author: PAINTER, Judge. AMY, J., GENOVESE, J.,

text:
    John Haas WEINSTEIN v. Linda Allen WEINSTEIN.
    No. 10-1083.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.
    Rehearing Denied May 18, 2011.

      Christine M. Mire, Lafayette, LA, for Defendant/Appellant, Linda Allen Wein-stein.
    David L. Carriere, Opelousas, LA, for PlaintiffiAppellee, John Haas Weinstein.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| ¶ Defendant, Linda Allen Weinstein, appeals the trial court’s judgment regarding the existence of a community regime between her and her former husband, John Haas Weinstein, and the amount of child support to be paid for their minor child. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

John and Linda were married on August 8,1986. On August 7,1986, the day before the wedding, they signed a separation of property agreement. Two children were born of the marriage, only one of whom was a minor at the time of the ruling from the child support hearing appealed herein. On August 7, 1997, they filed a joint petition to affirm an agreement establishing a community property regime. On that same day, an order was signed recognizing the agreement establishing a community property regime. They separated in March 2004, and a judgment of divorce was signed on April 1, 2005.

On January 21, 2010, after a lengthy hearing, the trial court rendered a partial final judgment finding that the prenuptial agreement was effective in creating a separation of property regime between the parties. The judgment also granted a motion for involuntary dismissal as to the claims that the trial court order established a community regime in August 1997. Linda appeals.

DISCUSSION

Involuntary Dismissal

After the hearing on the matrimonial regime, counsel for John moved orally for involuntary dismissal. The trial court denied the motion and asked for memoranda from the parties before his final ruling. John filed a motion for new trial or to | ¡reconsider the motion for involuntary dismissal which the trial court granted. Linda asserts that this was error on the part of the trial court.

Linda argues that the trial court’s action violates La.Code Civ.P. art. 1672 which provides for involuntary dismissal. This article provides, in pertinent part, as follows:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

We find no authority which suggests that a trial court may not reconsider its denial of the motion prior to the presentation of the defendant’s case. Therefore, we find that the motion was timely filed and that no procedural bar existed to prevent the court from considering it.

Prenuptial Agreement

Linda next asserts that the trial court erred in finding the prenuptial agreement to be valid and in granting the motion for involuntary dismissal in that regard. She argues that she signed the contract as a result of fraud on the part of John and that John was in violation of the rules of professional conduct in that he was her lawyer at the time they entered into the contract and was prohibited from contracting with her where they had differing interests in the contract.

Consent, which is necessary for the formation of a valid contract, may be vitiated by error, fraud, or duress. La. C.C. art. 1948. In order to establish that a party’s consent to a contract has been vitiated due to error, the error must concern a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949. Cause is defined as the reason why a party obligates himself. La. C.C. art. 1967.
IsError may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.
La. C.C. art. 1950. However, in order to establish that a party’s consent has been vitiated due to fraud, the error need not concern the cause of the obligation, but it must concern a circumstance that has substantially influenced the party’s consent. La. C.C. art. 1955.

Greenland v. Greenland, 08-2568, pp. 4-5 (La.App. 1 Cir. 12/9/09), 29 So.3d 647, 651, writ denied, 10-0004 (La.3/5/10), 28 So.3d 1011.

Louisiana Civil Code Article 1953 defines fraud as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.” Further, “[fjraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence.” La. Civ.Code art. 1957. See Alvis v. CIT Group/Equip. Fin., Inc., 05-0563 (La.App. 3 Cir. 12/30/05), 918 So.2d 1177, writ denied, 06-0226 (La.4/24/06), 926 So.2d 552. In support of her allegations of fraud, Linda introduced into evidence a diary entry by John written approximately ten years after his marriage in which he examined his feelings about his marriage and ways in which he felt he could or could have improved his relationship with his wife and his failures in so doing. The trial court did not feel that this document was evidence of fraud, and we cannot say that it rises to the level of indicating “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other” at the time the marriage agreement was entered.

Linda further asserts that John violated the rules of professional conduct by entering into a marriage contract with her while he was acting as her attorney. As 14John notes, there is no positive law prohibiting an attorney from entering a prenuptial agreement with a client. However, John argues that his representation of her in connection with her prior divorce did not encompass representation as to the prenuptial contract. We agree that to assert a conflict in this regard, Linda had the burden of showing that John’s representation extended to the prenuptial contract.

The relationship between an attorney and his client is purely contractual in nature and results only from a clear and express agreement between the parties. Keller v. LeBlanc, 368 So.2d 193 (La. App. 1 Cir.1979). Establishment of an attorney-client relationship is adequately proven when it is shown that the advice and assistance are sought and received in matters pertinent to his profession or when the agreement of representation has been made under conditions acceptable to both parties. State v. Green, 493 So.2d 1178 (La.1986); Lirette v. Roe, 93-0441 (La.App. 4 Cir. 1/13/94) 631 So.2d 503.

Spicer v. Gambel, 00-1995 (La.App. 4 Cir. 6/20/01), 789 So.2d 741, 744.

While it is well established that the existence of an attorney-client relationship depends to a great degree on the client’s subjective belief that it exists, the belief must be reasonable. St. Paul Fire and Marine Ins. Co. v. GAB Robins N. Am., Inc., 08-331 (La.App. 4 Cir. 11/19/08), 999 So.2d 72. Additionally, “[ajgreement of an attorney to represent a client as to a particular matter does not create an agency relationship as regards other business affairs of the client.” Massey v. Cunningham, 420 So.2d 1036, 1038 (La.App. 5 Cir. 1982), quoting Tullier v. Tanson Enterprises, Inc., 359 So.2d 654 (La.App. 1st Cir.1978).

It is uncontested that John, as well as several other attorneys, represented Linda in connection with a prior divorce. However, our examination of the record does not reveal enough proof to show that the scope of that representation extended to the prenuptial agreement. The record does not contain any testimony from Linda as to |fiher subjective belief in this regard, nor did she introduce a contract evidencing an attorney-client relationship in connection with the prenuptial agreement.

Additionally, the record shows that Linda received advice to seek separate legal representation with regard to the prenuptial agreement and chose not to follow that advice. Counsel for Linda called Anthony Fazzio, an attorney practicing in Lafayette, Louisiana, to testify at the hearing on the marital regime. In response to questioning by counsel for Linda, Fazzio testified as follows: John was a friend since law school, and he had occasionally been co-counsel on cases with John. He enrolled as counsel on Linda’s prior divorce at John’s request. John and Linda showed up at his office without an appointment, and Linda asked to speak to him in private and told him that John wanted her to sign a prenuptial agreement. He asked her if she understood that he was a friend of John’s. He further instructed her that she should get someone to read the document and prepare it from her point of view. He told her that while it would protect her if anyone sued John, it would also keep her from sharing in his successes, and she responded by saying that she was not interested in John’s money. A short time later, John and Linda came back, and the agreement was signed and notarized in front of witnesses.

In light of the evidence of record, we find no error in the trial court’s ruling with regard to the validity of the prenuptial agreement and in granting the motion for involuntary dismissal in that regard.

Attorney-Client Privilege

Linda next asserts that the trial court erred in finding that there was no attorney-client privilege between Linda and attorneys Shepton Hunter, John Haas Weinstein, Anthony Fazzio, and David L. Carriere as to the prenuptial agreement. [ ^However, we find no error in this finding. We have already found that Linda failed to carry her burden of showing that John was acting as her legal representative in connection with the prenuptial agreement. Further, there is no evidence that David Carriere ever acted as Linda’s legal representative. With regard to the attorney-client privilege, if any, arising out of an attorney-client relationship between Linda and either Fazzio or Hunter, we find that Linda waived any such privilege by calling them as witnesses and questioning them concerning potentially privileged matters. La.Code. Evid. art. 502 provides that the holder of a privilege may waive it by disclosing the privileged information or by consenting to its disclosure. Linda consented to the disclosure of any information testified to by Fazzio and Hunter at her behest.

Establishment of Community Regime

Linda next asserts that the trial court erred in finding that the August 7, 1997 order establishing a community property regime between her and John was invalid and in granting the motion for involuntary dismissal in that regard.

Louisiana Civil Code Article 2329 provides that parties may “subject themselves to the legal regime by a matrimonial agreement at any time without court approval.” The agreement must be in authentic form or in the form of an act under private signature duly acknowledged by the parties. La.Civ.Code art. 2331. “An act under private signature is regarded prima facie as the true and genuine act of a party executing it when his signature has been acknowledged, and the act shall be admitted in evidence without further proof.” La.Civ.Code art. 1836.

An act under private signature may be acknowledged by a party to that act by recognizing the signature as his own before a court, or before a notary public, or other officer authorized to perform that function, in the presence of two witnesses. An act under private 17signature may be acknowledged also in any other manner authorized by law. Nevertheless, an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.

La.Civ.Code art. 1839. Thus the law does not require that an agreement establishing a community property regime be authorized by a judge, nor does it prohibit its being approved by or acknowledged in front of a judge.

In this case, John and Linda signed an agreement establishing a community property regime on May 15, 1997, and filed an action to have the court recognize the agreement on August 7, 1997. The agreement was approved on that date by Judge Alonzo Harris of the Twenty-Seventh Judicial District Court for the Parish of St. Landry in the proceeding entitled “In the Matter of John Haas Weinstein and Linda Allen Weinstein,” Docket No. 97-C-8000-B of that court.

The agreement was confected at John’s instigation by Attorney Shepton Hunter who was not, by his own admission, familiar with the law concerning marital regimes. The agreement, signed by John and Linda and one witness, was attached to a “Joint Petition to Affirm Agreement Establishing Legal Regime.” That petition, also signed by John and Linda, was filed in the district court. Judge Harris signed an order recognizing their agreement and ordered that a community regime be established between the parties. We note that John does not dispute that he intended to establish a community regime by signing this agreement.

The trial court did not reach the issue of whether the agreement underlying the court’s order was effective, finding only that the court’s order did not establish a community regime and noting that further evidence would be required as to the ^effectiveness of the agreement. For that reason, the trial court granted the motion for involuntary dismissal as to Judge Harris’ order.

After reviewing that petition and the trial court’s order, we find the order to be in the nature of a consent judgment, as it is a bilateral contract embodying the mutual consent of the parties.

A consent judgment is a determination of the rights of the parties and acquires the authority of the thing adjudged. McLain v. McLain, 486 So.2d 1044 (La. App. 2d Cir.1986); Townsend v. Townsend, 421 So.2d 969 (La.App. 3d Cir. 1982), writ denied, 427 So.2d 1211 (La. 1983). The thing adjudged is said of that which has been decided by final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been affirmed on appeal. La.C.C. art. 3556(31); McLain, 486 So.2d at 1046.

Thibodeaux v. Thibodeaux, 511 So.2d 102, 105 (La.App. 3 Cir.1987).

The methods by which a final judgment may be attacked are well delineated:

The law sets forth the various methods whereby a judgment may be attacked. A party may sue to have the judgment declared a nullity for vices in either form or substance. LSA-C.C.P. art. 2001 et seq.; Cheramie v. Vegas, 468 So.2d at 813. For example, under LSA-C.C.P. art. 2002, a final judgment may be annulled if it is rendered against an incompetent person not properly served with process, against a defendant not served with process and who has not entered a general appearance, or by a court which does not have subject matter jurisdiction of the litigation. Cheramie v. Vegas, 468 So.2d at 813; Sharp v. Brown, 464 So.2d 12, 14 (La.App. 1st Cir.1984), writ denied, 467 So.2d 537 (La.1985). Also, a final judgment can be annulled if obtained through fraud or ill practices. LSA-C.C.P. art. 2004; Homer National Bank v. Nix, 566 So.2d 1071, 1075 (La.App. 2nd Cir.), unit denied, 569 So.2d 985 (La.1990); Sharp v. Brown, 464 So.2d at 15. However, absent an attack via one of the well-delineated methods of attacking a final judgment, the judgment maintains the effect of the law between the parties. See Bonaventure v. Pourciau, 577 So.2d 742 (La.App. 1st Cir.1991).

Preston Oil Co. v. Transcon. Gas Pipe Line Corp., 594 So.2d 908, 913-14 (La.App. 1 Cir.1991).

| ¡/Therefore, in the absence of evidence that the court’s order recognizing the marital agreement entered by the parties has been annulled pursuant to an appropriate attack, we find that the trial court erred in granting the motion for involuntary dismissal in this regard.

Retroactivity of the Child Support Order

Linda next asserts that the trial court erred in not making the child support order retroactive to the petition for divorce which John filed in 2005.

Louisiana Revised Statutes 9:315.21 provides, in pertinent part, as follows:

A. Except for good cause shown, a judgment awarding, modifying, or revoking an interim child support allowance shall be retroactive to the date.of judicial demand, but in no case prior to the date of judicial demand.
B. (1) A judgment that initially awards or denies final child support is effective as of the date the judgment is signed and terminates an interim child support allowance as of that date.
(2) If an interim child support allowance award is not in effect on the date of the judgment awarding final child support, the judgment shall be retroactive to the date of judicial demand, except for good cause shown, but in no case prior to the date of judicial demand.
C. Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.
D. Child support of any kind, except that paid pursuant to an interim child support allowance award, provided by the judgment debtor from the date of judicial demand to the date the support judgment is signed, to or on behalf of the child for whom support is ordered, shall be credited to the judgment debtor against the amount of the judgment.
E. In the event that the court finds good cause for not making the award retroactive to the date of judicial demand, the court may fix the date on which the award shall commence, but in no case shall this date be a date prior to the date of judicial demand.

Although John’s petition for divorce contained a prayer that the court set the child support obligation, no motion to set child support was made until Linda filed |10a motion to have it set in May 2009. The trial court found that the original demand was abandoned. Linda argues that John made a judicial admission in a Lafayette Parish proceeding for child support that the issue of child support was pending in St. Landry Parish.

After reviewing the record and the court’s extensive written reasons for judgment, we find that the trial court had good cause for failing to make the award retroactive. The trial court notes the extensive delays in asking for determination of the child support obligation and the fact that the parties amicably determined the amount and payment of child support until their older child turned eighteen, graduated from high school, and left Linda’s residence, and John cut the amount of his voluntary payments.

The trial court is vested with much discretion in fixing awards of child support. The court’s reasonable determinations shall not be disturbed unless there is a clear abuse of discretion. State, Department of Social Services ex rel. C.J.V. v. Neathery, supra; Curtis v. Curtis, supra; Cory v. Cory, 34,053 (La.App.2d Cir.11/1/00), 771 So.2d 225.

Harrington v. Harrington, 43,373 (La. App. 2 Cir. 8/13/08), 989 So.2d 838, 844. Finding no abuse of discretion, we will not disturb the trial court’s determination in this regard.

Amount of Child Support

Finally, Linda argues that the trial court erred in failing to award child support consistent with the lifestyle the minor child enjoyed prior to the divorce. Linda cites Falterman v. Falterman, 97-192 (La.App. 3 Cir. 10/8/97), 702 So.2d 781, in support of her argument. The court in that case stated that:

La.R.S. 9:315.10(B) provides that, where the parties’ monthly combined adjusted gross income exceeds $10,000.00, “the court shall use its discretion in setting the amount of the basic child support obligation, but in no event shall it be less than the highest amount set |nforth in the schedule.” And, attached to this statutorily guaranteed discretion, the trial court’s judgment in such matters will not be disturbed in the absence of a showing of an abuse of discretion. Krampe v. Krampe, 625 So.2d 383 (La. App. 3 Cir.1993), writ denied, 93-2763 (La.1/7/94); 630 So.2d 781. Furthermore, when setting the amount of child support to be paid by a parent, the court strives to maintain the lifestyle of the child, when possible, while considering the child’s reasonably proven expenses and the parent’s ability to provide. See Montet v. Montet, 629 So.2d 538 (La. App. 3 Cir.1993); Krampe, 625 So.2d 383 (Domengeaux, C.J., concurring); Hargett v. Hargett, 544 So.2d 705 (La. App. 3 Cir.), writ denied, 548 So.2d 1235 (La.1989).
The jurisprudence in our state consistently has recognized that there is “no universal mathematical formula” for calculating the amount of child support to be paid where the parties’ combined adjusted income exceeds the child support guidelines contained in La.R.S. 9:315,14. Serrate v. Serrate, 96-1545, p. 7 (La. App. 1 Cir. 12/20/96); 684 So.2d 1128, 1133. However, this court has held that simple extrapolation of the guidelines, without considering the child’s needs, is not an acceptable method. Preis v. Preis, 93-569 (La.App. 3 Cir. 2/2/94); 631 So.2d 1349 (rejecting Aguilar v. Wilson, 613 So.2d 228 (La.App. 1 Cir.1992), writ denied, 614 So.2d 66 (La.1993)). In Preis, this court stated:
The support for a child or children of a more affluent lifestyle, as in this case, is a concern for the courts to address on a case by case method. We find by simply extrapolating from the guidelines without concern and discretion by the court in balancing the needs and lifestyle of the child or children, could lead to excessive child support awards.
Id. at p. 12; 631 So.2d at 1356. A trial court must consider the totality of circumstances present in each case and formulate an award of child support accordingly. Rosenbloom v. Rosenbloom, 94-1762 (La.App. 4 Cir. 4/26/95); 654 So.2d 877, writ denied, 95-1320 (La.9/1/95); 658 So.2d 1266. While this court has recognized that some eviden-tiary proof of the children’s needs is necessary, a trial court is not limited to an award of that amount. See Hector v. Raymond, 96-972 (La.App. 3 Cir. 4/2/97); 692 So.2d 1284, writ denied, 97-1134 (La.6/13/97); 695 So.2d 978; Preis, 93-569; 631 So.2d 1349.

Id. at 783.

After reviewing the trial court’s extensive consideration of this issue, we find no abuse of discretion in his award of child support. It was uncontested that John’s monthly adjusted gross income alone is well beyond $10,000.00. The court | ^thoroughly considered the needs of the child as well as the lifestyle to which she was accustomed. He took into account the expenses involved in maintaining that lifestyle, the activities she was accustomed to pursuing, and the ability of her parents to provide. The trial court considered the totality of the circumstances and set his award on that basis. Accordingly, we find no error in the award made.

CONCLUSION

For these reasons, the judgment of the trial court is reversed insofar as it grants the motion for involuntary dismissal as to the trial court order recognizing the establishment of a community regime between the parties. In all other respects the judgment is affirmed.

Costs of this appeal are assessed half to John Haas Weinstein and half to Linda Allen Weinstein.

AFFIRMED IN PART AND REVERSED IN PART.

AMY, J., concurs in part, dissents in part, and assigns reasons.

GENOVESE, J., dissents in part, and assigns written reasons.

AMY, J.,

concurring in part, dissenting in part.

hi respectfully dissent from that portion of the majority opinion reversing the trial court’s determination that the August 7, 1997 order purportedly establishing a community property regime was invalid. It is clear that the parties failed to satisfy the requirements necessary to create a matrimonial agreement pursuant to La.Civ.Code art. 2331. In my opinion, the deficient attempt to create a community property regime was a nullity. Therefore, I would affirm the trial court’s decision in this regard.

In all other aspects of the opinion, I concur in the majority’s decision.

GENOVESE, J.,

dissents in part and assigns the following reasons.

hThe trial court found that the August 7, 1997 order establishing a community property regime between John and Linda Weinstein was invalid and granted John’s motion for involuntary dismissal. On appeal, the majority reverses the trial court’s grant of John’s motion for involuntary dismissal, finding “a bilateral contract embodying the mutual consent of the parties” thereby resulting in a “consent judgment.” I disagree.

Louisiana Civil Code Article 2331 states as follows: “A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” It is unrefuted that this statute (with its mandatory language) was not complied with. The alleged matrimonial agreement is invalid because it was only signed by one witness in contravention of La. Civ. Code art. 2331. There is nothing in the record evidencing a “consent judgment.” Any suggested “bilateral contract” is without merit because the legal requirements of the statute were not met.

Compliance with La.Civ.Code art. 2331 is mandatory and cannot be assumed. The trial court correctly granted the dismissal of Linda’s claim of a community property regime, finding that an attempted re-establishment of the community property regime was legally invalid as “it didn’t follow the formalities of law.” I fully |2agree with the trial court. To decide otherwise is to neuter La.Civ.Code art. 2331 and to render its requirements meaningless. I would affirm the trial court’s judgment in its entirety.


source: Caselaw Access Project

license: Public Domain

text:
    John Haas WEINSTEIN v. Linda Allen WEINSTEIN.
    No. 10-1084.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.
    Rehearing Denied May 18, 2011.

    Christine M. Mire, Lafayette, LA, for Defendant/Appellant, Linda Allen Wein-stein.
    David L. Carriere, Opelousas, LA, for Plaintiff/Appellee, John Haas Weinstein.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.

       AMY and GENOVESE, JJ., would grant rehearing.

   PAINTER, Judge.

| ,For the reasons set forth in the companion case hereto, Weinstein v. Weinstein, 10-1083 (La.App. 3 Cir. 4/13/11), 62 So.3d. 878, 2011 WL 1376167, this matter is reversed in part and affirmed in part.

REVERSED IN PART AND AFFIRMED IN PART.

AMY, J., concurs in part, dissents in part, and assigns reasons.

GENOVESE, J., dissents in part, and assigns written reasons.

AMY, J.,

concurring in part, dissenting in part.

|tI respectfully dissent from that portion of the majority opinion reversing the trial court’s determination that the August 7, 1997 order purportedly establishing a community property regime was invalid. It is clear that the parties failed to satisfy the requirements necessary to create a matrimonial agreement pursuant to La.Civ.Code art. 2331. In my opinion, |2the deficient attempt to create a community property regime was a nullity. Therefore, I would affirm the trial court’s decision in this regard.

In all other aspects of the opinion, I concur in the majority’s decision.

GENOVESE, J.,

dissents in part and assigns the following reasons.

|tThe trial court found that the August 7, 1997 order establishing a community property regime between John and Linda Weinstein was invalid and granted John’s motion for involuntary dismissal. On appeal, the majority reverses the trial court’s grant of John’s motion for involuntary dismissal, finding “a bilateral contract embodying the mutual consent of the parties” thereby resulting in a “consent judgment.” I disagree.

Louisiana Civil Code Article 2331 states as follows: “A matrimonial agreement may be executed by the spouses before or during marriage. It shall be made by authentic act or by an act under private signature duly acknowledged by the spouses.” It is unrefuted that this statute (with its mandatory language) was not complied with. The alleged matrimonial agreement is invalid because it was only signed by one witness in contravention of La.Civ.Code art. 2331. There is nothing in the record ^evidencing a “consent judgment.” Any suggested “bilateral contract” is without merit because the legal requirements of the statute were not met.

Compliance with La.Civ.Code art. 2331 is mandatory and cannot be assumed. The trial court correctly granted the dismissal of Linda’s claim of a community property regime, finding that an attempted re-establishment of the community property regime was legally invalid as “it didn’t follow the formalities of law.” I fully agree with the trial court. To decide otherwise is to neuter La.Civ.Code art. 2331 and to render its requirements meaningless. I would affirm the trial court’s judgment in its entirety.


author: GREMILLION, Judge. PAINTER, J.,

text:
    Robert E. CARMOUCHE v. KRAFT FOODS, INC.
    No. 10-401.
    Court of Appeal of Louisiana, Third Circuit.
    April 13, 2011.

      Kevin A. Marks, Jennifer L. Cooper, New Orleans, LA, for Defendant/Appellant, Kraft Foods, Inc.
    Robert Morías Schoenfeld, Stephen Michael Sehoenfeld, Morías Yoorhies Schoen-feld, New Orleans, LA, for Plaintiff/Appel-lee, Robert J. Carmouche.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DeCUIR, MARC T. AMY, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| defendant, Kraft Foods, Inc. (Kraft), appeals the judgment of the Worker’s Compensation Judge (WCJ) finding that it was not entitled to change its choice of vocational counselor. Kraft further appeals the judgment finding that Kraft was not entitled to reduce the benefits of plaintiff, Robert E. Carmouche, because substantial pain prevented him from working at the job Kraft’s vocational rehabilitation counselor found for him. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

It is undisputed that Carmouche. was injured while in the course and scope of his employment as a truck driver for Kraft. Kraft sent Carmouche to Dr. John Stafford who referred him to Dr. Thomas Ber-tuccini. Dr. Bertuccini performed a lami-nectomy with decompression of the nerve root and excision of the L5-S1 interverte-bral disc in June 2006. Carmouche was treated by Dr. Ted Gillespie, a pain management specialist, from October 2006 through the end of 2008. Carmouche was released to sedentary or light duty work in 2007.

Carmouche received vocational rehabilitation counseling from Jamie Primeaux, a licenced vocational rehabilitation counselor and employee of Coventry Health Care. In August 2007, Catalyst RTW located a job for Carmouche as a home-based telephone solicitor for All Facilities, Inc., that was to have paid $9.00 per hour and was a 40-hour-per-week position. Carmouche tried the job for three days, then quit. His testimony was that given the pain, his medicated state, and the antagonism of the targets of his phone calls, the job was too stressful. At that point, Kraft terminated | ¿vocational rehabilitation and reduced Carmouche’s benefits to Supplemental Earnings Benefits (SEBs) of $271.72 per week.

In October 2008, Carmouche filed a disputed claim for compensation. He continued treatment with Dr. Gillespie. At the end of 2008, Dr. Gillespie opined that Car-mouche would need scar injection four to six times a year for the duration of his lifetime.

On May 1, 2009, a hearing was held on Kraft’s request for a second medical opinion and its motion to compel vocational rehabilitation with a different counselor than previously chosen. The WCJ denied both the request for a second medical opinion and the motion to compel vocational rehabilitation. The WCJ further ordered an independent medical examination with a physician named by the OWC.

In July 2009, Carmouche underwent the ordered independent medical examination with Dr. Steve Rees. Dr. Rees opined that while Carmouche was at maximum medical improvement physically, he was not at maximum improvement for pain control. He also stated that further interventions would be required for Carmouche to reach maximum medical improvement with regard to pain. He further found that because Carmouche was depressed, any return to work needed to be in a low-stress environment.

The matter was tried in October 2009. The WCJ found in favor of Carmouche and ordered Kraft to pay full temporary total disability (TTD) benefits back to the date of termination but refused to award penalties and attorney’s fees. Kraft appeals.

| ¡ANALYSIS

Change of Vocational Rehabilitation Counselor

Kraft first asserts that the WCJ erred by finding that it could not change its choice of vocational rehabilitation counselor. The court disallowed a change of vocational rehabilitation counselor, explaining that:

And the reason for that is similar to the choice of physician statute. Just as you [sic] no one likes doctor shopping, nobody likes rehab shopping. And if you don’t like what the first rehab counselor says, you can’t just change and go to somebody else, [sic] So it has been my practice to require a showing of good cause before I will allow a change of selection.

The WCJ found that the employer did not make a showing of good cause for a change of vocational rehabilitation counsel- or and denied the motion.

The employment of the services of a vocational rehabilitation counselor, La. R.S. 23:1226(3)(a), provides that:

The employer shall be responsible for the selection of a licensed professional vocational rehabilitation counselor to evaluate and assist the employee in his job placement or vocational training. Should the employer refuse to provide these services, or a dispute arises concerning the work of the vocational counselor, the employee may file a claim with the office to review the need for such services or the quality of services being provided. The procedure for hearing such claims shall be expedited as provided in R.S. 23:1124.

We find no statute or jurisprudence that supports the conclusion that the employer may change its choice of a vocational rehabilitation counselor at will, and Kraft cites none. The statute makes the employer responsible for the choice of “a licensed profession vocational rehabilitation counselor.” (Emphasis added.) We find that the WCJ’s interpretation of this statute is both reasonable and correct. In order to change its choice of vocational rehabilitation counselor, the employer must show good cause. Therefore, the judgment of the WCJ in this regard is affirmed.

\ ¿Benefits Due

The analysis of this issue is difficult because Carmouche argues that he is entitled to TTD benefits based upon application of the substantial pain doctrine. Kraft argues that Carmouche is not entitled to TTD benefits because he did not prove application of the substantial pain doctrine by clear and convincing evidence, in that he failed to present objective medical evidence. The WCJ awarded TTD benefits based on Carmouche presenting clear and convincing evidence of his inability to work based upon substantial pain.

The WCJ discussed the medical testimony with regard to Carmouche’s ability to return to work, as follows (emphasis added):

However, in considering the testimony of Mr. Carmouche and the IME report of Dr. Rees, Dr. Rees does state that Mr. Carmouche is capable of returning to work from a 'physical standpoint. He does not make that same assessment with respect to a pain standpoint. In Dr. Rees’s opinion, Mr. Carmouche needs additional work before he has reached maximum medical improvement from a pain standpoint. But, in considering Dr. Rees’s report where he speaks to keeping Mr. Carmouche in a stress-free environment or as stress free as possible and combining that with Mr. Carmouche’s testimony of how he found the job to be stressful, and at this point, I do want to comment.
Mr. Schoenfeld makes some mention of a stress-free job, and I was going to say Mr. Schoenfeld, if you ever find one of those would you please let me know about it. I think any job is stressful, work is stressful even when you are doing something you love. I don’t think it is possible to find a completely stress free environment.
However, because of the unfamiliar nature of the work, and I’m sure even in his work with Kraft, Mr. Carmouche had to work with difficult clients. But given that it was a totally unfamiliar employment environment, considering the fact that he was in pain, I do make the finding combined with the medical evidence and particularly the comments of Dr. Rees, that he was in substantial pain which prevented him from performing this job.
That provision does require a clear and convincing burden of proof. I do find that the evidence is clear and convincing that Mr. Carmouche was in too much pain to perform that job in a less stressful ¡¿manner and in a fashion that would allow him to work a forty-hour-work week regardless of the flexibility of the hours. [Emphasis ours].

All these arguments miss the mark. Louisiana Revised Statute 23:1221(3)(c)(ii) makes it clear that the substantial pain doctrine is limited to cases involving an award of supplemental earnings benefits. An award of TTD benefits can only be predicated upon a finding that the employee is physically unable to perform any employment, including employment while working in any pain. La.R.S. 23:1221(l)(c). See Comeaux v. Sam Broussard Trucking, 94-1631 (La.App. 3 Cir. 5/31/95), 657 So.2d 449, reversed on other grounds, Smith v. Southern Holdings, Inc., 02-1071 (La.1/28/03), 839 So.2d 5. The substantial pain doctrine has no application when considering an award of TTD benefits.

Every physician has maintained that Carmouche is physically able to return to employment, including Dr. Rees. He is not entitled to TTD benefits. However, Car-mouche maintains that he is prevented from working because of pain. Dr. Rees supports Carmouche in this contention.

No one maintains that Carmouche is entitled to anything less than SEBs. Indeed, the parties stipulated that the only dispute before the WCJ was whether Kraft was entitled to reduce Carmouche’s benefits to SEBs. However, Kraft’s argument that Carmouche failed to carry his burden of proof implies that Carmouche is entitled to no benefits whatsoever. Yet Kraft provoked the controversy not by terminating Carmouche’s benefits, but by reducing them to SEBs. Carmouche sought and the WCJ awarded TTD benefits on the basis of the substantial pain doctrine, which does not apply when considering an award of TTD benefits.

An employee is entitled to SEBs when he is unable to earn 90 percent or more of his wages at the time of injury. La.R.S. 23:1221(3)(a). SEBs entitle the employee Ifito 66 2/3 percent of the difference between his average monthly wages at the time of injury and his average monthly wages earned or capable of being earned. Id. There was no dispute at trial that Carmouche’s average weekly wage before the accident was $767.58. To calculate his average monthly wage, we multiply his wage by 52, then divide by twelve. That results in an average monthly wage of $3,326.18 pre-accident. Carmouche would have earned $360.00 weekly while working for All Facilities. That results in an average monthly wage of $1,560.00. The difference between his pre-accident average monthly wage and his average monthly wage with All Facilities is $1,766.18. Sixty-six and two-thirds of that equals $1,177.44 per month.

“Payments of compensation ... shall be paid as near as may be possible, at the same time and place as wages were payable to the employee before the accident.” La.R.S. 23:1201(A). Despite the fact that SEBs are calculated by determining the employee’s average monthly wages, if an employee is paid weekly, his SEBs are to be paid weekly. In Payne v. Country Pride Foods, Ltd., 525 So.2d 106 (La.App. 3 Cir.1988), we affirmed the appellant’s calculation of weekly SEBs based upon reversing the formula applied in determining his average monthly wages. To calculate the weekly rate of SEBs under the Payne formula, one would then multiply $1,177.44 (66 2/3 of the difference between his pre-accident wages and the pay he would have received from All Facilities) by twelve, yielding yearly benefits of $14,129.28, then divide by 52 weeks, for a weekly benefit of $271.72. Carmouche is thus entitled to $271.72 per week in SEBs.

^CONCLUSION

For these reasons, the judgment of the WCJ is affirmed on the issue of a second vocational rehabilitation counselor, but reversed on the issue of Carmouche’s entitlement to TTD benefits. It is ordered that defendant/appellant, Kraft Foods, Inc., pay supplemental benefits in the amount of $271.72 per week to plaintiff/appellee, Robert Carmouche. Costs of this appeal are assessed to the plaintiff/appellee, Robert Carmouche.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PAINTER, J., dissents and assigns written reasons.

SAUNDERS, J., dissents for reasons assigned by Judge PAINTER.

PAINTER, J.,

dissenting.

1 tThe sole issue on which I disagree with the majority is with regard to the calculation of SEB.

After reviewing the record, it appears that the WCJ correctly summarized the medical evidence. Accordingly, I agree with the WCJ that Carmouche proved that he could not do the job found for him due to substantial pain.

While pain may prevent a claimant from maintaining any gainful employment and thus entitle him or her to temporary total disability benefits, neither the medical evidence nor Carmouche’s testimony established that Carmouche is unable to do any work. A claimant seeking TTD must not only establish a work related disability, but also establish by clear and convincing evidence, unaided by any presumption of disability that he is physically unable to engage in any employment. La. R.S. 23:1221(l)(c). Therefore, I agree with the majority that the WCJ erred in finding that Carmouche is entitled to TTD and that Kraft was entitled to change its payment to the payment of supplemental earnings benefits under La.R.S. 23:1221(3). However, the evidence of record is insufficient to establish that Kraft’s SEB payments were made in the correct amount. The burden was on Kraft to establish Car-mouche’s earning capacity, by proving by a preponderance of the evidence, that he was physically able to perform a certain job, and that the job was offered to the employee in his or the employer’s community or reasonable geographic region. Connor v. Family Dollar Store, 09-1537 (La.App. 1 Cir. 3/26/10), 36 So.3d 339.

li>The only job found for Carmouche was one which he showed that he could not perform due to pain and anxiety. Car-mouche worked for fourteen or fifteen years as a mechanic and at least 10 years as a truck driver, never dealing with antagonistic people or complaints on the phone. The stress level of a job for which he had no background was too great. The evidence supports the conclusion that pain and medication aggravated his stress to the point that he was physically incapable of doing the job.

Where the majority has missed the mark is in its failure to understand that Carmouche is not 'physically capable of doing the job found for him because of the combined pain, medication, and stress. Therefore, Kraft failed to prove Car-mouche’s earning capacity by a preponderance of the evidence because they did not find him a job that he was physically able to do.

Accordingly, the SEB paid to Car-mouche was incorrect in amount, and based on the record before this court, SEB should be calculated on a zero earned wages until Kraft can find an appropriate job for Carmouche.

As a result, I respectfully dissent from the majority herein.


author: COOKS, Judge.

text:
    Mavis S. STEPHENS v. Paul David STRAHAN, II, and Phoebe Leone Strahan.
    No. 11-236.
    Court of Appeal of Louisiana, Third Circuit.
    April 20, 2011.

      William Daniel Dyess, Dyess Law Firm, LLC, Many, LA, for Plaintiff/Appellant Mavis S. Stephens.
    Kenneth N. Simmons, Attorney at Law, Many, LA, for Defendants/Appellees Paul David Strahan, II, Phoebe Leone Strahan.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   COOKS, Judge.

11 Upon the lodging of this appeal, this court, on its own motion, issued a rule for the plaintiff-appellant, Mavis S. Stephens, to show cause, by brief only, why the appeal in this case should not be dismissed as having been taken from a non-appeal-able, interlocutory order. On March 3, 2011, the defendants-appellees, Paul David Strahan, II, and Phoebe Leone Strahan, filed a Motion to Dismiss on Grounds of Appeal of an Interlocutory Judgment and/or Untimely Appeal and/or Abandonment and for Attorney Fees. For the reasons given herein, we dismiss the appeal, and we deny the defendants’ motion for attorney fees.

Plaintiff filed this action asserting that the defendants had disturbed her peaceable possession of her property. However, the petition also had language indicating that the plaintiff owned the property at issue. The defendants responded to the petition by filing exceptions of no right of action, no cause of action and improper cumulation of actions. All three exceptions were based on the argument that the plaintiff had improperly plead both a pos-sessory action and a petitory action in the petition.

Following a hearing on the exceptions, the trial court entered judgment granting the exceptions of no cause of action and improper cumulation of actions. However, the trial court ordered that the plaintiff amend the petition to cure the defects within fifteen days of the trial court’s judgment. The plaintiff filed her First Amended and Supplemental Petition Stating Claim for Possessory Action within the time set by the trial court.

In response to the amending and supplemental petition, the defendants filed their Motion to Dismiss; Exception of Prescription and/or Exception of Peremption. The defendants argued that the plaintiff had failed to follow the trial court’s order to |2file an amending petition removing any possessory claim and limiting the cause of action to a petitory action.

Following a hearing on the defendants’ motion, the trial court entered judgment on November 16, 2010, dismissing plaintiff’s possessory action without prejudice. However, the trial court found that, in the interest of justice, the plaintiff should be afforded another opportunity to amend her petition to state a petitory cause of action. Therefore, the trial court ordered the plaintiff to amend her petition again within ten days, on penalty of dismissal of all claims in the plaintiff’s initial petition with prejudice.

The plaintiff then filed her Second Amended and Supplemental Petition Setting Forth Petition for Recognition of Ownership of Immoveable Property or Petitory Action. However, the plaintiff also filed a motion for an appeal of the judgment of November 16, 2010. Upon the lodging of the appeal in this court, we issued a rule to show cause, by brief only, why this appeal should not be dismissed as having been taken from a non-appealable, interlocutory order. Additionally, the defendants filed a motion to dismiss the appeal and asked for an award of attorney fees and costs, claiming that the appeal was frivolous.

In the brief filed by the plaintiff in response to this court’s rule and the defendants’ motion, the plaintiff first argues that the trial court’s ruling dismissing the possessory action is either a complete final judgment or a partial final judgment pursuant to La.Code Civ.P. art. 1915. Based on this premise, the plaintiff asserts that the appeal is appropriate. We disagree.

We find that, in this instance, a clear classification of the judgment as either an interlocutory ruling or a partial final judgment is of no legal consequence since the result is the same. The trial court’s ruling clearly does not dismiss the plaintiffs Rentire suit. To the contrary, the trial court maintained the plaintiff’s suit, provided the plaintiff filed an amended petition, which amendment the plaintiff timely accomplished. Therefore, we find no merit to the plaintiffs assertion that the trial court’s ruling is a complete, final adjudication of this suit.

In Bankston v. Guzman, 537 So.2d 1205, 1207 (La.App. 3 Cir.), unit denied, 538 So.2d 615 (La.1989), this court stated:

Ordinarily, when an exception of no cause or right of action is sustained by the trial judge, the judgment is final, and an appeal lies from such a ruling. See Stevens v. Daigle & Hinson Rambler, Inc., 148 So.2d 105 (La.App. 1st Cir.1962). However, if a trial court sustains an exception of no cause of action but does not dismiss the suit, such as where the plaintiff is afforded an opportunity to amend the petition within a certain time, then the trial court’s ruling is not a final appealable judgment. In such a case, the judgment is only interlocutory, and an appeal from such a ruling is inappropriate. La.Code Civ. Proc. Arts. 1841 and 2083. For example, see, Williams v. City of Bastrop, 464 So.2d 1389 (LaApp. 2nd Cir.1985), and the same case on earlier review, Williams v. City of Bastrop, 458 So.2d 221 (La.App. 2nd Cir.1984).
Thus, in the instant case, the record reveals that plaintiffs suit has not been dismissed, and plaintiff was given the opportunity to amend her petition. Therefore, the trial court’s judgment was interlocutory, and this appeal is inappropriate. This appeal is hereby dismissed at plaintiffs cost, and this suit is remanded to the trial court for further proceedings consistent with this opinion.

Furthermore, if the judgment is considered an interlocutory ruling, the plaintiff can assign this ruling as error should the plaintiff appeal the final judgment which will ultimately be rendered in this suit. See Firemen’s Pension and Relief Fund for the City of Lake Charles v. Boyer, 420 So.2d 1328 (La.App. 3 Cir.1982).

Despite the foregoing jurisprudence, the plaintiff argues that changes to La.Code Civ.P. art. 1915 since rendition of such cases as the above cited Bankston case indicates that the instant judgment should now be considered appealable. However, even if this judgment constitutes a partial final judgment, we find that it would fall within the purview of La.Code Civ.P. art. 1915(B), requiring a designation |4of appealability in order to be immediately ap-pealable. Moreover, we find that a designation of immediate appealability would be inappropriate, finding that this judgment does not meet the criteria for designation set forth in R.J. Messinger, Inc. v. Rosenblum, 2004-1664 (La.3/2/05), 894 So.2d 1113. See also Fakier v. State of La., Bd. of Sup’rs for Univ. of La. Sys., 2008-111 (La.App. 3 Cir. 5/28/08), 983 So.2d 1024. In particular, we note that if the plaintiff is successful in litigating the petitory action, the plaintiff would have no necessity for obtaining a reversal of the trial court’s dismissal of the possessory action, thereby obviating the need for this court ever to review the propriety of the current judgment at issue. Therefore, we hold that the plaintiff can obtain adequate relief by assigning this judgment as error in any future appeal from the complete adjudication of this matter and that a designation of this judgment as immediately appealable at this time is inappropriate.

Next, the plaintiff argues that if the court finds that the judgment is interlocutory, an appeal is appropriate because the ruling causing irreparable harm. The legislature has expressly stated through statutory amendment that interlocutory rulings are to be reviewed on appeal in instances only where the law expressly provides such relief. La.Code Civ.P. art. 2083. Since no statute expressly provides for an appeal of the ruling at issue in this case, we find no merit to plaintiffs argument in this regard.

Finally, the plaintiff asks that, if we dismiss the appeal, this court exercise of its supervisory jurisdiction to review the ruling. As stated above, we find that the plaintiff has an adequate remedy on appeal since this judgment can be assigned as error in an appeal from the subsequent complete final judgment in this suit. Therefore, we decline to exercise this court’s discretionary supervisory jurisdiction.

At noted above, the defendants have asked this court to award them attorney |sfees for the plaintiffs filing of the instant appeal. While we dismiss the appeal, we have stated that this court can review the propriety of the trial court’s ruling through the assignment of the judgment as error in the appeal from the final, complete adjudication of the suit. We do not find that the plaintiffs appeal is frivolous; instead, we find that the plaintiffs attempt to obtain review of the ruling is temporally premature. Therefore, we deny the request for attorney fees.

For the above stated reasons, we hereby dismiss this appeal at plaintiffs cost.

APPEAL DISMISSED.


author: PICKETT, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS v. Jeremy W. RIGGLEMAN.
    No. 10-1518.
    Court of Appeal of Louisiana, Third Circuit.
    May 4, 2011.
    Christopher J. Roy Jr., A Law Corporation, Alexandria, LA, for Defendant/Appel-lee, Jeremy W. Riggleman.
    Jennifer Del Murray, Baton Rouge, LA, for Plaintiff/Appellant, State of Louisiana, Department of Public Safety & Corrections.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PICKETT, Judge.

hThe Department of Public Safety and Corrections (DPS) appeals a judgment reversing the suspension of a driver’s license for the driver’s refusal to submit to a chemical test after being arrested for operating a vehicle while intoxicated. For the following reasons, we reverse.

FACTS

This matter is before us pursuant to an Application for Trial De Novo filed by Jeremy Riggleman after his driver’s license was suspended by an Administrative Law Judge (ALJ) pursuant to Louisiana’s “Tests for Suspected Drunken Drivers” Law, which is set forth in La.R.S. 32:661-670. The minutes of the trial court do not indicate that any evidence was introduced at the hearing held on Mr. Riggleman’s Application. The record does contain, however, pleadings and memoranda filed by the parties that show pertinent facts which are not disputed by the parties.

As a general rule, attachments to pleadings and/or memoranda are not treated as evidence unless they are introduced into evidence and cannot be considered by this court on appeal. Abshire v. Belmont Homes, Inc., 04-1200 (La.App. 3 Cir. 3/2/05), 896 So.2d 277, writ denied, 05-862 (La.6/3/05), 903 So.2d 458. Yet, this court held in Abshire that where parties to litigation treat such documents as having been introduced into evidence, “we will treat their acknowledgment as a judicial confession of the existence of the documents as evidence.” Id. at 280. Counsel for Mr. Riggleman stated at the hearing on his Application for Trial De Novo that he had no evidence to introduce because “everything that we were to put in is actually in the record.” Accordingly, we will treat the attachments to the Application as evidence.

The following undisputed facts are reflected in the record. On March 14, 2009, Rapides Parish Sheriffs Deputy Curtis Gunter stopped Mr. Riggleman on |2La. Hwy. 461 after observing him cross the center line of the highway. After stopping Mr. Riggleman, Deputy Gunter became suspicious that Mr. Riggleman was intoxicated. He, therefore, obtained Mr. Rig-gleman’s consent to administer a Standardized Field Sobriety Test from which he concluded that Mr. Riggleman was intoxicated. Deputy Gunter then arrested Mr. Riggleman for operating a vehicle while intoxicated, a violation of La.R.S. 14:98.

Deputy Gunter transported Mr. Riggle-man to a substation of the Rapides Parish Sheriffs Office where he advised Mr. Rig-gleman that his driving privileges could be suspended for refusing to submit to a chemical test of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood and the presence of any abused substance or controlled dangerous substance, as provided in La.R.S. 32:661. Mr. Riggle-man refused to submit to a chemical test of his breath; therefore, Deputy Gunter obtained a search warrant to require him to submit to a blood test. Deputy Gunter then transported Mr. Riggleman to the hospital where his blood was drawn for a blood test. Pursuant to La.R.S. 32:667, DPS seized Mr. Riggleman’s driver’s license and suspended his driving privileges.

Mr. Riggleman requested an administrative hearing for an ALJ to determine whether the suspension was appropriate. At the hearing, Mr. Riggleman urged that while he refused to submit to the breath test, he consented to and did submit to the blood test; therefore, his license should not be suspended. The ALJ concluded that because Mr. Riggleman refused to submit to the breath test, as initially requested by Deputy Gunter, DPS was entitled to suspend his license and ordered that his license be suspended for twelve months.

|sMr. Riggleman then filed his Application for Trial De Novo. At the hearing on his Application, the trial court agreed with Mr. Riggleman’s argument and reversed the ALJ’s order suspending his driver’s license. DPS appeals. It urges on appeal that Mr. Riggleman’s refusal to submit to a breath test as requested by Deputy Gun-ter satisfied the requirements of La.R.S. 32:661-670 and seeks to have the ALJ’s order suspending Mr. Riggleman’s driver’s license suspended reinstated.

ISSUE

This appeal presents one issue for our determination: whether the requirements of La.R.S. 32:661-670 are met when a person refuses to submit to one chemical test for intoxication when requested by a law enforcement officer but thereafter complies with a search warrant that orders the person to submit to a different chemical test for intoxication?

DISCUSSION

DPS contends Mr. Riggleman’s position is faulty, arguing his refusal to submit to a breath test when requested by Deputy Gunter triggered the provisions of La.R.S. 32:661-670 that mandate suspension of a driver’s license for refusing a law enforcement officer’s request to submit to a chemical test for intoxication when the grounds set forth therein exist. It urges that once Deputy Gunter obtained a search warrant to draw his blood, Mr. Riggle-man’s lack of objection to the blood test does not amount to consent.

Mr. Riggleman admits he refused to take the breath chemical test for intoxication as Deputy Gunter requested but argues he consented to a chemical test for intoxication when he did not object to or otherwise dispute the drawing or taking of his blood and the performance of a blood chemical test for intoxication on his Jjblood. He asserts Louisiana law does not require a driver to submit to one form of chemical testing in lieu of the other forms of chemical testing provided by law. He points to language of La.R,S. 32:661(A)(1) and La.R.S. 32:667 as support for his position.

Section 661(A)(1) provides: “Any person ... who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent ... to a chemical test or tests of his blood, breath, urine, or other bodily substance for the purpose of determining the alcoholic content of his blood.” Section 667 provides for the seizure of a person’s driver’s license and the suspension of his driving privileges if he “refuses to submit to an approved chemical test for intoxication” when the grounds set forth in La.R.S. 32:667 exist.

This issue has not been addressed previously by another Louisiana court. Our analysis is based on the language of La. R.S. 32:661(A), which directs law enforcement agencies to designate in writing which chemical test is to be administered. Specifically, La.R.S. 32:661(A)(2)(a) (emphasis added) states:

The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person, regardless of age, to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of either alcoholic beverages or any abused substance or controlled dangerous substance as set forth in R.S. 40:964. The law enforcement agency by which such officer is employed shall designate in writing and under what conditions which of the aforesaid tests shall be administered.

Deputy Gunter completed an Affidavit for Search Warrant after Mr. Riggleman refused to submit to a breath test. In his Affidavit, Deputy Gunter stated that “the suspect refused” to submit to a breath test when directed to do so, then requested:

[Tjhat a search warrant issue ordering the suspect to submit to an Intoxilyzer 5000 breath test at the direction of the arresting officer, or in 1 Bthe alternative, authorizing the affiant or any other peace officer in Rapides Parish, Louisiana, to search for and seize whole blood in an amount sufficient for testing and analysis.

A district judge signed the Search Warrant as requested by Deputy Gunter. The Search Warrant ordered “the suspect,” Mr. Riggleman, “to submit to a breath test at the direction of the arresting officer,” then provided: “if the suspect refuses to submit to the breath test as ordered by the Court, affiant ... is ordered to seize the above described person and obtain a sample of whole blood in an appropriate medical setting in strict accord with medically acceptable practices ... as provided by law.”

We read Deputy Gunter’s Affidavit and the Search Warrant as a designation in writing by the Rapides Parish Sheriffs Office of the tests to be administered and the conditions under which the tests are to be administered, as required by La.R.S. 32:661(A)(2). Specifically, we find the Rapides Parish Sheriffs Office designated the breath test in the Affidavit and Search Warrant as the first test to be administered and the blood test to be administered only if the suspect refused the breath test. Therefore, once Mr. Riggle-man refused to submit to a breath test as directed by Deputy Gunter, La.R.S. 32:667 became applicable, and DPS’s suspension of his driving privileges was proper. Accordingly, the trial court erred in reversing the suspension of Mr. Riggleman’s driving privileges.

DISPOSITION

The judgment of the trial court is reversed. All costs associated with this appeal are assessed to Jeremy Riggleman.

REVERSED.


author: RANDOLPH, Justice,

text:
    J.R., a Minor, by and through Next Friend and Father, R.R. v. Bobby MALLEY and Janet Malley.
    No. 2010-IA-00382-SCT.
    Supreme Court of Mississippi.
    March 31, 2011.
    Rehearing Denied June 9, 2011.

      David Randall Wade, Jackson, Robert Lofton Gray, Jr., Flowood, attorneys for appellant.
    Christopher A. Tabb, Brandon, attorney for appellees.
   RANDOLPH, Justice,

for the Court:

¶ 1. In November 2004, fifty-nine-year-old Bobby Malley (“Malley”) filed a “Petition to Enter Plea of Guilty” in the Circuit Court of Rankin County, Mississippi, to two criminal charges of fondling twelve-year-old J.R. on separate occasions. In March 2008, J.R. filed a civil suit against Malley and his wife, Janet Malley, which included a claim against Malley for battery, and other claims. Subsequently, J.R. filed a “Motion for Partial Summary Judgment of Liability Against Defendant, Bobby Malley,” contending that the doctrine of collateral estoppel precluded a finding that genuine issues of material fact existed regarding Malley’s civil liability for the two criminal charges of fondling to which he “pled guilty and was convicted.” Following hearings, the circuit court entered an Order denying J.R.’s motion for partial summary judgment. Thereafter, this Court granted J.R.’s “Petition for Permission for Interlocutory Appeal.” On appeal, this Court will consider the following issue raised by J.R., “[wjhether any genuine issues of material fact exist regarding [Mal-ley’s] civil liability for crimes committed against J.R.”

FACTS

¶ 2. At the age of nine or ten, J.R. met Malley, who lived across the street. Mal-ley was then employed by the State of Mississippi and also worked for the Rankin County Sheriffs Department “as the Reserves and Jail trainer.” According to J.R., Malley “was, like, a father figure[,]” and J.R. would frequent the Malleys’ home. In February and March 2003, J.R. was twelve years old and Malley was fifty-eight years old. Beginning at this time, J.R. said, Malley started touching him inappropriately. According to J.R., while alone with Malley in the Malleys’ living room and front porch, Malley “rubbed my testicles [twenty] times” and “stuck his penis out” on one occasion.

¶ 3. On November 15, 2004, Malley entered a “Petition to Enter Plea of Guilty” in the circuit court “to the charge of Fondling § 97-5-23,” which provided that he “touched J.R. for the purpose of gratifying lust [,] who is under age 16[,] in Rankin County, Miss, two times." (Emphasis added.) On November 24, 2004, the circuit court filed a “Judgment of Conviction” which “accepted and entered” Malley’s “Petition to Enter Plea of Guilty.”

¶ 4. J.R.’s deposition testimony provided that he began seeing a counselor shortly after reporting to his mother the incidents involving Malley. During that period, a psychiatrist prescribed Zoloft to J.R., which he took for three or four months to treat depression. J.R. continued to see various psychologists between 2003 and 2007 for the psychological and emotional effects “of what occurred.” With regard to “lasting problems,” J.R.’s deposition testimony was that he had experienced “recurrent memories of the molestation” and is “not entirely sure with [his] sexuality.”

¶ 5. On March 31, 2008, J.R. filed a civil suit, “by and through his Next Friend and Father, R.R.[,]” against Malley and, his wife, Janet Malley. According to the Complaint:

in February and March of 2003 [Malley] invited J.R. to [Malley’s] house on a number of occasions during which [Mal-ley] enticed, lured or coerced or pressured J.R. to engage in various sexual acts with [Malley], which included but are not limited to fondling, intentional harmful and/or offensive contact with J.R.’s body, and/or an imminent apprehension of such contact.... [Malley] pled guilty in state criminal court proceedings to [the] substance of allegations of sex crimes committed against J.R. as alleged in this [C]omplaint.

As the “direct and proximate result” of such allegedly “outrageous, egregious, willful, wanton, and malicious conduct[,]” J.R. claimed that he had suffered physical, psychological, and emotional injuries.

¶ 6. Thereafter, J.R. filed a “Motion for Partial Summary Judgment of Liability Against Defendant, Bobby Malley,” as to “liability upon [J.R.’s] causes of action for battery, intentional infliction of emotional distress, and outrageous conduct occurring on two occasions and upon which [Malley] pled guilty and was convicted.” (Emphasis added.) According to J.R., Malley’s “conviction under Miss.Code § 97-5-23, once final, established his fault in the torts of battery, intentional infliction of emotional distress and outrageous conduct committed against J.R.”

¶ 7. In response, Malley maintained that J.R. “has not come forward with any evidence of the intent of [Malley] which is essential to prove the intentional tort of assault or battery.” Moreover, Malley contended that, in his guilty plea, he “only admitted that he committed the acts ... and not to causing physical, psychological and emotional damage to [J.R.].” Therefore, Malley denied “that he caused any damage to [J.R.] and ... that he is the proximate cause of any damage alleged by [J.R.].” In total, Malley asserted that a partial summary judgment of liability was improper because J.R. had failed to prove the requisite elements “of each cause of action that he has filed against [Malley].”

¶ 8. Following hearings, the circuit court entered its “Order Denying Plaintiffs Motion and Amended Motion for Partial Summary Judgment of Liability Against Defendant, Bobby Malley.” According to the circuit court, “the case of Jordan v. Wilson, 5 So.3d 442 (Miss.Ct.App.2008), controls this matter, and ... [J.R.’s] motions are not well-taken and should be denied.” On April 16, 2010, this Court granted J.R.’s “Petition for Permission for Interlocutory Appeal.”

ISSUE

¶ 9. This Court will consider:

Whether any genuine issues of material fact exist regarding Malley’s civil liability for crimes committed against J.R.

ANALYSIS

¶ 10. The standard of review for a trial court’s grant or denial of a motion for summary judgment is de novo. See Buckel v. Chaney, 47 So.3d 148, 152 (Miss.2010) (citing Whitaker v. Limeco Corp., 32 So.3d 429, 433-34 (Miss.2010)). Mississippi Rule of Civil Procedure 56(c) provides, in pertinent part, that summary judgment:

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to the amount of damages.

Miss. R. Civ. P. 56(c).

¶ 11. This Court has stated that the term “ ‘conviction,’ in its technical legal sense, ‘means the final consummation of the prosecution against accused including the judgment or sentence rendered pursuant to a verdict, confession, or plea of guilty.’ Wilcher v. State, 697 So.2d 1087, 1119 (Miss.1997) (quoting 24 C.J.S. Criminal Law § 1458) (emphasis added). “[A] conviction in a prior criminal case is conclusive, in a subsequent civil action, of the facts upon which the conviction was based.” Jordan v. McKenna, 573 So.2d 1371, 1376 (Miss.1990) (citation omitted) (emphasis added). In McKenna, Jordan was criminally charged with the forceable rape of McKenna. See McKenna, 573 So.2d at 1373. While those proceedings were pending, McKenna brought a civil action against Jordan seeking damages for assault and battery. See id. at 1372-73. After Jordan was criminally convicted, McKenna “reactivated” her civil action against Jordan. Id. at 1374. Following a jury award of actual and punitive damages to McKenna, Jordan appealed. See id. On appeal, this Court concluded that “Jordan ... entered the present proceedings faced with a final finding of fact that he had assaulted and raped [McKenna,]” and “[t]he point goes to Jordan’s fault, but not causation nor damages.” Id. at 1374-75 (emphasis added).

¶ 12. The circuit court erred in relying upon Wilson as “controlling] this matter.” See Wilson, 5 So.3d at 442. In Wilson, a homeowner allegedly pointed a gun at a home-health nurse who was parked in her driveway. See id. at 444. Thereafter, the home-health nurse filed suit against the homeowner “for assault and negligence arising out of [that] incident. ...” Id. at 443-44. In reversing the circuit court’s entry of summary judgment in favor of the homeowner, the Mississippi Court of Appeals concluded that “there was ample evidence to create a genuine issue of material fact as to whether [the homeowner] pointed the firearm at [the home-health nurse] either intending to put [her] in imminent apprehension of a battery or with substantial certainty that pointing a gun at [her] would bring about such a result.” Id. at 450. In so ruling, that court stated, “[i]t is well settled that intent is a question of fact for the jury ....” Id. (citing Miss. State Bd. of Nursing v. Wilson, 624 So.2d 485, 494 (Miss. 1993)) (emphasis added).

¶ 13. But this Court finds that Wilson is not only factually distinguishable, but (more importantly) legally distinguishable, as no underlying criminal convictions were at issue in Wilson. As J.R. maintains, by virtue of Malley’s guilty plea, the underlying facts of those two fondling incidents, including Malley’s intent therein, are now “established fact[s].”

¶ 14. This Court has identified the elements for the intentional tort of battery, as follows:

[a]n assault occurs when a person (1) acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (2) the other person is thereby put in such imminent apprehension.... A battery goes one step beyond an assault in that a harmful contact actually occurs.

Morgan v. Greenwaldt, 786 So.2d 1037, 1043 (Miss.2001) (citing Webb v. Jackson, 583 So.2d 946, 951 (Miss.1991) (citing Restatement (Second) of Torts § 21 (1965))). In the present case, Malley’s guilty plea renders “conclusive ... the facts upon which the conviction was based[,]” and the doctrine of res judicata applies to the civil proceeding. McKenna, 573 So.2d at 1376. Without question, intent is generally “a question of fact for the jury....” Wilson, 5 So.3d at 450. But here, Malley’s criminal intent to “touc[h] J.R. for the purpose of gratifying lust” was admitted in his guilty plea, and thus satisfies the intent element for the intentional tort of battery. In McKenna, this Court stated that:

our rape statute, Miss.Code Ann. § 97-3-65(2) (Supp.1984), imposed a duty well within the contours of the common law tort of assault and battery. [McKenna] was one of those the statute was designed to protect. When we hold Jordan’s rape conviction, once final, established his fault in tort, we do nothing more than restate our traditional view of conduct actionable per se.

Id. at 1375-76 (emphasis added). Similarly, this Court finds that Section 97-5-23 “imposed a duty well within the contours of the common law tort of ... battery[,]” such that Malley’s fondling conviction “established his fault in tort” as to the two incidents which were the subject of his guilty plea. Id. This “point goes to [Mal-ley’s] fault, but not causation nor damages.” Id. at 1374-75.

¶ 15. As to his claim of intentional infliction of emotional distress, J.R. must show by a preponderance of the evidence that:

1. [Malley] acted willfully or wantonly towards [J.R.] by [description of defendant’s actions ];
2. [t]he defendant’s [act/acts ] [is/are ] [ione/ones ] which evoke outrage or revulsion in civilized society;
3. [t]he [act/acts ] was/were directed at or intended to cause harm to [J.R.];
4. [J.R.] suffered severe emotional distress as a direct result of the [act/acts ] of the defendant; and
5. Such resulting emotional distress was foreseeable from the intentional [acts/acts ] of the defendant....

Miss. Practice Model Jury Instr. Civil § 21:1 (2010) (emphasis in original). See also Pierce v. Cook, 992 So.2d 612, 626-27 (Miss.2008) (addressing requisite elements for a claim of intentional infliction of emotional distress). We conclude that elements (1) and (2) of J.R.’s intentional-infliction-of-emotional-distress claim are satisfied by the “conclusive ... facts upon which [Malley’s] conviction was based.” McKenna, 573 So.2d at 1376. We find no error in the circuit court’s refusal to grant a partial summary judgment of liability regarding that claim.

CONCLUSION

¶ 16. This Court reverses in part the “Order Denying Plaintiffs Motion and Amended Motion for Partial Summary Judgment of Liability Against Defendant, Bobby Malley” entered by the Circuit Court of Rankin County and remands this case for further proceedings consistent with this opinion. On remand, regarding the two incidents upon which Malley’s guilty plea was based, Malley’s fault for the intentional tort of battery is established, “but not causation nor damages.” McKenna, 573 So.2d at 1374-75. Furthermore, the “facts upon which [Malley’s] conviction was based” satisfies some, but not all requisite elements of his intentional-infliction-of-emotional-distress claim. Id. at 1376. Finally, as the parties agree, there also remain genuine issues of material fact for jury consideration regarding whether or not Malley committed any acts other than the two counts of fondling to which he pleaded guilty, and a determination of damages, if any.

¶ 17. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ„ CONCUR. KING, J, NOT PARTICIPATING.

      . Mississippi Code Section 97-5-23(1) provides that:
      [a]ny person above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or indulging his or her depraved licentious desires, shall handle, touch or rub with hands or any part of his or her body or any member thereof, any child under the age of sixteen (16) years, with or without the child’s consent, ... shall be guilty of a felony and, upon conviction thereof, shall be fined in a sum not less than [$1,000.00] nor more than [$5,000.00], or be committed to the custody of the State Department of Corrections not less than two (2) years nor more than fifteen (15) years, or be punished by both such fine and imprisonment, at the discretion of the court.
      Miss.Code Ann. § 97-5-23(1) (Rev.2006).

      . Regarding Janet Malley, the Complaint alleged that "on all such aforementioned occasions [she] was present in the house and had reasonable grounds for believing [Malley] was engaging in sexual acts with J.R., or in the alternative, Janet Malley was in complicity with and/or acquiescence of her husband’s sexual conduct toward J.R.” The claims against Janet Malley are not at issue in this interlocutory appeal.

      . Likewise, in his appellee’s brief, Malley acknowledges that he "touched a child inappropriately and for lustful purposes.”

      . Regarding J.R.’s "outrageous conduct” claim, given the conduct for which Malley has admitted fault, this Court notes only that a jury could be justified in concluding that Malley's conduct was "outrageous.” See Wilson v. Gen. Motors Acceptance Corp., 883 So.2d 56, 65 (Miss.2004) (quoting Leaf River Forest Prods., Inc. v. Ferguson, 662 So.2d 648, 659 (Miss. 1995)) (the standard for outrageous conduct "is whether the defendant’s behavior is malicious, intentional, willful, wanton, grossly careless, indifferent or reckless.”).