension of sentence. We amend the sentence to delete that portion which denied the benefit of parole.

CONVICTION AFFIRMED; SENTENCE AMENDED; SENTENCE AFFIRMED AS AMENDED.


author: CARAWAY, J.

text:
    The CADLE COMPANY, Plaintiff v. Frederick V. HENSON, Defendant.
    No. 45,978-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 26, 2011.

      Sam L. Jenkins, Jr., Shreveport, LA, for Appellant, T & M Fence Company.
    Newman, Mathis, Brady, & Spedale, Metairie, LA by Mark C. Landry, for The Cadle Company.
    Ree J. Casey-Jones, for Frederick V. Henson.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   CARAWAY, J.

| ¿The trial court dismissed appellant’s action to annul a judgment after granting the appellee’s exception of no cause of action. Finding that the appellant’s petition stated a cause of action that the judgment was obtained by “ill practice” as provided in La. C.C.P. art.2004, we reverse the trial court’s ruling and remand.

Facts

On December 16, 2009, T & M Fence Company, Inc. (“T & M”), filed a Petition to Annul Judgment, naming as defendant The Cadle Company (hereinafter “Cadle”). The initial sentence of the petition lists Jeremiah Thomas as president of Cadle and the party presenting the claim. Nevertheless, the first numbered paragraph, like the suit caption, identifies T & M as the petitioner. The petition then makes the following allegations:

3.
On April 23, 2009 Cadle Company obtained a judgment Pro Confesso against the garnishee, T & M Company, Inc. under docket number 519,325 of this Honorable Court.
JLsf
The Judgment Debtor Frederick V. Henson had filed for protection under Chapter 7 of the U.S. Bankruptcy Code on March 3, 2009 in the Western District of Louisiana Petition Number 09-10652.
5.
Service of the Rule and Citations against the Garnishee were served on T & M Company, Inc. through the judgment debtor ... its registered agent.
6.
Petitioner does not have any property of the debtor.
11.
Petitioner further shows that he at no time received actual notice of the pen-dency of the above action nor was he at any time legally cited therein, and that, therefore, this honorable court was without jurisdiction ratione personae to render judgment herein.

This petition was filed not as a separate nullity action, but lodged in the same suit record as Cadle’s action to make executory a Texas judgment against Henson. In the prior suit, numbered 519,325, Cadle instituted garnishment proceedings which ultimately led to a judgment pro confesso rendered on April 13, 2009, in favor of Cadle and against garnishee, T & M for the principal sum of $73,193, together with interest thereon at a rate of ten percent (10%) per annum (hereinafter the “Pro Confesso Judgment”).

On January 8, 2010, Cadle filed an exception of no cause of action to T & M’s claim for nullity. It asserted proper service was made on T & M’s ^registered agent, Henson, in the garnishment action and argued that there was no violation of the federal bankruptcy stay under 11 U.S.C. § 362.

At a very brief hearing on the exception, counsel for T & M made the following argument relative to its annulment petition:

[T]he agent for service of process in this case was Frederick Henson and he was also the debtor so what happened was the debtor and the agent for service of process became merged and T.M. Fence Company never received actual — well, the President of T.M. Fence Company never knew about the proceedings even though under the law T.M. Fence Company was served by the agent for service of process. That’s the basis of my petition to annul the judgment.

The district judge who previously rendered the judgment pro confesso sustained Cadle’s exception of no cause of action. In the written judgment, rendered March 17, 2010, the trial court offered the following reasons, which are contained in a footnote:

Federal law does not stay every action to which a bankrupt entity is a party; it only stays actions against the debtor or against property of the bankruptcy estate. In this matter the rule for judgment pro confesso is not an action against the debtor; rather it is against T & M Fence Company, Inc. Its lack of response led to further action. The claim that the automatic stay .would prevent Cadle from pursuing T & M states no cause of action. Finally, the rule was properly served on the agent and notice was thereafter properly provided to the agent. The exceptions of no cause of action have merit.

From this judgment, T & M appeals.

Applicable Legal Principles

|SA peremptory exception of no cause of action questions whether the law extends a remedy to anyone under the factual allegations of the petition. Birdsong v. Hirsch Memorial Coliseum, 42,316 (La.App.2d Cir.8/22/07), 963 So.2d 1095. The exception is triable on the face of the petition and the facts pled are to be accepted as true. Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207. In reviewing a trial court’s ruling sustaining an exception of no cause of action, this court reviews the case de novo because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. Cleco Corp. v. Johnson, 01-0175 (La.9/18/01), 795 So.2d 302. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which entitle him to relief. Fink v. Bryant, 01-0987 (La.11/28/01), 801 So.2d 346. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Companies, Inc. v. Durbin, supra; Jackson v. State ex rel. Dept. of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803.

A final judgment may be annulled for either a vice of substance or form. La. C.C.P. art.2001. The purpose of the action for nullity is to prevent ^injustice which cannot be corrected through new trial and appeals. Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219 (La.1982). Judgments can be attacked at any time on grounds that they are absolutely null under the exclusive provisions of La. C.C.P. art.2002 (vices of form that sound of due process violations), or relatively null as provided by La. C.C.P. art.2004 (vices of substance that sound in fraud or ill practice). Knox v. West Baton Rouge Credit, Inc., 08-1818 (La.App. 1st Cir.3/27/09), 9 So.3d 1020. A judgment may be annulled prior to or pending an appeal therefrom, or after the delays for appealing have elapsed. La. C.C.P. art.2005.

Article 2004 of the Code of Civil Procedure allows a judgment to be amended when obtained by “fraud or ill practice.” Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been rendered through fraud or ill practices: (1) whether circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) whether the enforcement of the judgment would be unconscionable or inequitable. Johnson v. Jones-Journet, 320 So.2d 533 (La.1975); Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. This article is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or 17procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983); Power Marketing Direct, Inc. v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662; Belle Pass Terminal, Inc. v. Jolin, Inc., 01-0149 (La.10/16/01), 800 So.2d 762; Campbell v. Select Car Co., 38,443 (La.App.2d Cir. 5/12/04), 874 So.2d 391, writ denied, 04-1747 (La.10/15/04), 883 So.2d 1057.

The Louisiana Supreme Court in Wright v. Louisiana Power & Light, supra, examined the evolution and meaning of the phrase “deprivation of legal rights” in the nullity context:

The court in Kem Search defined ‘deprivation of legal rights’ as ‘[cjonduct which prevents an opposing party from having an opportunity to appear or to assert a defense.’ Id. The definition was further expanded in Belle Pass, which held that ‘a right to a fair and impartial trial is a legal right entitled to all participants in a legal proceeding.’ 800 So.2d at 767.

Kem Search, supra, Power Marketing, supra, and Russell v. Illinois Central Gulf R.R., 96-2649 (La.1/10/97), 686 So.2d 817, all involved improper notice in the default setting.

La. C.C.P. art.2002, provides, in pertinent part, as follows:

A. A final judgment shall be annulled if it is rendered:
|s(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of this suit.

As a general rule, any action taken by a court without proper subject matter jurisdiction is an absolute nullity. Ardoin v. Stine Lumber Co., 03-1547 (La.App. 3d Cir.9/29/04), 885 So.2d 43. When the basis for the nullity action is the court’s lack of jurisdiction over the subject matter, it may be raised at any time and by any party whose interests are adversely affected. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La.App. 1st Cir.9/24/99), 754 So.2d 1057.

11 U.S.C. § 362(a) provides in relevant part:

Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of—
(2) the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.

The automatic stay directly prohibits the “continuation” of any judicial action against the debtor or any act to collect any debt which arose prior to |9the bankruptcy. Elder v. City of Thomasville (In re Elder), 12 B.R. 491 (Bankr.M.D.Ga.1981). Clearly, a garnishment proceeding is a judicial action against the debtor and is stayed by 11 U.S.C. § 362. In re Mims, 209 B.R. 746 (Bankr.M.D.Fla.1997). However, a garnishment action is unique insofar as it requires affirmative action to comply with the requirements of the automatic stay. The creditor and its agents, including its attorney, have an affirmative duty to stop the garnishment proceeding. Id.

In the case of In re Phoenix Associates Land Syndicate, Inc., 2010 WL 3945538 (Bankr.E.D.La.2010), the Louisiana Eastern District Bankruptcy Court vacated a Louisiana judgment pro confesso where the debtor filed for bankruptcy before the garnishee responded to garnishment interrogatories. The court held that in order for a creditor to continue to pursue a garnishment proceeding after bankruptcy of the judgment debtor, the garnishee must become “independently liable” before the bankruptcy is filed. Id.

This court had occasion to review the process for a judgment pro confesso in Economy Fire & Cas. Co. v. Swaney, 33,-950 (La.App.2d Cir.10/4/00), 768 So.2d 822, writ denied, 00-3045 (La.1/5/01), 778 So.2d 601. In that case, the employer, Falcon Crane and Equipment Company, Inc., failed to respond to garnishment interrogatories within the fifteen day |instatutory mandate. Falcon, who subsequently submitted answers admitting the debtor’s employment and attaching copies of paychecks and pay stubs, appeared at the hearing for the judgment pro confesso. After hearing testimony, the trial court ruled that “Falcon has failed to prove the extent of its liability” and “has failed to rebut plaintiffs prima facie case.” Falcon was then held personally liable for the entirety of the debt. This court reversed the decision, finding that the personal judgment pro confesso, awarded under 2413(A), was inappropriate, reasoning:

Upon the adoption of the Code of Civil Procedure and the enactment of Article 2413, the seizing creditor’s right to obtain an ex parte judgment pro confesso against the non-responsive garnishee ended. Comment (a), La. C.C.P. art. 2413.
[T]he code requires a contradictory hearing with notice to the non-responsive garnishee to appear. La. C.C.P. art. 2594. If, as a result of the garnishee’s prior default, judgment is already confessed and conclusive with nothing left to be contradictorily tried, the garnishee’s appearance at the hearing and the filing of his answers before judgment would be useless acts. Instead, similar to a defendant’s answer filed at the confirmation hearing for a default judgment, the garnishee’s answer and appearance on the date of the contradictory hearing with some supporting proof of his answers should prevent a personal judgment pro confesso.

Id. at 824-826.

Discussion

The Pro Confesso Judgment against T & M as garnishee was not appealed and was a final judgment in December 2009 when T & M’s ln“Petition to Annul Judgment” was filed. As shown above, a party may raise by appeal the nullity of a judgment within the action in which the judgment was rendered if appellate delays have not run. Otherwise, a separate action of nullity may be filed. Despite T & M’s erroneous printing of the prior suit number, No. 519,325, in the caption for its petition, the December 2009 petition represents a separate ordinary proceeding.

When viewed in that posture and not as a continuation of the prior garnishment action, Cadle’s exception of no cause of action must be adjudicated solely on the basis of the allegations of T & M’s “Petition to Annul Judgment.” The service documents and returns of the prior garnishment action were not before the trial court. T & M’s allegation that Jeremiah Thomas as president of the company did not receive notification of the pendency of the prior garnishment from the judgment debtor, Henson, has not been considered by a trier-of-fact. The exception of no cause of action asks simply whether a cause of action is presented on the face of the petition. Since we find that the petition states grounds for the nullity of the Pro Confesso Judgment, we reverse the trial court’s granting of the exception of no cause of action.

The jurisprudence regarding “ill practices” indicates that T & M has presented a cause of action for nullification of the judgment. The “ill | ^practice” of Cadle need not be shown to have been its deliberate act, if the mode of service in this unique case operated, even innocently, to deprive proper notice to T & M. A judgment debtor who remains delinquent in payment of his adjudicated obligation might be expected to be less than forthcoming about that debt and the garnishment proceedings aimed at a company for which he is serving as the agent for service of process. The judgment creditor’s knowledge of this conflicted predicament of the agent with his principal is clear. In this case, T & M’s petition alleges that notice of the garnishment proceeding was not properly received by the company’s president from Henson. That allegation is worthy of further review by evidentiary proceedings in view of the harsh consequences of the judgment pro confesso against a party caught by default for the judgment debtor/agent’s actions. A cause of action for nullification for a possible “ill practice” has been alleged.

Moreover, from the review of the bankruptcy law, the law regarding judgments pro confesso, and the allegations of the petition, the judgment debtor’s bankruptcy allegedly occurred before the contradictory hearing pursuant to La. C.C.P. art. 2413 was held. Therefore, at that stage of the garnishment proceedings, the garnishee, T & M, had not yet been adjudicated as personally liable for the debt of the judgment debtor, Henson. Under |1sArticle 2413(B), T & M could still deliver the property of Henson to the state court or prove that T & M never had any property of Henson. The action (contradictory hearing) for a pro confesso judgment therefore remained an action against the property of the judgment debtor because the delinquent garnishee could deliver that property to the court and never incur a personal judgment. Such action still involved the debtor’s property and was an action against the bankruptcy estate in violation of the stay. Thus, T & M’s allegations regarding the creditor’s violation of the automatic stay after the initiation of the bankruptcy proceedings may present a viable claim for nullity of the Pro Confesso Judgment under La. C.C.P. art. 2002(A)(3), or at a minimum, provide further support for the claim of “ill practice” in Cadle’s obtaining of the Pro Confesso Judgment.

Conclusion

The trial court’s grant of the exception of no cause of action is reversed and the case remanded. Costs of appeal are assessed to appellee.

REVERSED AND REMANDED.

      . T & M erroneously lists in paragraph 5 the judgment debtor as "T & M Fence Company.” As previously indicated in paragraph 4 of the petition, however, the judgment debtor is Frederick V. Henson, who was T & M’s agent for service of process.

      . The 15-day period the garnishee had to respond under La. C.C.P. art. 2412(D) had not yet lapsed.