author: AMY, Judge.

text:
    Henry HARVEY, et ux. v. CITY OF EUNICE POLICE DEPARTMENT, et al.
    No. 10-1228.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      John F. Wilkes, III, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Ap-pellees City of Eunice Police Department, Chief Gary Fontenot.
    Jarvis J. Claiborne, Opelousas, LA, for Plaintiffs/Appellants Henry Harvey, Lisa Harvey.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

b The plaintiffs filed suit, seeking damages for injuries they alleged were the result of the defendants’ unlawful actions in arresting Mr. Henry Harvey for disturbing the peace and resisting an officer. The defendants asserted various defenses, including that the arrest was lawful and that the officers involved did not use excessive force. After trial, the trial court found in favor of the defendants and dismissed the case. The plaintiffs appeal. For the following reasons, we affirm. We deny the defendants’ request for damages, attorney’s fees and costs for frivolous appeal.

Factual and Procedural Background

On October 2, 2006, Sergeant Sandra Castille responded to an anonymous phone call that someone was smoking marijuana on the front porch of the plaintiffs’ residence in Eunice, Louisiana. According to testimony, when Sergeant Castille knocked on the Harveys’ front door, Mrs. Harvey was in the living room watching television and Mr. Harvey was in the back of the house. Mrs. Harvey invited Sergeant Cas-tille into the residence and denied that anyone was in the residence smoking marijuana. At some point, Mr. Harvey came out into the living room and spoke to Sergeant Castille. Officer Miller arrived shortly thereafter. At this point, the testimony diverges into substantially different versions of the events leading to Mr. Harvey’s arrest and alleged injuries.

The Harveys contend that, while Mr. Harvey was obtaining the police officers’ names so he could make a complaint, Officer Miller arrested Mr. Harvey. According to their testimony, Officer Miller refused to accommodate Mr. Harvey’s back injury by handcuffing him in the front. They also alleged that, even though Mr. Harvey was not aggressive, Officer Miller “kneed” him, causing him to fall to the ground. In |2contrast, the police officers both testified that Mr. Harvey was angry and shouting obscenities at his neighbors. Their testimony reflected that, when Officer Miller attempted to arrest Mr. Harvey for disturbing the peace, he refused to comply. Both officers testified that Mr. Harvey fell to the ground and that Officer Miller did not use any kind of police “take-down” technique on him.

Whatever the case, after Mr. Harvey fell and began to complain, Sergeant Castille called an ambulance and Mr. Harvey was taken to the hospital for treatment. Mr. Harvey contends that the fall injured, or re-injured, his knee and aggravated a prior back injury.

The plaintiffs filed suit seeking damages for assault and battery, police brutality, false imprisonment, negligent infliction of emotional distress, intentional infliction of emotional distress, filing false charges, negligence, police brutality and loss of consortium against Officer Miller, the City of Eunice Police Department and the chief of police. The trial court subsequently granted in part the defendants’ motion for summary judgment, dismissing all claims except for the negligent injury, excessive force, and loss of consortium claims. After a bench trial, the trial court found in favor of the defendants and dismissed the case. The plaintiffs appeal, asserting as their sole assignment of error that the trial court erred in determining that the force used in the arrest of Mr. Harvey was reasonable.

The defendants filed an answer, alleging that the plaintiffs’ appeal is frivolous because it does not present a substantial legal question. The defendants seek damages, attorney’s fees and costs.

|3Discussion

Standard of Review

A trial court’s findings of fact should not be set aside in the absence of manifest error or unless it is clearly wrong. Ardoin v. Firestone Polymers, 10-245 (La.1/19/11), 56 So.3d 215. Thus, an appellate court should not reverse if the trial court’s determination is reasonable in light of the entirety of the record. Id. Further, if there are two permissible views of the evidence, the trial court’s determination cannot be manifestly erroneous. Id.

Excessive Force

Generally, excessive force claims fall under the duty/risk analysis for negligence claims. Stroik v. Ponseti, 96-2897 (La.9/9/97), 699 So.2d 1072. Under that standard, the plaintiff must prove “(1) the conduct in question was the cause-in-fact of the resulting harm; (2)[the] defendant owed a duty of care to plaintiff; (8) the requisite duty was breached by the defendant; [and] (4) the risk of harm was within the scope of protection afforded by the duty breached.” Id. at 1077. In determining whether there was a breach of duty, the court should apply the factors enumerated in Kyle v. City of New Orleans, 358 So.2d 969 (La.1977).

In Kyle, 353 So.2d 969, the supreme court specifically addressed analysis of excessive force claims, stating:

The use of force when necessary to make an arrest is a legitimate police function. But if the officers use unreasonable or excessive force, they and their employer are liable for any injuries which result.
Whether the force used is reasonable depends on the totality of the facts and circumstances in each case. A court must evaluate the officers’ actions against those of ordinary, prudent and reasonable men placed in the same position as the officers and with the same knowledge as the officers. The degree of force is a factual issue. As such, the trial court’s finding is entitled to great weight.
| ¿Several factors to be considered in making this determination are the known character of the arrestee, the risks and dangers faced by the officers, the nature of the offense involved, the chance of the arrestee’s escape if the particular means are not employed, the existence of alternative methods of arrest, the physical size, strength, and weaponry of the officers as compared to the arrestee, and the exigencies of the moment.

Id. at 972-73. (Citations Omitted.)

In this case, there was conflicting testimony at the trial. Mr. Harvey’s overall testimony was that, throughout the entire incident, he acted courteously and reasonably. According to the Harveys, both Sergeant Castille and, in particular, Officer Miller, were disrespectful. Mr. Harvey denied raising his voice or screaming at his neighbors. Mr. Harvey contended that, although he was cordial and polite, Officer Miller decided to arrest him. He alleged that, despite his protestations, Officer Miller insisted on handcuffing him in a way that would aggravate his existing back injury. Mr. Harvey testified that, when he attempted to passively resist, Officer Miller violently forced him to the ground, kneed him in the back repeatedly and attempted to drag him through the mud by one handcuffed arm. Both plaintiffs also contended that Officer Miller used foul language and racial slurs toward the plaintiffs.

According to the defendants, Mr. Harvey’s injuries were essentially the result of his own bad behavior. In contrast to the plaintiffs’ testimony, both Sergeant Cas-tille and Officer Miller testified that Mr. Harvey was the aggressor. Sergeant Cas-tille testified that Mr. Harvey became agitated and began screaming obscenities at his neighbors. She also testified that, on two occasions, Mr. Harvey physically prevented her from leaving. The officers both agreed that, after Mr. Harvey began [.^screaming obscenities yet again, Officer Miller attempted to arrest him. The officers testified that, although they told Mr. Harvey that they would handcuff him in the front in order to accommodate his injury, he continued to resist Officer Miller’s attempts to handcuff him. Although the officers were not sure if Mr. Harvey tripped or stumbled, they both testified that Mr. Harvey fell to the ground and that Officer Miller did not use any kind of force to make him do so. They further agreed that Officer Miller did not knee Mr. Harvey in the back or drag him through the mud. Additionally, while the officers did not deny that Officer Miller may have used foul language, Sergeant Castille specifically noted that, if Officer Miller had used racial slurs, she would have written him up.

Here, the trial court found that Mr. Harvey’s version of the events leading to his injury was not credible. The trial court found that Mr. Harvey was yelling and cursing and refused to cooperate with the officers’ reasonable requests. The trial court also addressed each of the Kyle factors, in particular finding that Sergeant Castille felt threatened by Mr. Harvey’s behavior; that Mr. Harvey’s “attitude was poor, his voice was loud, [and] his language was unacceptable;” and that once Mr. Harvey “decided” that Sergeant Castille was not going to leave until she spoke with his landlord, the exigencies of the moment became paramount. Although the trial court did not make a determination as to how, exactly, Mr. Harvey fell to the ground, it specifically found that Officer Miller did not knee him or jump on his back.

In Cloy v. Lee, 01-920 (La.App. 5 Cir. 1/15/02), 807 So.2d 900, the plaintiff alleged that she suffered injuries to her neck and back as the result of the defendants’ use of excessive force in taking her into protective custody. She alleged that the arresting officers “dropped” her, causing her injuries. The fifth circuit upheld the trial | f,court’s determination that the officers did not use excessive force in attempting to pick the plaintiff up several times after she sat down on the ground and refused to get up.

Similarly, in Hall v. City of Shreveport, 45,205 (La.App. 2 Cir. 4/28/10), 36 So.3d 419, the arresting officer used a “straight arm lock” takedown technique while arresting the plaintiff for flight from an officer. The plaintiff filed suit, alleging that she had suffered injuries to her arm, neck and back as a result of the officer’s use of “excessive force.” The trial court found in favor of the defendants, determining that the officer was faced with a potentially dangerous situation, that the plaintiff was acting erratically and that the officer had to take into account the plaintiffs large size and strength when reacting to the situation. The second circuit upheld the trial court’s finding that the officer’s actions were not unreasonable given the totality of the circumstances.

The plaintiffs argue that this case is analogous to LaBauve v. State, 618 So.2d 1187 (La.App. 3 Cir.), writ denied, 624 So.2d 1235 (La.1993), wherein a panel of this court upheld the trial court’s determination that the plaintiffs injuries were due to the arresting officer’s negligence. In that case, the plaintiff, a seventy-six year old man, was arrested on suspicion of DUI and suffered facial injuries when he fell into the uneven rocks and gravel on the side of the roadway. There was conflicting testimony about whether the arresting officer “slammed” the plaintiff into the ground or whether, while preparing to use a “takedown” maneuver, the two tripped and fell. The trial court found that, while the injuries were unintentional, the officer was negligent in using a “takedown” maneuver on an elderly man where there were rocks and gravel near the side of the road.

|7We find unpersuasive the plaintiffs’ argument that LaBauve is analogous. In LaBauve, 618 So.2d 1187, one of the pivotal factors was that the officer exercised poor judgment as he intended to use a “takedown” maneuver. That is not the case here. The trial court specifically found that Officer Miller did not knee Mr. Harvey or jump on his back. Both officers testified that Officer Miller was not attempting to use any kind of tactical technique on Mr. Harvey. Their testimony reflected that Officer Miller was struggling with Mr. Harvey’s hands and that Mr. Harvey kept pulling his hands away. Mr. Harvey himself testified that he refused to comply with Officer Miller’s attempts to handcuff him and raised his hands over his head to keep Officer Miller from handcuffing him behind his back.

Our review of the record indicates that there were two conflicting versions of the events and that the trial court necessarily had to make a determination regarding the credibility of witnesses. When the findings are based on determinations regarding the credibility of witnesses, great deference must be given to the trial court’s findings of fact, as the trial court is “cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Hebert v. Rapides Parish Police Jury, 06-2001, 06-2164, p. 3 (La.1/16/08), 974 So.2d 635, 654 (on rehearing). There is ample support in the record for the trial court’s determination that Officer Miller was not negligent in the manner of arresting Mr. Harvey. In addition to the testimony of the officers, we note particularly that, in a criminal trial, Mr. Harvey was found guilty of disturbing the peace and not guilty of resisting an officer. The transcript from that trial as well as the criminal court’s minutes were entered into the record and were available for the trial court to consider. Therefore, giving proper deference to the trial court’s findings of fact, we find no | serror in the trial court’s determination that Officer Miller’s actions were not negligent.

This assignment of error is without merit.

Frivolous Appeal

An appellate court may award damages if it deems an appeal frivolous. La.Code Civ.P. art. 2164. The defendants answered this appeal, alleging that the plaintiffs’ appeal does not present a substantial legal question and requesting damages, attorney’s fees and costs.

Appeals are favored in Louisiana. Hannie v. Guidry, 10-216 (La.App. 3 Cir. 10/6/10), 48 So.3d 396. Damages for frivolous appeal may be awarded “when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellants’ counsel does not seriously believe in the position he advocates.” Id. at 406.

While we have found that there is no merit to this appeal, we do not find the issue presented is not a serious one, that the appeal was taken solely for delay, or that there is indication that the appellants’ counsel does not believe in the position advanced. Thus, we decline to award damages, attorney fees or costs.

DECREE

For the foregoing reasons, the trial court’s judgment is affirmed. All costs of this appeal are assessed to the plaintiffs, Henry and Lisa Harvey.

AFFIRMED. SANCTIONS FOR FRIVOLOUS APPEAL DENIED.

      . We note that, as a threshold issue, if the arrest was not lawful, the use of force by the officer to overcome the arrestee's resistance constitutes a battery. McDaniel v. Green, 99-1087 (La.App. 3 Cir. 12/22/99), 755 So.2d 942, writ denied, 00-200 (La.3/24/00), 758 So.2d 151. That is not an issue in this case, as the plaintiffs have conceded that the arrest was lawful.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    A FUSELIER BONDING SERVICE, INC. v. Carlos Jason PEREZ.
    No. 10-1416.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.

      Robert William Collings, Collings & Collings, Charles, LA, for Plaintiff/Appel-lee, A Fuselier Bonding Service, Inc.
    Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Carlos Jason Perez.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   SAUNDERS, Judge.

| TThis is a bond forfeiture case where the principal on a bond was subsequently arrested in another jurisdiction. The bond company filed suit in Lake Charles City Court (hereinafter “LCCC”) against the surety on the bond to enforce its rights under the agreements signed by it and the surety.

The surety responded by filing a recon-ventional demand individually and as class representative of any Louisiana citizen that had to pay the bond company any recovery fees. The LCCC found that the surety was liable to the bond company for $870.13 in expenses, $500.00 representing a minimum recovery fee, $25.00 representing an NCIC fee, and $500.00 in attorney’s fees. Further, the LCCC dismissed both the surety’s individual and representative reconventional demands with prejudice. The surety has appealed, asserting that under former La.R.S. 15:87, the bond company could not collect from him and that the LCCC should have transferred the entire matter to the district court because his representative reconventional demand was in excess of the LCCC’s subject matter jurisdiction. We affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY:

Anthony James Perez (hereinafter “Anthony”) was charged with third offense DWI on November 18, 2003. His bond on the charge was set at $15,000.00. Anthony’s bond was issued by Safety National Casualty Corporation to insure his appearance in court. Joseph Fuselier acted as the agent for Safety National Casualty Corporation and A. Fuselier Bonding Service, Inc. (Safety National Casualty Corporation, A. Fuselier Bonding Service, Inc., and Joseph Fuselier, hereinafter collectively referred to as “Fuselier”). Anthony’s brother, Carlos Jason Perez (hereinafter “Carlos”), signed multiple agreements in favor of Fuselier in conjunction |2with the bond transaction, including a document entitled “Bail Bond Indemnitor’s Promises,” a document entitled “Conditions of Bond,” a document entitled “Fuselier Bonding Services,” and a document entitled “Bail Bond Agreement, Indemnity Agreement and Contract of Guaranty.”

Anthony then left Louisiana and subsequently was arrested and incarcerated in Texas. Anthony did not appear for his trial in Louisiana due to his Texas incarceration. A bench warrant and bond forfeiture was ordered and then subsequently set aside via judgments.

Fuselier filed suit against Carlos seeking to enforce its rights under the agreements between the parties. Carlos responded, inter alia, by filing an individual reconven-tional demand and a representative recon-ventional demand on behalf of a class that he defined as all Louisiana citizens that paid Fuselier any “recovery fees.” In that representative reconventional demand, Carlos asserted that Fuselier’s “recovery fees” were in the amount of $1,500.00 and that Fuselier issued hundreds of bonds per year in Louisiana.

A trial was held in the LCCC. The LCCC issued a judgment that awarded Fuselier $370.13 as expenses, $500.00 as a minimum recovery fee, $25.00 as an NCIC fee, and $500.00 in attorney’s fees under the agreements. Further, the LCCC dismissed, with prejudice, both of Carlos’ re-conventional demands. Carlos has appealed.

ASSIGNMENTS OF ERROR:

In brief, Carlos asserts the following two assignments of error for this court to consider:

1. The bond forfeiture is null and void and provides no basis for the liability by the guarantor rendering the judgment an error of law.
[ c.2. The court erred in refusing to transfer this entire matter to the district court.

ASSIGNMENT OF ERROR NUMBER ONE:

Carlos contends in his first assignment of error that the LCCC erred as a matter of law in finding that he was liable to Fuselier given that the bond forfeiture is null and void. We find no merit to this contention.

Carlos’ argument in this assignment of error raises a question of law. Such questions of law are reviewed de novo to determine whether the lower court was legally correct in its judgment. Guillory v. Allied Waste Indus., Inc., 10-159 (La.App. 3 Cir. 10/6/10), 47 So.3d 23.

Carlos’ contention is based on an argument that the LCCC did not properly consider the ramifications of the application of former La.R.S. 15:87, now La.Code Crira.P. art. 349.9, to the factual situation before us. Former La.R.S. 15:87 stated:

14A. No judgment decreeing the forfeiture of an appearance bond shall be rendered, if it is shown to the satisfaction of the court that the defendant, principal in such bond, is prevented from attending because of any of the following:
(1) He has a physical disability, illness, or injury.
(2) He is being detained in the jail or penitentiary of another jurisdiction.
(3) He is serving in the armed forces of the United States.
B. A sworn affidavit of the jailer, warden, physician, commanding officer, or other responsible officer where the principal is detained, who attests to the cause of the defendant’s failure to appear shall be considered adequate proof of the defendant/principal’s inability to appear.
C. If a judgment of bond forfeiture is rendered while the defendant is prevented from appearing for reasons enumerated in this Section, the court shall declare the judgment of bond forfeiture null and void if the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within six months of the mailing of notice of the signing of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for the causes enumerated in this Section.

According to Carlos, the principal obligation between the parties is the May 30, 2007 judgment of appearance bond forfeiture. Because that judgment was rendered null and void by La.R.S. 15:87(C), there lacks a basis for Fuselier to impose the accessorial obligations from any of the agreements he signed as Anthony’s surety. This argument lacks merit.

Carlos’ characterization of the judgment of appearance bond forfeiture as the principle obligation whose voidance renders all agreements between him and Fuselier null is unfounded. Regardless of whether the judgment of bond forfeiture is null and | svoid, Carlos is still bound, as Anthony’s surety, by the terms of the agreements that he entered into with Fuselier. Paragraph 5 of the agreement entitled Bail Bond Agreement, Indemnity Agreement and Contract of Guaranty states the following, in pertinent part:

The parties hereto agree that the following acts shall constitute default under this contract and no notice or placing in default shall be necessary by Company to Indemnitors prior to enforcing its legal rights herein, as time is of the essence as to this Agreement. Upon any of the following acts of default, Company shall at its option, have the right to exercise any rights which it may have under any collateral agreements and/or on the promissory note securing performance herein and/or any other right which Company may have at law.
(c) The failure of the Defendant to refrain from engaging in any conduct that constitutes a violation of law or that may or does result in the Defendant’s arrest on any other charge.
(f) The failure of the Defendant to remain within the jurisdiction of the court, without first notifying the court and obtaining written permission from Company to remove himself from the jurisdiction of the court.

It is evident that Anthony violated both Paragraphs 5(c) and 5(f) of the Bail Bond Agreement, Indemnity Agreement and Contract of Guaranty, as he was subsequently arrested, a violation of Paragraph 5(c), in Texas, a violation of Paragraph 5(f). Under the clear language of Paragraph 5, Fuselier could pursue Carlos under the Bail Bond Agreement, Indemnity Agreement and Contract of Guaranty as “Indem-nitor” of Anthony regardless of whether the bond forfeiture judgment was nullified by former La.R.S. 15:87(C). Accordingly, this assignment of error is without merit. We find no error by the LCCC in finding that Carlos can be held hable to Fuselier regardless of the judgment of appearance bond forfeiture being |f,rendered null and void by former La.R.S. 15:87.

ASSIGNMENT OF ERROR NUMBER TWO:

In his second assignment of error, Carlos asserts that the LCCC erred in refusing to transfer this entire matter to the district court. We do not agree.

Carlos’ assertion is based on a contention that the LCCC lacked subject matter jurisdiction. Whether a court has subject matter jurisdiction is a question of law subject to a de novo review. Chavers v. Bright Truck Leasing, 06-1011 (La.App. 3 Cir. 12/6/06), 945 So.2d 838, writ denied, 07-304 (La.4/5/07), 954 So.2d 141.

Louisiana Code of Civil Procedure Article 4843(E) establishes that “[i]n ... the City Court of Lake Charles ... the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed twenty-five thousand dollars.” Louisiana Code of Civil Procedure Article 4845 states:

A. (1) When a parish or city court has subject matter jurisdiction over the principal demand, it may exercise subject matter jurisdiction over any properly instituted incidental action arising out of the same transaction or occurrence from which the principal demand arose, regardless of the amount in dispute in the incidental demand. When a justice of the peace court has jurisdiction over the principal demand, it may exercise subject matter jurisdiction over a good faith incidental demand in the same manner as a parish or city court, except that if the amount in dispute of such incidental demand exceeds its jurisdictional amount, a justice of the peace court may not continue to exercise jurisdiction except for purposes of transferring the entire action as provided in this Section.
(2) When an otherwise properly instituted incidental demand exceeds the subject matter jurisdiction of a parish or city court, the court may transfer the entire action to a court of proper jurisdiction.
B. When a compulsory reconventional demand exceeds the jurisdiction of a parish or city court, and when any good faith incidental demand before a justice of the peace court exceeds the jurisdictional amount of the justice of a peace court, the court shall transfer the entire action to a court of proper jurisdiction. The party filing the incidental | 7demand that causes the justice of the peace court to transfer the action shall be responsible for payment of all costs for the transfer and shall make payment of the costs directly to the clerk of court of the transferee court within fifteen days of the filing of the incidental demand in the justice of the peace court.

Carlos argues that when he filed a re-conventional demand on his behalf and the behalf of others similarly situated, this entire matter transformed into a class action whose claims exceeded the jurisdiction of the LCCC. Therefore, according to Carlos, the LCCC erred in not transferring the entire matter to district court. This argument is misguided.

The amount demanded by the plaintiff is determinative of whether a court of limited jurisdiction has subject matter jurisdiction. Williams v. Whitmeyer, 327 So.2d 541 (La.App. 2 Cir.), writ refused, 380 So.2d 317 (La.1976); La.Code Civ.P. art. 4. Fuselier, as plaintiff, brought its claim against Carlos for approximately $5,000.00, an amount well within the LCCC’s jurisdictional limit. Carlos, as plaintiff-in-reconvention, asserted that his individual claim against Fuselier was for a recovery of $1,500.00. Again, this amount is well within the LCCC’s jurisdictional limit. Therefore, the LCCC was well within its power and authority to dismiss Carlos’ individual reconventional demand with prejudice, as it seemingly found Carlos’ individual claim to be without merit.

However, Carlos, as plaintiff-in-re-convention, asserted a claim as a representative of a class with the proposed definition of “[a]ll Louisiana residents who purchased bail bonds from Fuselier and who were damaged by paying additional fees, also called ‘recovery fees.’” This asserted claim as a representative, when coupled with Carlos’ allegation that Fuse-lier writes hundreds of appearance bonds per year and many of those customers have to pay “recovery fees,” clearly exceeds the | ¿jurisdictional limit of the LCCC. This results in either the application of La.Code Civ.P art. 4845(A) or (B) depending on whether Carlos’ representative reconventional demand is characterized as a compulsory reconventional demand.

If Carlos’ representative reconventional demand is compulsory, then the LCCC erred in reaching any judgment in this case under La.Code Civ.P. art. 4845(B) that mandates transfer of the entire matter to a court of proper jurisdiction when a compulsory reconventional demand exceeds the jurisdictional limit of a court of limited jurisdiction. However, if Carlos’ representative reconventional demand is not compulsory, then, under the permissive “may” language of La.Code Civ.P. art. 4845(A)(2), the LCCC has discretion whether to transfer the entire case or simply dismiss it.

A compulsory reconventional demand is a reconventional demand that arises out of the same “transaction or occurrence that is the subject matter of the principal action.” La.Code Civ.P. art. 1061(B). We find that Carlos’ representative reconventional demand is not compulsory. The principal action encompasses the dealings between Carlos and Fuselier. The principal action for claims of each class member that Carlos presumes he can represent involves the dealings between that class member and Fuselier. Thus, they do not arise from the same transaction or occurrence.

We now turn to whether the LCCC properly dismissed Carlos’ representative reconventional demand with prejudice. Unless the action was knowingly filed in the wrong venue, the case should be transferred rather than dismissed. Marler v. Petty, 94-1851 (La.4/10/95), 653 So.2d 1167. Here, Carlos certainly had knowledge that he was filing the representative reconventional demand in a venue without subject 1 flmatter jurisdiction, as he filed a motion to transfer the entire case to district court when he filed the representative reconventional demand. Thus, we find no error by the LCCC in dismissing his representative claim rather than granting Carlos’ request to transfer the entire matter. However, the case before us presents this court with the question of whether a court that lacks subject matter jurisdiction can dismiss a claim with prejudice. We find that it cannot.

Louisiana Code of Civil Procedure Article 2 states that “^jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” Further, La.Code Civ.P. art. 3 states, in pertinent part, that “[a] judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.” Louisiana Code of Civil Procedure Article 1673 states, “[a] judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.”

In reading La.Code Civ.P. art. 2 with La.Code Civ.P. art. 3, when a court lacks subject matter jurisdiction, it lacks the ability to pass judgment on an action, and a judgment by a court that lacks subject matter jurisdiction is void with respect to an action it has no power to entertain. Here, the LCCC dismissed Carlos’ representative reconventional demand with prejudice. A dismissal with prejudice bars an action from being reasserted in any forum under the principles of res judicata. See Classen v. Hofmann, 06-560 (La.App. 5 Cir. 11/28/06), 947 So.2d 76. We already determined that the trial court had no subject matter jurisdiction over that action. Thus, its | ^judgment on dismissing Carlos’ representative recon-ventional demand with prejudice is improper. The LCCC does not have the power or authority to issue a judgment that bars Carlos from bringing the representative reconventional demand as a separate claim in a proper forum. Accordingly, we amend the LCCC’s judgment to reflect that Carlos’ representative recon-ventional demand is dismissed without prejudice.

CONCLUSION:

Carlos raised two assignment of errors. We find no error by the LCCC in its judgment that Fuselier can recover from Carlos under the entered-into agreements. We also find no error in LCCC’s dismissal of Perez’s individual reconventional demand with prejudice. However, we do find that the LCCC did not have the authority or power to dismiss Carlos’ representative reconventional demand with prejudice. Thus, we reverse the LCCC’s judgment dismissing Carlos’ representative reconventional demand with prejudice and render judgment dismissing Carlos’ representative reconventional demand without prejudice. Costs of these proceedings are to be divided equally between plaintiffs/appellees, A. Fuselier Bonding Company and Joseph Fuselier, and defendant/appellant, Carlos Jason Perez.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Louisiana Code of Criminal Procedure Article 349.9 states:
      A. A judgment decreeing the forfeiture of an appearance bond shall not be rendered if it is shown to the satisfaction of the court that the defendant, principal in the bond, is prevented from attending because of any of the following:
      (1) He has a physical disability, illness, or injury.
      (2) He is being detained in the jail or penitentiary of another jurisdiction.
      (3) He is serving in the armed forces of the United States.
      (4) He is a member of the Louisiana National Guard called to duty pursuant to R.S. 29:7. This provision does not apply to appearances in a state military court.
      B. An affidavit by the jailer, warden, or other responsible officer where the principal is detained, or commanding officer, attesting to the cause of the failure to appear of the defendant shall be considered adequate proof of the inability to appear by the defendant.
      C.If a judgment of bond forfeiture is rendered while the defendant is prevented from appearing for any reason enumerated in this Article, and if the defendant or his sureties file a motion to set aside the judgment of bond forfeiture within one hundred eighty days after the date of the mailing the notice of the signing of the judgment of bond forfeiture, and it is shown to the satisfaction of the court that the defendant was prevented from attending for any cause enumerated in this Article, the court shall declare the judgment of bond forfeiture null and void.


author: GENOVESE, Judge.

text:
    Willie J. ZENO, Sr. v. FLOWERS BAKING COMPANY.
    No. 10-1413.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Rehearing Denied May 11, 2011.
    Willie J. Zeno, Sr., Lafayette, Louisiana, In Proper Person, Plaintiff/Appellant.
    Charles J. Foret, Jason R. Garrot, Bri-ney Foret Corry, LLP, Lafayette, Louisiana, for Defendant/Appellee, Flowers Baking Company of Lafayette, LLC.'
    Court composed of JOHN D. SAUNDERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

|Jn this workers’ compensation case, Willie J. Zeno, Sr., in proper person, appeals the judgment sustaining the peremptory exceptions of prescription and res ju-dicata filed by Defendant, Flowers Baking Company (Flowers). Flowers answered the appeal, seeking an increase in the $500.00 award of sanctions against Mr. Zeno. For the following reasons, we affirm the judgment of the Office of Workers’ Compensation sustaining the peremptory-exceptions, and we deny Flowers’ request for an increase in sanctions.

FACTS AND PROCEDURAL HISTORY

Mr. Zeno filed a disputed claim for workers’ compensation benefits, commonly referred to as a 1008,. on March 23, 2010. In his claim, Mr. Zeno alleged that he was injured in the course and scope of his employment with Flowers on November 13,1989.

Flowers filed peremptory exceptions of prescription and res judicata and requested an award of sanctions against Mr. Zeno. Flowers argued that Mr. Zeno’s claim was barred because it was not filed within the one-year prescriptive period set forth in La.R.S. 23:1209 and because a judgment dismissing Mr. Zeno’s original 1008 with prejudice was rendered on February 8, 1993. Flowers also requested an award of sanctions against Mr. Zeno for his alleged violation of La.Code Civ.P. art. 863. | ¡¿Flowers asserted that this is the third claim filed by Mr. Zeno relating to the same alleged work-related injury in which it has had to defend itself.

Mr. Zeno argued that his claim was not barred by prescription because fraud was committed in the proceedings involving his original 1008, and he asserted that the fraud interrupted the prescriptive period. Mr. Zeno alleged that the February 8, 1993 judgment signed by the Workers’ Compensation Judge (WCJ), Sheral C. Kellar, which dismissed his original claim with prejudice, was fraudulent. He maintained that the 1993 judgment is fraudulent because it states that a trial was held on May 20, 1992; however, Mr. Zeno argued that he could prove that no trial was ever held. It is pertinent and noteworthy that Mr. Zeno did not appeal the February 8,1993 judgment.

A hearing in this matter was held on July 29, 2010. The WCJ ruled in favor of IsFlowers, sustaining its peremptory exceptions of prescription and res judicata. Further, the WCJ concluded that sanctions were appropriate and ordered Mr. Zeno to pay $500.00 to Flowers. A judgment to this effect was signed on August 11, 2010. Mr. Zeno has filed an appeal of this judgment. Flowers has answered the appeal, seeking an increase in the award of sanctions against Mr. Zeno.

ISSUES

The issues presently before this court are whether the WCJ erred in sustaining Flowers’ exceptions of prescription and res judicata and whether Flowers is entitled to an increase in the award of sanctions against Mr. Zeno.

LAW AND DISCUSSION

In Beach v. Peter Scalfano Enters., 06-1139, pp. 3-4 (La.App. 3 Cir. 2/7/07), 949 So.2d 653, 656, writ denied, 07-408 (La.4/5/07), 954 So.2d 144, this court set forth both the burden of proof and the appellate standard of review applicable to the instant matter as follows:

“The burden of proof on the prescription issue lies with the party asserting it; however, where the petition shows on its face that the claim has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended.” Stevens v. Bruce, 04-133, p. 3 (La.App. 3 Cir. 6/2/04), 878 So.2d 734, 737 (citing Amoco Prod. Co. v. Texaco, Inc., 02-240, pp. 7-8 (La.App. 3 Cir. 1/29/03), 838 So.2d 821, 829, writs denied, 03-1102, 03-1104 (La.6/6/03), 845 So.2d 1096).
In Leger v. Sonnier Exterminating Co., 05-1291, p. 4 (La.App. 3 Cir. 4/5/06), 926 So.2d 158, 161, writ denied, [06— 1033] (La.6/23/06), 930 So.2d 982, this court discussed appellate review relative to an exception of prescription stating as follows:
Ordinarily, when an appeal involves a ruling on a peremptory exception with contested issues of fact and “[w]hen evidence is introduced and evaluated in the trial court on a peremptory exception, the appellate court must |4review the entire record to determine whether the trial court manifestly erred with its factual conclusions.” Egle v. Egle, 01-927, p. 4 (La.App. 3 Cir. 2/6/02), 817 So.2d 136, 139 (quoting Parker v. Buteau, 99-519, p. 3 (La.App. 3 Cir. 10/13/99), 746 So.2d 127,129). However, in a case in which there are no contested issues of fact and the only issue is the application of the law to the undisputed facts, as in the case at bar, the appellate court must decide whether the lower court’s decision is legally correct or incorrect. Sieferman v. State Farm Mut. Auto. Ins. Co., 01-439 (La.App. 3 Cir. 10/3/01), 796 So.2d 833 (citing Huddleston v. Farmers Merchants Bank & Trust Co., 00-640 (La.App. 3 Cir. 11/1/00), 772 So.2d 356).

Prescription

On appeal, Mr. Zeno argues that his claim is not barred because fraud interrupted the running of prescription. According to the February 8, 1993 judgment signed by WCJ Kellar, a trial was held on the original 1008 on May 20, 1992, and Mr. Zeno was present in court for the trial. Mr. Zeno asserts that no trial ever took place and that he has medical records which prove that he was in Alexandria on May 20, 1992; therefore, he alleges that the judgment signed by WCJ Kellar on February 8, 1993, was fraudulent. Mr. Zeno also contends that Flowers should produce a transcript from the trial if one did, in fact, occur. Mr. Zeno ultimately argues that the inability of Flowers to produce a transcript of the May 20, 1992 trial supports his assertion that no trial ever took place.

Louisiana Revised Statutes 23:1209(A)(1) provides, in pertinent part: “In case of personal injury ... all claims for payments shall be forever barred unless within one year after the accident ... a formal claim has been filed.... ” The date of Mr. Zeno’s alleged work-related injury is undisputedly November 13, 1989. The 1008 filed by Mr. Zeno on March 23, 2010, was filed nearly twenty-one years after the alleged accident.

| fiWe find no evidence supporting Mr. Zeno’s allegations of fraud in the record of these proceedings. Contrary to Mr. Zeno’s understanding, it is not Flowers’ burden to prove that a trial occurred; it is Mr. Zeno’s burden to prove that a trial did not occur and that the judgment is fraudulent. He has failed to offer evidence supporting his contention of fraud. Further, Mr. Zeno did not appeal the judgment signed by WCJ Kellar on February 8, 1993.

After his second 1008 was filed in 1998, a Motion and Order to Dismiss Mr. Zeno’s claim with prejudice was filed on March 8, 1999. Mr. Zeno also did not appeal the dismissal of this (second) claim. Though Mr. Zeno devotes much of his argument in his brief explaining how both his counsel and opposing counsel, as well as WCJ Kel-lar, are guilty of either legal malpractice, judicial misconduct, or fraud, we find no evidence in the record supporting Mr. Zeno’s allegations. That is not the issue before us on appeal. Mr. Zeno has appealed the dismissal of his workers’ compensation claim. He has not appealed any claim for legal malpractice or judicial misconduct. Those issues are to be dealt with in the other litigation Mr. Zeno says he has filed and/or pending. This court is limited strictly to the legal issues and record before us — nothing else.

Prescription was interrupted with the timely filing of Mr. Zeno’s original 1008 which was filed within one year of his alleged work-related accident. Mr. Zeno’s failure to appeal the February 8, 1993 judgment renders it a final judgment and concludes this matter. The 1008 at issue in the present appeal, which is Mr. Zeno’s disputed claim for workers’ compensation benefits filed on March 23, 2010, is | ^untimely. Thus, we find no manifest or clear error in the WCJ’s ruling that Mr. Zeno’s claim is clearly prescribed.

Res Judicata

Louisiana Revised Statutes 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

After Mr. Zeno was allegedly injured in 1989, he filed a disputed claim for workers’ compensation benefits; however, this claim was dismissed with prejudice by judgment signed on February 8,1993.

The peremptory exception of res judica-ta bars a subsequent judgment when “1) both cases involve the same parties; 2) the prior judgment was rendered by a court of competent jurisdiction; 3) the prior decision was a final judgment on the merits; and 4) the same cause of action is at issue in both cases.” Jones ex rel. Jones v. GEO Group, Inc., 08-1276, p. 5 (La.App. 3 Cir. 4/1/09), 6 So.3d 1021, 1025 (quoting Terrebonne Fuel & Lube v. Placid Ref. Co., 95-654, 95-671, p. 15 (La.1/16/96), 666 So.2d 624, 633).

|7We have reviewed Mr. Zeno’s present 1008, and we find all the elements necessary for the application of res judicata have been proven. Mr. Zeno’s present 1008 involves the same parties. The prior judgment was a final judgment on the merits and was rendered by a court of competent jurisdiction. Finally, the same claim for workers’ compensation benefits is at issue in both Mr. Zeno’s original 1008 and his present 1008. Therefore, we find no manifest or clear error in the WCJ’s ruling that Mr. Zeno’s claim is barred on the grounds of res judicata.

Sanctions

“Appellate review of claims for sanctions is governed by the manifest error and abuse of discretion standard.” S. Ingenuity, Inc. v. Benjamin, 02-1426, p. 5 (La. App. 3 Cir. 4/17/03), 854 So.2d 876, 880, writ denied, 03-1396 (La.9/19/03), 853 So.2d 646 (citing Doe v. Jeansonne, 98-183 (La.App. 3 Cir. 10/7/98), 719 So.2d 690).

[Louisiana Code of Civil Procedure] Article 863 allows for the imposition of sanctions and attorney fees for an attorney or litigant who signs a pleading without having made a
reasonable inquiry [to insure that] it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Id. at 879 (alteration in original)(quoting La.Code Civ.P. art. 863(B)). The record reveals that the claim presently before this court is the third disputed claim for workers’ compensation benefits filed by Mr. Zeno relating to his alleged work-related injury in 1989. These repetitive and duplicitous actions by Mr. Zeno do constitute an abuse of the judicial system. Though we find the WCJ’s imposition of sanctions against Mr. Zeno in the amount of $500.00 to be on the low side, based upon the | ^history of these proceedings, we cannot say that the WCJ abused his discretion or was manifestly erroneous in his ruling on that issue.

DECREE

The judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal are assessed against Plaintiff/Appellant, Willie J. Zeno, Sr.

AFFIRMED.

      . This is the third 1008 filed by Mr. Zeno relative to his alleged November 13, 1989 work-related accident. The original 1008, docket number 91-03361, was tried on May 20, 1992, and dismissed by judgment signed on February 8, 1993. The second 1008, docket number 98-06769, was dismissed pursuant to a Motion and Order of Dismissed filed by Mr. Zeno’s counsel at that time, Akilah Ma-wusi Ali, and signed on March 8, 1999.

      . Louisiana Code of Civil Procedure Article 863 provides:
      A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
      B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
      C. If a pleading is not signed, it shall be stricken unless promptly signed after the omission is called to the attention of the pleader.
      D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented parly, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
      E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
      F. A sanction authorized in Paragraph D shall not be imposed with respect to an original petition which is filed within sixty days of an applicable prescriptive date and then voluntarily dismissed within ninety days after its filing or on the date of a hearing on the pleading, whichever is earlier.

      . Mr. Zeno did file a motion to appeal; however, it was dismissed for his failure to pay the cost of filing an appeal and preparing the record for appeal. Preparing the record for appeal includes having a court reporter type the trial transcript.


author: GENOVESE, Judge. SAUNDERS, Judge,

text:
    The LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT v. OILFIELD HEAVY HAULERS, L.L.C., Ace Transportation, Inc., David Kyle Vincent, II, and Liberty Mutual Fire Insurance Company.
    No. 10-1392.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    James M. Bookter, Assistant General Counsel-Office of General Counsel, Baton Rouge, LA, for Plaintiff/Appellant, The Louisiana Department of Transportation and Development.

      Paul D. Gibson, Jason B. Boudreaux, W. Corey Grimley, Gibson, Gruenert & Zaun-breeher, P.L.L.C., Lafayette, LA, for Defendant/Appellee, Oilfield Heavy Haulers, L.L.C.
    Dale P. Martin, Martin Law Firm, Broussard, LA, for Defendants/Appellees, David Kyle Vincent, II, Ace Transportation, Inc. and Liberty Mutual Fire Insurance Company.
    Court composed of JOHN D. SAUNDERS, BILLY H. EZELL, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

b Plaintiff, the Louisiana Department of Transportation and Development (DOTD), appeals the trial court’s judgment denying its Motion to Vacate and Set Aside Order of Dismissal which dismissed DOTD’s claims on the grounds of abandonment. For the following reasons, we affirm.

FACTS

DOTD filed a lawsuit against Defendants for property damage allegedly done to two of its overpasses on Interstate 10 in Acadia Parish. DOTD asserted that a vehicle owned by Defendant, Oilfield Heavy Haulers, L.L.C. (OHH), leased to Defendant, Ace Transportation, Inc., insured by Defendant, Liberty Mutual Fire Insurance Company, and being driven by Defendant, David Kyle Vincent, II, caused the damage when the vehicle, which was carrying an oversized load, struck the overpasses in both the east and westbound lanes. Defendants filed responsive pleadings, including a cross-claim and third party demand by Ace Transportation, Inc., David Kyle Vincent, II, and Liberty Mutual Fire Insurance Company (collectively Ace).

On May 21, 2010, Ace filed an Ex Parte Motion and Order of Dismissal asserting that:

no step has been timely taken in the prosecution or defense of this action for a period of three years after March 15, 2007[,] and, as such, this matter has been abandoned pursuant to the provisions of LSA-C.C.P. Article 561 [,] and mover is entitled to and prays for an order of dismissal.]

The order of dismissal was signed by the trial court on May 24, 2010.

DOTD then filed a Motion to Vacate and Set Aside Order of Dismissal on June 18, 2010. Following a hearing on September 27, 2010, the trial court denied DOTD’s motion; a judgment consistent therewith was signed on October 5, 2010. DOTD appeals.

| ^ASSIGNMENTS OF ERROR

DOTD presents the following assignments of error for our review:

1. The trial court erred in determining that the scheduling of a Rule 10.1 [] discovery conference is not a “step” in the prosecution or defense of an action.
2. The trial court erred in determining that formal discovery responses by DOTD to [OHH] did not constitute a “step” in the prosecution or defense of an action.
3. The trial court erred in its mis-appli-cation or non-application of the jurisprudence interpreting [Louisiana] Code of Civil Procedure Article 561.
LAW AND DISCUSSION
The issue in this appeal concerns a question of law. The scope of appellate review for an issue of law is simply to determine whether the trial court’s interpretative decision is legally correct. Voisin v. International Companies & Consulting, Inc., 05-0265 (La. App. 1 Cir. 2/10/06), 924 So.2d 277, 279, writ denied, 06-1019 (La.6/30/06), 933 So.2d 132. An appellate court owes no deference to the legal conclusions of the trial court. Jackson v. BASF Corp., 04-2777 (La.App. 1 Cir. 11/4/05), 927 So.2d 412, 415, writ denied, 05-2444 (La.3/24/06), 925 So.2d 1231.

Jackson v. Moock, 08-1111, p. 4 (La.App. 1 Cir. 12/23/08), 4 So.3d 840, 843.

Louisiana Code of Civil Procedure Article 561 (emphasis added) provides, in | ¡¡pertinent part, as follows:

A.(1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or
(c) In which a testament has been probated.
(3)This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment. The sheriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292.
(4) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).
(5) An appeal of an order of dismissal may be taken only within sixty days of the date of the sheriffs service of the order of dismissal. An appeal of an order of denial may be taken only within sixty days of the date of the clerk’s mailing of the order of denial.
B. Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.
C. An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court.

Ace contends that “[i]t is beyond dispute that this case was abandoned because no step in the prosecution or defense of this action was timely taken for over three (3) 14years.” Specifically, it argues that “[t]he last step sufficient to interrupt abandonment of this action was taken on March 15, 2007, when discovery was forwarded to DOTD by OHH.”

To the contrary, DOTD asserts that the instant matter was not abandoned since “a step in the prosecution or defense of this action was taken on April 24, 2007, when counsel for [OHH] scheduled a discovery conference pursuant to [Louisiana District Court Rules,] Rule 10.1, and notified all parties, including counsel for Ace[.]” Alternatively, DOTD argues that its discovery responses sent to OHH on May 10, 2007, constituted a “step” sufficient to preclude abandonment of the action. We disagree.

We will first address the DOTD’s discovery responses of May 10, 2007, relative to assignments of error numbers two and three. We note that DOTD states in brief that it “inadvertently failed to send a copy of its formal responses to counsel for the remaining [Defendants.” Conceding the fact that “it is ... clear that the responses were not sent to all parties!,]” DOTD frames the relevant inquiry as whether “the failure to send a copy of formal discovery to the remaining [Defendants, act[s] as a fatal flaw to the viability of the action[.]”

The language of La.Code Civ.P. art. 561(B) provides that “[a]ny formal discovery ... served on all parties ... shall be deemed to be a step in the prosecution or defense of an action.” In this case, the discovery responses of May 10, 2007, admittedly were not served on all parties. Although DOTD characterizes the trial court as “adhering to a strict and rigid interpretation” of La.Code Civ.P. art. 561, the express requirements of the article itself and the jurisprudence interpreting same mandate the conclusion that the discovery responses were not sufficient to interrupt ^abandonment given the lack of service on all parties. See Stillman v. Bd. of Supervisors of S. Univ. and Agric. and Mech. Coll., 07-2107 (La.App. 1 Cir. 6/6/08), 992 So.2d 523; Paternostro v. Falgoust, 03-2214 (La.App. 1 Cir. 9/17/04), 897 So.2d 19, writ denied, 04-2524 (La.12/17/04), 888 So.2d 870; Benjamin-Jenkins v. Lawson, 00-958 (La.App. 4 Cir. 3/7/01), 781 So.2d 893, writ denied, 01-1546 (La.9/14/01), 796 So.2d 681; and Brister v. Manville Forest Prods., 32, 386 (La.App. 2 Cir. 12/15/99), 749 So.2d 881. We, therefore, find no merit to assignments of error numbers two and three.

In its first assignment of error, DOTD argues that the trial court erred in finding that its scheduling of a discovery conference in accordance with Louisiana District Court Rules, Rule 10.1 (Rule 10.1 conference), did not constitute a “step” in the prosecution of the action sufficient to interrupt the period for abandonment. We disagree.

DOTD failed to timely respond to the discovery propounded by OHH on March 15, 2007. Thus, on April 24, 2007, the attorney for OHH forwarded correspondence to the attorney for DOTD advising that the responses were delinquent and that, pursuant to Rule 10.1, he would be contacting him on a given date and time “to conduct the necessary discovery conference!.]” DOTD argues that because of the mandatory language of the rule, “the scheduling of a discovery conference pursuant to Rule 10.1 is necessarily a prerequisite for filing a motion to compel discovery!.]” DOTD concludes, therefore, that the April 24, 2007 letter scheduling a Rule 10.1 conference was “necessarily a ‘step’ in the prosecution or defense of an action.”

“‘[E]xtrajudicial efforts,’ such as informal discussions and correspondence between the parties, have uniformly been considered insufficient to constitute a step |fifor purposes of interrupting or waiving abandonment.” Jackson, 4 So.3d at 844 (quoting Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 16 (La.5/15/01), 785 So.2d 779, 790); See also Naccari v. Namer, 01-2410 (La.App. 4 Cir. 2/6/02), 809 So.2d 1157. In the instant matter, the April 24, 2007 letter is correspondence between the parties. While it was sent for purposes of complying with the rules of the district court, it is still tantamount to the employment of “extrajudicial efforts” at resolving outstanding discovery issues. The correspondence is not “formal discovery” under La.Code Civ.P. art. 561, and it is insufficient to constitute a “step” in the prosecution of the action. Therefore, this assignment of error is likewise without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court denying The Louisiana Department of Transportation and Development’s Motion to Vacate and Set Aside Order of Dismissal. We assess all costs of this appeal to The Louisiana Department of Transportation and Development and set the amount of those costs at $936.42, as required by La.R.S. 13:5112.

AFFIRMED.

SAUNDERS, J., dissents with reasons.

SAUNDERS, Judge,

dissents.

hi feel that we should reverse the trial court. It is well established that La.Code Civ.P. art. 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Rosier v. Benoit, 09-1557 (La.App. 3 Cir. 5/5/10), 37 So.3d 1093. Here, I feel that the majority opinion is taking an approach that is too rigid with regard to the DOTD’s discovery responses, and that OHH’s letter can be construed as a “step” under La. Code Civ.P. art. 561.

The purpose behind La.Civ.Code art. 561 is to prevent the lingering of suits for a protracted time so as to vex or harass a defendant, not to dismiss suits whose plaintiffs have no intention of abandoning them based on a mere technicality. La. Dept. of Transp. and Dev. v. Bayou Fleet, Inc., 09-1569 (La.App. 1 Cir. 4/28/10), 37 So.3d 1066, writ granted, 10-1215 (La.7/2/10), 39 So.3d 585, writ denied, 10-1003 (La.7/2/10), 39 So.3d 587. The dismissal the DOTD’s entire action due to its inadvertent failure to serve each and every party with discovery responses is exactly in opposition to the purpose of La.Code Civ.P. art. 561 stated above. Clearly the DOTD did not intend to abandon the suit, nor did it let this suit linger in order to vex or harass any of the defendants.

|2In my view, the discovery responses, alone, should warrant reversing the trial court. However, I also feel that the letter sent by OHH can be construed as “any step in [a suit’s] prosecution or defense.” La.Code Civ.P. art. 561. A “step” is when an action taken by a party is intended to hasten a suit toward judgment. Brown v. Sutherland Lumber, Inc., 10-469 (La.App. 3 Cir. 11/3/2010), 53 So.3d 477. Here, the letter by OHH not only intended to hasten the suit forward, it actually did hasten the suit forward, as DOTD answered the outstanding discovery albeit technically insufficient to interrupt abandonment according to the majority opinion. Affirmation of this case results in a situation where DOTD would likely have been in a stronger position relative to abandonment had it merely ignored OHH’s letter and not answered the discovery. Then, more likely than not, OHH would have filed a motion to compel the answer of that discovery, thus interrupting abandonment.

Moreover, I agree with DOTD’s position that the letter is a “step” due to the mandatory language of Rule 10.1. This letter was a necessary prerequisite for filing a motion to compel that clearly is a “step” under La.Code Civ.P. art. 561. Accordingly, I respectfully dissent.

      . Louisiana District Court Rules, Rule 10.1 (emphasis added), prior to its 2009 amendment, provided as follows:
      Before filing any discovery motion, the moving party must attempt to arrange a conference with the opposing party for the purpose of amicably resolving the discovery dispute. The conference may be conducted in person or by telephone. The discovery motion must include a certificate stating:
      (a) that the parties have conferred in person or by telephone as required by this rule and the reasons why they were unable to agree; or
      (b) that opposing counsel has refused to confer after reasonable notice.
      If the court finds that opposing counsel has willfully failed to confer, or failed to confer in good faith, the court may impose sanctions.


author: PAINTER, Judge. GENOVESE, J.,

text:
    R. Alan KITE v. Jeffrey D. KITE and Transamerica Occidental Life Insurance Company.
    No. 10-1442.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Phillip W. DeVilbiss, Scofield, Gerard, Singletary & Pohorelsky, Charles, LA, for Defendant/Appellee, Jeffrey D. Kite.

      Richard E. McCormack, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Appellee, Transamerica Occidental Life Insurance Company.
    Kenneth Michael Wright, Lake Charles, LA, for Plaintiff/Appellant, R. Alan Kite.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| plaintiff, R. Alan Kite (Alan), filed this suit to partition a life insurance policy issued by Transamerica Occidental Life Insurance Company (Transamerica) that he co-owned with his brother, Jeffrey D. Kite (Jeffrey). The trial court granted Jeffrey’s exception of no cause of action and dismissed Alan’s petition with prejudice. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On December 22, 1987, Transamerica Occidental Life Insurance Company issued a universal life insurance policy to Robert J. Kite. The face value of the policy is $250,000.00. Robert is the father of both Plaintiff, Alan, and Defendant, Jeffrey. When Robert divorced Peggy Kite, the mother of Alan and Jeffrey, he was ordered to continue the policy in full force and effect, and Peggy was designated as the owner and beneficiary of the policy. Sometime thereafter, Alan and Jeffrey were designated as the owners and beneficiaries of the policy. Since it is a universal life insurance policy, like a whole life policy, it now has a significant cash value.

The brothers apparently reached a point of disagreement, and Alan filed a petition to partition which stated that he no longer wished to be a co-owner of the policy with Jeffrey. Alan sought a partition in kind or, in the alternative, if the policy could not be partitioned in kind without a diminution in value, a termination of the policy with a division of the value between the co-owners. In response to the petition, Jeffrey filed numerous exceptions including ambiguity, no right of action, no cause of action for partition, no cause of action for attorney’s fees, failure to join an indispensable party (Robert), improper venue, and lis pendens. The trial court granted the exception of no cause of action, dismissed the petition with prejudice, and denied leave to amend the petition. In his oral reasons for ruling, the trial court stated that “the total provisions for the partition of property do not apply to a life insurance policy.” The other exceptions were not ruled upon. This appeal followed.

J^DISCUSSION

In Fink v. Bryant, 01-0987, pp. 3-4 (La.11/28/01), 801 So.2d 346, 348-49 (citations omitted), our supreme court stated:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.

In Dauzart v. Financial Indemnity Insurance Co., 10-28, p. 4 (La.App. 3 Cir. 6/2/10), 39 So.3d 802, 805, we noted:

With regard to the granting of the exception of no cause of action, in articulating the standard of review which governs our consideration of this, the supreme court explained: “the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition.” Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349.

Defendants, Jeffrey and Transamerica, argue that Louisiana law simply does not allow for the partition of a life insurance policy, which is sui generis and governed by a specialized body of law and public policies. They base their argument on La. R.S. 22:912(E) which provides that “[n]o person shall be compelled to exercise any rights, powers, options, or privileges under [a life insurance] policy ...” Alan, on the other hand, argues that alleging co-ownership and requesting a partition clearly states a cause of action and that La.Civ. Code art. 807 provides that “[n]o one may be compelled to hold a thing in indivisión with another unless the contrary has been provided by law or juridical act” and further that “[a]ny co-owner has a right to demand partition of a thing held in indivi-sión.”

The issue is whether a life insurance policy is property subject to partition. We find nothing in the insurance code preventing such an action. Jeffrey and Trans-america argue that: “any forced partition would compel the owner to cash in the policy against his will, a partition in kind would require an insurer to enter into |3contracts it never bargained for, and a partition by licitation would violate public policy by allowing strangers to bid on the right to get paid when the insured dies.”

The insurance policy is attached to and made a part of the petition in the present case. Therefore, it is proper for us to consider the policy provisions in our determination as to whether a cause of action exists. The insurance policy at issue herein contains a partial surrender provision. There is nothing to prevent Alan from surrendering his fifty percent ownership in the policy and receiving half of the accumulated value, leaving the balance for Jeffrey. The policy provides that there is no surrender penalty after fifteen policy years, and we note that policy has been in effect well over fifteen years. This would not force Jeffrey to take any action and, therefore, would not violate La. R.S. 22:912(E).

We therefore reverse the trial court’s grant of the exception of no cause action. We make no determination as to the validity of the other exceptions raised by Jeffrey as those are not before us on this appeal.

DECREE

For all of the foregoing reasons, we reverse the trial court’s grant of Jeffrey D. Kite’s exception of no cause of action and remand the matter for further proceedings consistent with this opinion. All costs of the appeal are assessed to Defendant/Ap-pellee, Jeffrey D. Kite.

REVERSED AND REMANDED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissenting.

|4This matter presents the legal issue of whether there exists a cause of action for a co-owner of a life insurance policy to partition the policy. The trial court reasoned that “the total provisions for the partition of property do not apply to a life insurance policy” and granted the exception of no cause of action. The majority disagrees, reverses, and remands the matter for further proceedings. I must respectfully disagree.

Life insurance policies are sui generis; thus, they are governed by the particular provisions of the Louisiana Insurance Code as opposed to the general provisions of the Louisiana Civil Code. Fowler v. Fowler, 03-590 (La.12/12/03), 861 So.2d 181; Talbot v. Talbot, 03-814 (La.12/12/03), 864 So.2d 590. The majority opines that it “find[s] nothing in the insurance code preventing such an action” for partition. However, in my view, La.R.S. 22:912(E), which provides that “[n]o person shall be compelled to exercise any rights, powers, options, or privileges under any [life insurance] policy” precludes an action for partition of an insurance policy. I would, therefore, affirm the trial court’s grant of the exception of no cause of action. For this reason, I respectfully disagree with the majority opinion and dissent therefrom.


author: GREMILLION, Judge.

text:
    STATE in the Interest of S.J.H. v. M.S.H. and J.W.
    No. 10-1380.
    Court of Appeal of Louisiana, Third Circuit.
    April 6, 2011.
    Donald Wilson, Gaharan & Wilson, Jena, LA, for Appellee S.J.H.
    Guy Richard Lain, Attorney at Law, Ferriday, LA, for Appellee Louisiana Department of Social Services.
    Paul A. Lemke, Attorney at Law, Harri-sonburg, LA, for Appellee J.W.
    Krystal L. Todd, Attorney at Law, Jena, LA, for Appellant M.S.H.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe Defendant/Appellant, M.S.H., appeals the judgment of the trial court denying her motion for new trial as being untimely. For the following reasons, we grant the State’s peremptory exception of prescription and dismiss M.S.H.’s appeal as untimely.

FACTUAL AND PROCEDURAL BACKGROUND

M.S.H.’s parental rights were terminated by the trial court following a March 4, 2010 hearing. The judgment terminating her rights was filed into the record on March 9, 2010. M.S.H. filed a motion for new trial on July 15, 2010. That same day she filed a petition to annul judgment arguing that one of the main reasons for the termination — her incarceration — no longer existed as this court had reversed her conviction and vacated her sentence. Following an August 12, 2010 hearing on the motions, the trial court found that the motion for new trial was untimely and that the requirements to annul the judgment were not proven by M.S.H., and therefore, the petition to annul the judgment was denied and dismissed with prejudice. That judgment was filed into the record on August 19, 2010. The Notice of Judgment indicates that M.S.H.’s attorney was mailed a copy of the judgment on August 19, 2010.

On September 10, 2010, M.S.H. filed a motion for appeal and designation of record. On December 3, 2010, the State filed a Peremptory Exception of Lack of Jurisdiction. On December 20, 2010 the State filed its brief. M.S.H. filed her brief on January 5, 2010 in which she assigned only one error: the trial court’s finding that the motion for new trial was untimely because the notice of judgment was |2not mailed.

DISCUSSION

Louisiana Children’s Code article 332 states (emphasis added):

A. Except as otherwise provided within a particular Title of this Code, appeals shall be taken within fifteen days from the mailing of notice of the judgment. However, if a timely application for a new trial is made pursuant to Paragraph C, the delay for appeal commences to run from the date of the mailing of notice of denial of the new trial motion.
B. Notice of judgment, including notice of orders or judgments taken under advisement, shall be as provided in Code of Civil Procedure Article 1913.
C.After judgment is signed, a party make a written request for a motion for new trial on any ground provided by law. The delay for applying for a new trial is three days, exclusive of holidays, and shall commence to run from the mailing of notice of judgment. A motion for new trial shall be decided expeditiously and within seven days from the date of submission for decision.

Louisiana Civil Code Article 1913(A) provides:

Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.

PEREMPTORY EXCEPTION OF LACK OF JURISDICTION

M.S.H.’s appeal to this court was untimely. She had fifteen days from notice of mailing of judgment on August 19, 2010. Accordingly, she had until September 3, 2010, to timely file her appeal to this court. Thus, her September 10, 2010 appeal is untimely, and the State’s exception of lack of jurisdiction is granted.

LThe timeliness of an appeal is a jurisdictional matter, and we cannot extend the delays in which to seek an appeal. Seaman v. Seaman, 10-1295 (La.App. 3 Cir. 12/15/10), 54 So.3d 756; State in the Interest of E.A., 02-996 (La.App. 3 Cir. 10/2/02), 827 So.2d 594; In re Lagarde, Jr., 358 So.2d 983 (La.App. 4 Cir.1978). The trial court’s judgment is final, and M.S.H.’s appeal is dismissed. The costs of this appeal are taxed against M.S.H.

APPEAL DISMISSED.

      . In accordance with Uniform Rules-Courts of Appeal, Rule 5-1, we use initials throughout to protect the identity of the minor.

      . Although the assignment of error discusses the motion for new trial as being timely, M.S.H.’s brief argues that the time had not begun to run on the filing of an appeal as the judgment of termination of parental rights was not mailed in accordance with La.Code Civ.P. art. 1913(B). Although we need not address this issue, we note that M.S.H. was personally served via her attorney with notice of the judgment terminating her parental rights. We also note that the underlying substantive issues were adjudicated by the trial court and the termination upheld.