author: HIGGINBOTHAM, J.

text:
    BATON ROUGE GENERAL MEDICAL CENTER (Patricia Bailey) v. LOUISIANA RESTAURANT ASSOCIATION Self INSURERS SERVICE BUREAU, Inc. (Barco Enterprises, Inc. d/b/a the Chimes).
    No. 2010 CA 2197.
    Court of Appeal of Louisiana, First Circuit.
    March 14, 2012.

      John S. Bradford, Lynsay M. Fontenot, Thomas A. Filo, Lake Charles, LA, for Plaintiff-Appellant, Baton Rouge General Medical Center.
    Stephen W. Glusman, Stephen Broyles, Baton Rouge, LA, for Defendants-Appel-lees, Louisiana Restaurant Association Self Insurers Fund and Barco Enterprises, Inc.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   HIGGINBOTHAM, J.

lain this workers’ compensation case, a health care provider appeals a judgment sustaining a peremptory exception raising the objection of prescription as to its claim for penalties and attorney fees. For the following reasons, we reverse and remand for further proceedings.

It is undisputed that on December 27, 2005, Baton Rouge General Medical Center (“the health care provider”) rendered medical treatment to Patricia Bailey for a work-related injury. The total charge for the medical treatment was $607.00. On March 13, 2006, the health care provider received a discounted payment of $437.03 from Bailey’s employer, Barco Enterprises, Inc., d/b/a The Chimes, and the employer’s workers’ compensation insurer, Louisiana Restaurant Association Self Insurers Service Bureau (collectively referred to as “the employer”). On August 8, 2008, the health care provider filed a disputed claim for compensation due to the alleged underpayment and/or late payment of medical benefits by the employer. Additionally, the health care provider simultaneously asserted a claim for penalties and attorney fees for the employer’s alleged arbitrary and capricious handling of the claim.

The employer filed an exception of prescription as to the health care provider’s claims for penalties and attorney fees, relying on Craig v. Bantek West, Inc., 2003-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, writ denied, 2004-2995 (La.3/18/05), 896 So.2d 1004. The employer argued that since the payment for medical benefits was made on March 13, 2006, and the health care provider’s disputed claim was filed more than one year after the payment, the penalties and attorney fees claim was prescribed.

|sThe workers’ compensation judge (“WCJ”) sustained the employer’s exception of prescription on February 11, 2010, finding that a one-year prescriptive period applied to the health care provider’s claim for penalties and attorney fees. After this ruling, the employer unconditionally tendered to the health care provider a payment of $119.73, which was the amount of the disputed underpayment, plus interest and costs. Since the health care provider’s claim for penalties and attorney fees had been dismissed as prescribed, the employer then filed a motion for summary judgment, maintaining that the unconditional tender resolved all remaining issues between the parties.

The WCJ granted the employer’s motion for summary judgment on June 24, 2010, in a final judgment, recognizing that the health care provider’s claims for penalties and attorney fees had been previously denied on February 11, 2010, and dismissing the health care provider’s remaining claims with prejudice. The health care provider appealed, seeking review of the WCJ’s dismissal of its claims, as well as the WCJ’s ruling on the employer’s exception of prescription. The health care provider argued that |4since its claim for penalties and attorney fees under LSA-R.S. 2S:1201(F)(4) was simultaneously filed in conjunction with a timely claim for underpaid medical benefits, the WCJ erred in finding that the claim for penalties and attorney fees had prescribed.

Very recently, this court sitting en banc, considered the same legal issue that is involved in this case: namely, the appropriate prescriptive period for a health care provider’s claim for penalties and attorney fees in a workers’ compensation case pursuant to LSA-R.S. 23:1201(F)(4), when the health care provider had simultaneously filed a timely disputed claim for compensation due to an alleged underpayment of medical benefits. See St. Tammany Parish Hosp. v. Trinity Marine Products, Inc., 2010-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985, 991. In that en banc plurality decision, this court distinguished Craig, and then determined that the applicable prescriptive period for a health care provider’s claim for penalties and attorney fees is the same prescriptive period that is applicable to its timely-filed underlying claim for medical benefits. Id., 91 So.3d at 991. This court further concluded that neither claim had prescribed since the health care provider had simultaneously filed a claim for penalties and attorney fees along with its timely-filed disputed claim for underpayment of medical benefits.

The applicable prescriptive period for claims for medical benefits, when payments have been made, is set forth in LSA-R.S. 23:1209(C), as “three years from the time of making the last payment of medical benefits.” The uncontradicted evidence established that the employer’s “last payment” in the case sub judice was made to the health care provider on March 13, | fi2006, and the health care provider simultaneously filed its underpayment claim in conjunction with its claim for penalties and attorney fees on August 8, 2008, well within the three-year prescriptive period. Accordingly, for the reasons assigned in St. Tammany Parish Hosp., 91 So.3d at 992, we find that the WCJ erred in sustaining the employer’s peremptory exception raising the objection of prescription as to the health care provider’s claim for penalties and attorney fees in this case.

Therefore, we hereby reverse the judgment dismissing the health care provider’s claim for penalties and attorney fees. This matter is remanded to the Office of Workers’ Compensation for further proceedings. All costs associated with this appeal are assessed against defendants/appellees, Louisiana Restaurant Association Self Insurers Service Bureau and Barco Enterprises, Inc., d/b/a The Chimes.

REVERSED AND REMANDED.

CARTER, C.J., concurs in the results.

PARRO, J., concurs in the result.

      . This health care provider’s claim against the employer for underpayment and/or late payment of medical benefits falls within the exclusive jurisdiction of the Office of Workers’ Compensation. See St. Tammany Parish Hasp. v. Trinity Marine Products, Inc., 2010-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985, 987 n. 1.

      . In general, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory or partial judgments prejudicial to it or that involve the same or related issues, in addition to the review of the final judgment dismissing all of its claims with prejudice. See Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552 (La.App. 1st Cir.10/4/11), 77 So.3d 339, 345 n. 11, writs denied, 2011-2468 and 2011-2430 (La. 1/13/12), 77 So.3d 972 and 973; State ex rel. Div. of Admin., Office of Risk Mgt. v. National Union Fire Ins. Co. of Louisiana, 2010-0689 (La.App. 1st Cir.2/11/11), 56 So.3d 1236, 1242 n. 6, writ denied, 2011-0849 (La.6/3/11), 63 So.3d 1023; Judson v. Davis, 2004-1699 (La.App. 1st Cir.6/29/05), 916 So.2d 1106, 1112-13, writ denied, 2005-1998 (La.2/10/06), 924 So.2d 167. In this case, the partial judgment sustaining the exception of prescription as to only one claim was not designated as final for purposes of an immediate appeal, nor was there a determination that there was no just reason for delay. In addition, no parties were dismissed by the partial judgment. Thus, that partial judgment was interlocutory and not appealable. See LSA-C.C.P. art. 1915(B). See also Massi v. Rome, 2008-1281 (La.App. 5th Cir.6/23/09), 19 So.3d 485, 487; Raspanti v. Raspanti, 2005-738 (La.App. 5th Cir.3/3/06), 925 So.2d 676, 678; Eiswirth v. Anthony L. Golemi Contractor, Inc., 2002-1060 (La.App. 5th Cir. 1/28/03), 839 So.2d 346, 348. Therefore, we conclude that it is appropriate for us to review the partial judgment sustaining the exception of prescription in this unrestricted appeal of a final judgment dismissing the remainder of the health care provider’s claims.

      . The health care provider’s claim for penalties and attorney fees is based on LSA-R.S. 23:1201(F)(4), which provides for an award of penalties and attorney fees in the event that the health care provider "prevails on a claim for payment of [its] fee.”


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Herbert DOUGIA, Jr. v. BEST BUY CARPET AND FLOORING.
    No. 2011 CA 0051.
    Court of Appeal of Louisiana, First Circuit.
    March 16, 2012.
    Rehearing Denied May 4, 2012.

      Ted Williams, Baton Rouge, LA, for Plaintiff/Appellee Herbert Dougia, Jr.
    Stephen W. Brooks, Jr., Richard J. Voelker, Covington, LA, for Defendant/Appellant Best Buy Carpet and Flooring.
    Before GAIDRY, McDONALD, and HUGHES, JJ.
   McDonald, j.

|20n January 7, 2008, Hebert Dougia, Jr., a carpet installer, filed a disputed claim for compensation against his employer, Best Buy Carpet and Flooring (Best Buy Carpet). Mr. Dougia asserted that on November 2, 2007, while working on a job at a residential home in East Baton Rouge Parish, he injured his lower back while moving a dresser. He also contended that approximately one and one-half weeks later, he bent down to start cutting carpet and injured his back again. He asserted that he was disabled as a result of the two accidents, and was thus entitled to workers’ compensation benefits. Mr. Dougia asserted that no wage benefits had been paid and no medical bills had been paid other than an initial visit with Dr. Tsaza. Mr. Dougia asked for penalties and attorney fees. Best Buy Carpet disputed all aspects of Mr. Dougia’s claim.

A trial on the matter was heard on April 21, 2010. Thereafter, the Office of Workers’ Compensation (OWC) Judge issued a ruling, finding that Mr. Dougia had sustained an injury to his lower back in the course and scope of his duties as an employee of Best Buy Carpet on November 5, 2007 and November 12, 2007. The OWC Judge found that Mr. Dougia’s injuries, disabilities, and need for medical treatment were causally related to the accidents, and awarded Mr. Dougia supplemental earnings benefits, medical expenses, and ongoing medicál treatment, penalties of $2,000 for failure to pay medical benefits, penalties of $2,000 for failure to pay indemnity benefits, and $10,000 for attorney fees. The judgment was signed on May 3, 2010.

Best Buy Carpet filed an appeal from that judgment. Mr. Dougia filed an answer to the appeal, asking for attorney fees for responding to the appeal. Best Buy Carpet filed a motion to dismiss Mr. Dougia’s answer to the appeal, asserting that it was untimely. The motion to dismiss was referred to this panel, to be decided with the merits of the appeal.

| .THE MOTION TO DISMISS THE ANSWER TO THE APPEAL

An answer to an appeal must be filed no later than fifteen days after the return date or lodging of the record, whichever is later. La. C.C.P. art. 2133. The record shows that the return date was December 3, 2010 and the record was lodged on January 14, 2011. Using the rules for computation found in La. C.C.P. art. 5059, the fifteen-day period lapsed on Saturday, January 29. The time period cannot end on a holiday, thus, the period rolls over to the next date that is not a legal holiday. La. C.C.P. art. 5059. Thus, the fifteen-day time delay ended on Monday, January 31, 2011, and the answer to the appeal, filed on February 1, 2011, was untimely. Therefore, the motion to dismiss the answer to the appeal is granted.

THE APPEAL

Best Buy Carpet makes five assignments of error, asserting that the OWC Judge committed manifest error in concluding that Mr. Dougia sustained his burden of proving an accident arising out of and in the course of employment as a contractor with Best Buy Carpet on November 5, 2007; the OWC Judge manifestly erred in concluding that Mr. Dougia sustained his burden of proving an accident arising out of and in the course of his employment with Best Buy Carpet on November 12, 2007; the OWC Judge committed manifest error in awarding Mr. Dougia supplemental earnings benefits, and awarding SEBs at the full temporary total disability indemnity rate; the OWC Judge committed manifest error in the calculation of Mr. Dougia’s average weekly wage; and, the OWC Judge abused his discretion by not strictly construing the penalty provisions of the Louisiana Workers’ Compensation Act in imposing penalties and attorneys fees against Best Buy Carpet.

14ASSIGNMENTS OF ERROR NOS. 1 AND 2

Best Buy Carpet asserts that the OWC Judge manifestly erred in concluding that Mr. Dougia sustained his burden of proving an accident arising out of and in the course of employment with Best Buy Carpet on November 5, 2007 and November 12, 2007. The OWC Judge, in his oral reasons for judgment, noted that it carefully considered Mr. Dougia’s credibility. The OWC Judge expressly stated that he observed Mr. Dougia’s facial expressions, his composure, his demeanor, the way he answered the questions, the tone of his voice, his mannerisms, and his reaction to the questions, and, in the end, determined that Mr. Dougia was credible. Further, testimony at. trial revealed that the work book presented into evidence was a job assignment book, not an attendance record, and that jobs often ran over. The OWC Judge determined that, based upon the evidence presented at trial, Mr. Dougia proved that he was injured in the course and his employment with Best Buy Carpet on November 5 and November 12, 2007. After a thorough review of the record, we find no manifest error in the OWC Judge’s determination that Mr. Dougia was injured on November 5 and November 12, 2007, in the course of his employment with Best Buy Carpet.

ASSIGNMENT OF ERROR NO. 3

In this assignment of error, Best Buy Carpet asserts that the OWC Judge committed manifest error in awarding Mr. Dougia supplemental earnings benefits, and in- awarding SEBs at the full temporary total disability indemnity rate, when the OWC Judge found that Mr. Dougia had been involved in self-employment for some time and continued to perform that self-employment. Best Buy Carpet asserts that Mr. Dougia was not considered disabled for purposes of workers’ compensation due to his self-employment.

A similar case is found in Phillips v. United Parcel Service, 28,110 (La.App. 2 Cir. 2/28/96), 669 So.2d 1375. In that case, the claimant had two jobs. He |sworked at a strenuous job for UPS and had a light-duty job at a bank. After he was injured at the UPS job, he could not do the UPS job but could continue to work at the bank. The claimant made more at the bank than at the UPS job, and UPS refused to pay supplemental, earnings benefits. The Second Circuit reasoned that the claimant’s bank wages must be included in both the pre-accident and post-accident SEB wage comparison, or not included at all.

In the case at hand, the OWC Judge did not include Mr. Dougia’s side job earnings in the .pre-accident or post-accident SEB wage comparison. We cannot say that the OWC Judge committed manifest error in doing so.

ASSIGNMENT OF ERROR NO. 4

In this assignment of error, Best Buy Carpet asserts that the OWC Judge committed manifest error in the calculation of Mr. Dougia’s average weekly wage. Louisiana Revised Statutes 23:1021(12)(d) provides that if the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident are divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week, period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident are divided by the number of days the employee actually worked for the employer during said period, and multiplied by the average number of days worked per week. ,

Mr. Dougia was paid $3.50 per yard, of which he paid $1.00 per yard to his helper, resulting in a $2.50 per yard payment. The OWC Judge found the documentation was insufficient to determine the actual number of days Mr. Dougia worked during the 26 week period preceding his- November 12, 2007 accident. RThus, he calculated the average weekly wage by dividing the $8,190.00 Mr. Dougia earned during the period by 26 weeks, for an average weekly wage of $315.00. Best Buy Carpet contended that Mr. Dougia earned $8,246.13 during the 26 week period preceding his accident, and that the Best Buy work book supported him working 46 days during this 26 week period. However, testimony at trial revealed that the work book was a job assignment record, not an attendance record, and thus was not accurate as to the number of days Mr. Dougia worked. After a thorough review of the record, we cannot say that the OWC Judge committed manifest error in its calculation of Mr. Dougia’s average weekly wage.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, Best Buy Carpet asserts that the OWC Judge erred by not strictly construing the penalty provisions of the Louisiana Workers’ Compensation Act in imposing penalties and attorneys fees against Best Buy Carpet. Whether an employer’s refusal to pay workers’ compensation benefits warrants the imposition of penalties and attorney’s fees is a factual question which will not be disturbed on appeal in the absence of manifest error. The assessment of penalties is determined by inquiring whether the employer or its insurer has “reasonably controverted” the compensation claims. Wilson v. St. Mary Community Action, 00-2106 (La.App. 1 Cir. 12/28/01), 803 So.2d 1106,1112. After a thorough review of the record, we cannot say that the OWC Judge was manifestly erroneous in assessing penalties in this case. Costs are assessed against Best Buy Carpet.

MOTION TO DISMISS THE ANSWER TO THE APPEAL GRANTED; JUDGMENT AFFIRMED.


author: PARRO, J.

text:
    BATON ROUGE GENERAL MEDICAL CENTER v. LOUISIANA RESTAURANT ASSOCIATION, SIF and Italian Pie, L.L.C.
    No. 2011 CA 0610.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 2012.

      John S. Bradford, Lynsay M. Fontenot, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Thomas A. Filo, Cox, Cox, Filo, Camel &' Wilson, Lake Charles, LA, for Plaintiff-Appellant Baton Rouge General Medical Center.
    Stephen W. Glusman, Glusman, Broyles & Glusman, L.L.C., Baton Rouge, LA, for Defendants-Appellees, Louisiana Restaurant Association, SIF, and Italian Pie, L.L.C.
    Before CARTER, C.J., PARRO, and HIGGINBOTHAM, JJ.
   PARRO, J.

|2In this workers’ compensation case, Baton Rouge General Medical Center (BRGMC) appeals a judgment dismissing as prescribed its claim for penalties and attorney fees, which was based on the failure of Louisiana Restaurant Association, SIF and/or Italian Pie, L.L.C. (defendants) to pay BRGMC the unpaid portion of its fees for medical services provided to the defendants’ employee, Benjamin Delo-ny, after he was injured at work. For the following reasons, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On August 4, 2006, Delony was injured at work and was treated for his injuries at BRGMC. Only a portion of the fee for medical services was paid by the defendants, with the last payment being made on September 11, 2006. On August 26, 2008, BRGMC filed suit for its unpaid fees, pursuant to LSA-R.S. 23:1209(0, plus statutory penalties and attorney fees under LSA-R.S. 23:1201(F)(4). The defendants filed an exception raising the objection of prescription as to the claim for penalties and attorney fees. The workers’ compensation judge (WCJ) sustained the exception, leaving the claim for unpaid medical services as the only remaining issue. Subsequently, the defendants unconditionally tendered that amount to BRGMC, together with legal interest and costs, after which they moved for summary judgment on the grounds that the payment had satisfied all of BRGMC’s remaining claims. The WCJ granted the motion for summary judgment in favor of the defendants, noting in the judgment that, with the earlier claims for penalties and attorney fees having been dismissed as prescribed, the judgment effectively dismissed all of BRGMC’s remaining claims. BRGMC filed this appeal, asking this court to reverse the judgment on the grounds that its claim for penalties and attorney fees had not prescribed.

UDISCUSSION

The defendants’ contention that BRGMC’s claim for penalties and attorney fees had prescribed is based on a case from this court, Craig v. Bantek West, Inc., 03-2757 (La.App. 1st Cir.9/17/04), 885 So.2d 1234, writ denied, 04-2995 (La.3/18/05), 896 So.2d 1004. In the Craig case, the injured employee sued his employer for penalties and attorney fees for several instances of arbitrary and capricious handling of his workers’ compensation claim. The WCJ sustained an exception raising the objection of prescription as to the employee’s claims for penalties and attorney fees, and the employee appealed. On appeal, this court noted that although the prescriptive period applicable to claims for workers’ compensation benefits is set forth in LSA-R.S. 23:1209, this statute made no reference to the prescriptive period applicable to claims for penalties and attorney fees. Craig, 885 So.2d at 1237. This court then analyzed LSA-R.S. 23:1201(F), which is the statutory basis for an award of penalties and attorney fees, noting that it also did not set out a prescriptive period for such claims. However, since such claims were to be assessed against either the employer or insurer, “depending upon fault,” this court agreed with the WCJ that because a claim for penalties and attorney fees necessarily implies wrongful conduct or inaction and involves an inquiry into fault, the one-year prescriptive period for delictual actions as set forth in LSA-C.C. art. 3492 more appropriately applies to such a claim. Because several of the employer’s actions giving rise to Craig’s claims for penalties and attorney fees had occurred more than a year before he filed his claim, those claims were prescribed. Id.

A more recent case from this court, St. Tammany Parish Hospital v. Trinity Marine Products, Inc., 10-1481 (La.App. 1st Cir.2/16/12), 91 So.3d 985, addressed the precise situation as that which is presented in the matter before us. Unlike the Craig case, which involved an employee filing a claim for penalties and attorney fees, the St. Tammany Parish Hospital case involved a health care provider claiming unpaid medical fees, as well as penalties and attorney fees. In that en banc plurality decision, |4five judges of this court distinguished Craig, and then determined that the applicable prescriptive period for a health care provider’s claim for penalties and attorney fees is the same prescriptive period that is applicable to its timely-filed underlying claim for medical benefits. Id., 91 So.3d at 991. Those five judges further concluded that neither claim had prescribed, since the health care provider had simultaneously filed a claim for penalties and attorney fees along with its timely-filed disputed claim for underpayment of medical benefits.

However, five other judges of this court concurred in the plurality decision, but disagreed with the rationale of the other five judges in reaching their conclusion. Although it was undisputed by all twelve judges of this court that the applicable prescriptive period for claims for medical benefits, when payments have been made, is set forth in LSA-R.S. 23:1209(C) as “three year,s from the time of making the last payment of medical benefits,” there was disagreement as to the commencement of the prescriptive period for a health care provider’s claim for penalties and attorney fees pursuant to LSA-R.S. 23:1201(F)(4). The five concurring judges subscribed to the legal position that LSA-R.S. 23:1201(F)(4) provides the health care provider with its cause of action for penalties and attorney fees. In particular, LSA-R.S. 23:1201(F)(4) provides, “[i]n the event that the health care provider prevails on a claim for payment of his fee, penalties ... and reasonable attorney fees ... may be awarded.... ” Under the plain language of this statutory provision, the health care provider’s cause of action for penalties and attorney fees does not accrue until the health care provider “prevails on a claim for payment of his fee.”

Under either interpretation, ten judges of this court agreed in the St. Tammany Parish Hospital case that the health care provider’s claim for penalties and attorney fees had not prescribed. Similarly, in the case before us, BRGMC filed its claim for penalties and attorney fees along with its claim for unpaid fees for medical services. Its claims were filed on August 26, 2008, which is within three years after September 11, 2006, when the last payment for medical services rendered to Delony was received from the 15defendants. Moreover, under the rationale of the five concurring judges, BRGMC had not yet prevailed on its claim for payment of its fee when it filed its claim for penalties and reasonable attorney fees. Until it had prevailed, its cause of action for penalties and attorney fees under LSA-R.S. 23:1201(F)(4) had not yet accrued, and therefore, could not have been prescribed. Therefore, under either rationale, we conclude that the WCJ erred in sustaining the peremptory exception raising the objection of prescription as to BRGMC’s claim for penalties and attorney fees.

CONCLUSION

Based on the recent plurality en banc decision of this court, the judgment of the WCJ sustaining the peremptory exception raising the objection of prescription as to BRGMC’s claim for penalties and attorney fees is reversed, and this case is remanded to the Office of Workers’ Compensation for further proceedings. All costs of this appeal are assessed to Louisiana Restaurant Association, SIF and Italian Pie, L.L.C.

REVERSED AND REMANDED.

HIGGINBOTHAM, J. concurs.

      . When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. See Landry v. Leonard J. Chabert Med. Ctr., 02-1559 (La. App. 1st Cir.5/14/03), 858 So.2d 454, 461 n. 4, writs denied, 03-1748, 03-1752 (La. 10/17/03), 855 So.2d 761. The WCJ’s partial judgment sustaining the exception of prescription was not appealed and did not qualify as a final judgment under the provisions of LSA-C.C.P. art. 1915. Therefore, it was an interlocutory judgment, which, because a final judgment has been appealed, is now reviewable by this court.


author: PETTIGREW, J.

text:
    Warren “Chip” PIERROTTI and Elizabeth T. Pierrotti v. Glenn Lee JOHNSON, Kim Graham Johnson, Stephen Colson and Prestige Title.
    No. 2011 CA 1317.
    Court of Appeal of Louisiana, First Circuit.
    March 19, 2012.

      Brent P. Frederick, Baton Rouge, LA, for Plaintiffs-Appellants Warren “Chip” Pierrotti and Elizabeth T. Pierrotti.
    Richard Mary, Frank Tomeny, III, Baton Rouge, LA, for Defendants-Appellees Glenn Lee Johnson and Kim Graham Johnson.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   PETTIGREW, J.

|2PIaintiffs appeal the dismissal of their lawsuit as res judicata due to a prior arbitration. For the reasons set forth below, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

According to the record, plaintiffs, Warren “Chip” Pierrotti and Elizabeth T. Pier-rotti (collectively referred to hereafter as “Pierrotti”), and defendants, Glenn Lee Johnson and Kim Graham Johnson (collectively referred to hereafter as “Johnson”), were years ago partners in multiple business ventures. On January 15, 2004, Pier-rotti and Johnson entered into a Master Settlement Agreement (“MSA”) “to effect a settlement of all claims between the parties.” It was the intent of the parties that by entering into the agreement, they were settling all claims between them, “whether asserted or not.”

For purposes of this litigation, the important section of the MSA is Agreement # 6, which sets forth the following:

Johnson agrees to transfer to Pierrot-ti or his designee all of Johnson’s right, title and interest in two parcels of real property in which Johnson is a co-owner with Pierrotti, including an office and warehouse facility located at 11862 Clo-verland Court, Baton Rouge, Louisiana, 70808, and a rental parcel located at 3620 Nelson Road, Lake Charles, Louisiana 70605. The consideration for the transfer shall be the assumption of liability by Pierrotti and the release of Johnson from obligations as maker or guarantor; the act of transfer shall not occur until Johnson shall have been fully released as a maker and guarantor of notes and all other obligations associated with the parcels in question. Johnson agrees to execute the act of transfer simultaneously (ie., at the same closing) with his release from the obligations.
Pierrotti agrees that during the period of time between the execution of this agreement and the transfer described in this section, he will maintain the property in good condition at his expense; he will keep casualty and liability insurance in place naming Johnson as an additional insured; and he will service the debt owed to lenders on a regular basis without permitting default. Further, Pier-rotti agrees that he will not encumber the property without the knowledge and consent of Johnson. Johnson agrees that he will have no claim to the rental income earned through leases; and Johnson and Pierrotti agree that Johnson will not be shown as a recipient of passive income or losses for income tax purposes for 2003 or until Johnson transfers the property interests.
In the event that Pierrotti fails to effect the transfer of real property from Johnson within 3 years from the date of this agreement, or in the event Johnson is called upon at any time to make any payment to creditors holding secured interests in the real property parcels, or required to pay delinquent taxes to taxing authorities to prevent the sale of the parcels for unpaid taxes, then the obligation of Johnson to transfer his ownership ^interest to Pierrotti shall, at the option of Johnson, be cancelled. All- of the other obligations of the parties in this agreement shall remain in force and effect, even if the obligations under Agreement # 6 are not fulfilled.

When the parties entered into the MSA on January 15, 2004, both parcels of property listed in Agreement # 6 were mortgaged, and neither Pierrotti nor Johnson owned any equity in the properties. At some point in early 2005, Pierrotti sought to refinance the Cloverland property and arranged, in accordance with Agreement # 6, for Johnson to be “fully released as a maker and guarantor of notes and all other obligations associated” with the Cloverland property. As further intended by the MSA, Johnson executed a document entitled “Act of Donation” on February 28, 2005, transferring his ownership interest in the Cloverland property to Pierrotti.

As evidenced by documents in the record, Johnson transferred his ownership interest in the Cloverland property to Pier-rotti, Johnson was released as a maker and guarantor on all loans and obligations associated with the Cloverland property, and Pierrotti secured a new mortgage on the Cloverland property, which paid off the existing mortgage. For the next 5 years, Pierrotti made monthly payments on the mortgage totaling over $200,000.00. Johnson never made a payment on the mortgage, nor was he ever called upon to make a payment on the Cloverland property.

According to the record, however, there was a problem with the Nelson property in early 2005. Johnson was contacted by the bank holding the mortgage on the Nelson property and informed that the note was 90 days past due. At that point, Johnson began making monthly payments on the Nelson property. Arbitration was invoked to enforce Agreement # 6 of the MSA. The arbitrator found that pursuant to Agreement # 6 of the MSA, because Johnson had been called upon to make payment on the Nelson property, his obligation to transfer his ownership interest in the property was cancelled. Thus, the arbitrator ruled in Johnson’s favor, cancelling Johnson’s obligation to transfer his ownership interest in the Nelson property to Pierrotti. The award of the arbitrator was signed November 15, 2005. Pierrotti then transferred ownership of the Nelson property to Johnson in exchange for Johnson reimbursing Pierrotti the amounts Pierrot-ti expended for mortgage payments on the Nelson property after the MSA became effective.

| ¿Subsequently, on July 30, 2010, Pier-rotti entered into a purchase agreement to sell the Cloverland property to a third party. During the buyer’s due diligence period, their attorney, Brett Furr, noticed that the title company that handled the refinancing on the Cloverland property had failed to properly record the “Act of Donation” that Johnson had signed transferring his interest in the Cloverland property to Pierrotti. Mr. Furr also noticed that only one witness had signed the “Act of Donation.” Mr. Furr contacted Johnson to obtain corrective documents. Mr. Furr was advised by Johnson’s attorney that Johnson would sign whatever was needed to be signed “in order to uncloud the title.” However, once Mr. Furr presented the documents for signing, Johnson refused to cooperate and acted to obstruct the sale.

On August 17, 2010, Pierrotti filed suit to clear the title to the Cloverland property and recover damages occasioned by Johnson’s actions. Named as defendants were Johnson, Prestige Title, Inc., the company that handled the refinancing of the Cloverland property, and Stephen Col-son, an employee of Prestige Title, Inc. Pierrotti sought a judgment finding that Johnson had transferred all ownership interest in the Cloverland property on February 28, 2005, and ordering that Johnson execute curative documents to formally notice the transaction. Pierrotti also requested damages for lost profits from the sale of the property and costs incurred relative to the lost sale.

In response to the petition, Johnson filed a general denial and exceptions raising the objections of res judicata and no cause of action. Johnson argued that the parties had previously arbitrated Agreement # 6 of the MSA, the section upon which Pierrotti based his alleged claims, and that the previous arbitration award between the parties barred Pierrotti’s suit due to its res judicata effect. The parties subsequently filed competing motions for summary judgment. All of the matters proceeded to hearing before the trial court on April 4, 2011. After hearing argument from the parties, the trial court made the following observations:
Warren Pierrotti, plaintiff, and Glenn Johnson, defendant, were business partners and co-owned two parcels of land, the Cloverland property and the Nelson property.
|fiIn 2003, Mr. Pierrotti and Mr. Johnson wanted to sever their business partnership. On January 15, 2004 they entered into a Master Settlement Agreement, which the Court will refer to as the M.S.A., to effect a formal separation of all ties between them, both business and personal.
Pursuant to Agreement Number 6 of the M.S.A., Mr. Johnson had an obligation to transfer his interest in either parcel of property as long as that transaction took place on or before January 16th of 2007, and Johnson was not called upon to make any payments to creditors holding secured interest in the property, or required to pay any delinquent taxes before the transfer of the ownership occurred. When the M.S.A. was signed by the parties after it was arbitrated, both the Cloverland and Nelson parcels of property listed in Agreement 6 were mortgaged with personal guarantees by both Pierrotti and Johnson.
In early 2005, the plaintiff sought to refinance the Cloverland property and arrange for Johnson to be fully released as a maker and guarantor of the notes and all other obligations associated with that parcel as required by the [M.S.A.].
The Johnsons claim that Agreement 6 of the [M.S.A.] required Pierrotti, as consideration for the transfer of the two properties, to secure Johnson’s release for the debts affecting both properties. They further claim that Johnson was not released from the obligation to creditors as agreed upon, and therefore, he wants to set aside the transfer at issue. In order to facilitate the transfer of the properties and to comply with the Agreement Number 6 of the [M.S.A.], Johnson executed a purported Act of Donation regarding the Cloverland property; however, the act was not properly recorded, and from there, the problems leading to this litigation ensued.
The Pierrottis now claim that Johnson attempted to or did, in fact, obstruct the sale of the properties for personal gain. The Johnsons have alleged that Pierrotti acted fraudulently.
The Court has carefully examined all the pleadings, the memorandums, exhibits and the law in connection with these exceptions and motions that have been presented to the Court today. Accordingly, the Court finds that the properties and the obligations were indivisible under the [M.S.A.] as consistently the two properties in question were referred to together throughout the [M.S.A.].
The Court hereby grants the exceptions of res judicata and finds that the no cause of action and the motions for summary judgment are moot. Counsel for the Johnsons is to prepare a judgment in accordance with these oral reasons [and] submit it for my signature ....

Judgment was signed by the trial court on May 2, 2011, sustaining the exceptions of res judicata and no cause of action filed by Johnson and dismissing, with prejudice, Pierrotti’s |ficlaims against Johnson. The motions for summary judgment filed by both parties were declared moot. This appeal by Pierrotti followed, wherein several issues relating to res judicata were raised for our review.

NO CAUSE OF ACTION

The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La.Code Civ. P. art. 927(A)(5). The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading. Ourso v. Wal-Mart Stores, Inc., 2008-0780, pp. 3-4 (La.App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 2008-2885 (La.2/6/09), 999 So.2d 785.

Generally, no evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. P. art. 931. However, as set forth in City Nat. Bank of Baton Rouge v. Brown, 599 So.2d 787, 789 (La.App. 1 Cir.), unit denied, 604 So.2d 999 (La.1992), the jurisprudence recognizes an exception to this rule, which allows the court to consider evidence which is admitted without objection to enlarge the pleadings. Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010, p. 5 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied, 97-1066 (La.6/13/97), 695 So.2d 982. Otherwise, the exception is triable on the face of the pleadings, and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Ourso, 2008-0780 at 4, 998 So.2d at 298. The court must determine if the law affords plaintiff a remedy under those facts. Stroscher v. Stroscher, 2001-2769, p. 3 (La.App. 1 Cir. 172/14/03), 845 So.2d 518, 523. Any doubts are resolved in favor of the sufficiency of the petition. Id.

An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. Lyons v. Terrebonne Parish Consol. Government, 2010-2258, p. 6 (La.App. 1 Cir. 6/10/11), 68 So.3d 1180, 1183.

The burden of demonstrating that a petition fails to state a cause of action is upon the mover. Foti v. Holliday, 2009-0093, p. 6 (La.10/30/09), 27 So.3d 813, 817. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the district court’s decision is based only on the sufficiency of the petition. Torbert Land Co., L.L.C. v. Montgomery, 2009-1955, p. 4 (La.App. 1 Cir. 7/9/10), 42 So.3d 1132, 1135, unit denied, 2010-2009 (La.12/17/10), 51 So.3d 16.

As previously discussed, the trial court expressed in its oral reasons for judgment that because it was granting the res judi-cata exception, it found that the no cause of action of exception was moot. Even the parties seemed to believe that the trial court did not rule on the no cause of action exception at the hearing, as both appeal briefs make reference to the trial court’s ruling on the exception as moot. However, in the May 2, 2011 judgment that has been appealed to this court, the trial court actually acted on the no cause of action exception and sustained same. We have reviewed the record before us and, accepting the well-pleaded allegations of fact in Pierrotti’s petition as true, we are satisfied that Pierrotti has stated a valid cause of action to clear the title to the Cloverland property. Accordingly, the trial court’s ruling on the no cause of action exception must be reversed.

\JtES JUDICATA

Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079; La. R.S. 13:4281. It promotes judicial efficiency and final resolution of disputes. Terrebonne Fuel & Lube, Inc. v. Placid Refining, Co., 95-0654, 95-0671, p. 12 (La.1/16/96), 666 So.2d 624, 631. Louisiana Revised Statutes 13:4231 provides for res judicata as follows:

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.

The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Avenue Plaza, L.L.C., 96-0173 at 6, 676 So.2d at 1080. However, the Louisiana Supreme Court has also emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action: (1) the first judgment is valid and final; (2) the parties are the same; (3) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (4) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 2004-0871, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception raising the objection of res judica-ta must be overruled and the second lawsuit maintained. Denkmann Associates v. IP Timberlands Operating Co., Ltd., 96-2209, p. 8 (La.App. 1 Cir. 2/20/98), 710 So.2d 1091, 1096, writ denied, 98-1398 (La.7/2/98), 724 So.2d 738. The concept should be rejected when doubt exists as to whether a plaintiffs substantive rights actually have been previously addressed and finally resolved. Patin v. Patin, 2000-0969, p. 5 (La.App. 1 Cir. 6/22/01), 808 So.2d 673, 676.

When, as here, an objection of res judicata is raised before the case is submitted and evidence is received on the objection, the standard of review on appeal is traditionally manifest error. Leray v. Nissan Motor Corp. in U.S.A., 2005-2051, p. 5 (La.App. 1 Cir. 11/3/06), 950 So.2d 707, 710. However, the res judicata effect of a prior judgment is a question of law that is reviewed de novo. Fogleman v. Meaux Surface Protection, Inc., 2010-1210, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059, writ denied, 2011-0712 (La.5/27/11), 63 So.3d 995. In the instant case, Pierrotti argues that the standard of review is de novo because, while the exception was raised prior to the case being heard, the trial court did not express any factual findings. To the contrary, Johnson contends that the trial court did make a factual finding that the properties and the obligations were indivisible under the MSA and that the standard of review as to this finding should be manifest error. We have reviewed the trial court’s brief oral reasons for judgment, in particular, the following statement by the trial court: “Accordingly, the Court finds that the properties and the obligations were indivisible under the [MSA] as consistently the two properties in question were referred to together throughout the [MSA].” We agree with Pierrotti that the trial court did not make any factual findings, but rather made a legal conclusion regarding the nature of the property and the obligations as set forth in the MSA. Therefore, we will conduct a de novo review to determine if the trial court was legally correct in sustaining the res judicata exception.

| inPierrotti initially argues on appeal that the exception of res judicata was not properly before the trial court for review because Johnson failed to file a supporting memorandum citing relevant facts and applicable law in accord with Uniform Rules — Louisiana District Courts, Rule 9.9(a). In addition, Pierrotti contends that Johnson was required, as the objecting party, to introduce the entire record of the underlying proceeding in order that the trial court could make a determination as to whether res judicata was appropriate. See Middleton v. Livingston Timber, Inc., 2010-1203, pp. 3-4 (La.App. 1 Cir. 2/11/11), 57 So.3d 590, 592-593. We find no merit to these arguments.

As correctly pointed out by Johnson in brief to this court, there is nothing in Rule 9.9(a) to support Pierrotti’s position that failure to file the required memorandum means the issue was not properly before the trial court. In fact, the only sanction found in Rule 9.9(a) for failure to file a supporting memorandum of law is that the offending party may forfeit the privilege of oral argument. Moreover, while the record is devoid of any memorandums either in support of or in opposition to the res judicata exception, there is nothing in the record to suggest that the trial court did not have sufficient evidence before it at the hearing on the exceptions to decide the issue. In fact, the tidal court started its findings with the following: “The Court has carefully examined all the pleadings, the memorandums, exhibits and the law in connection with these exceptions.... ” Thus, we find no merit to Pierrotti’s argument that the res judicata■ issue was not briefed by the parties and the trial court had insufficient evidence on which to base its ruling.

Next, Pierrotti argues that even if the trial court properly considered the res judicata issue, all the necessary elements of res judicata are not present in this case. Pierrotti contends that “while there may be an identity between the parties, it is not as clear as with the ‘cause’ and there is clearly a different ‘thing’ demanded.” Pi-errotti goes on to allege that although the underlying 2005 arbitration proceeding was predicated on the MSA, it dealt solely with the Nelson property and had nothing to do with the Cloverland property. We find merit to this argument.

In Although it is clear that the underlying arbitration proceeding and the instant claim by Pierrotti both stem from the MSA (i.e., the arbitration proceeding dealt with an alleged breach of Agreement # 6 that resulted in Johnson’s obligation to transfer his interest in the Nelson property being cancelled, and the instant claim by Pierrotti deals with a cloud in the title following the transfer of the Cloverland property from Johnson to Pierrotti pursuant to Agreement # 6), it is also clear that the arbitration award did not have any effect on the Cloverland property. Rather, the sole focus of the arbitration was the Nelson property. The arbitrator specifically cancelled Johnson’s obligation to transfer his ownership interest in the Nelson property to Pierrotti, stating, “The award is in full settlement of all claims and counterclaims submitted to this arbitration. All claims not expressly granted herein are hereby DENIED.” There are no references to the Cloverland property in the arbitrator’s award. Moreover, there is nothing in the record to suggest that the parties included the Cloverland property in the arbitration proceedings. Upon a thorough review of the record in this case, we find that the facts and circumstances presented do not come within the ambit of res judicata. The issue of the ownership of the Cloverland property or the title thereto was not raised, considered, or decided during the arbitration proceedings below. Thus, the trial court erred in dismissing Pierrotti’s petition based on res judicata.

CONCLUSION

For the above and foregoing reasons, we reverse the May 2, 2011 judgment of the trial court and remand for further proceedings consistent with this opinion. All costs associated with this appeal are assessed against defendants-appellees, Glenn Lee Johnson and Kim Graham Johnson.

REVERSED AND REMANDED.

      . We note that the trial court's written judgment does not comport with its oral reasons in that the no cause of action exception was sustained along with the res judicata exception in the written judgment. A trial court’s oral reasons for judgment form no part of the judgment itself, and when there is a conflict between the judgment and the reasons, the judgment controls. See Dean Classic Cars, L.L.C. v. Fidelity Bank and Trust Co., 2007-0935, p. 17 n. 9 (La.App. 1 Cir. 12/21/07), 978 So.2d 393, 402 n. 9. Neither party has raised this discrepancy as an issue on appeal. Nonetheless, pursuant to our authority under La. Code Civ. P. art. 2164 to render any judgment that is just, legal, and proper upon the record on appeal, we will address same.

      . Because we find that the trial court erred in sustaining the res judicata exception and reverse the judgment below, we pretermit consideration of the remaining assignments of error raised by Pierrotti on appeal.


author: KUHN, J.

text:
    STATE of Louisiana v. Kenya TAYLOR.
    No. 2011 CA 0373.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      J. Christopher Alexander, Sr., Baton Rouge, LA, for Plaintiff-Appellee Kenya Taylor.
    Harrietta J. Bridges, Baton Rouge, LA, for Defendant-Appellant Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   KUHN, J.

|2The State of Louisiana, Department of Public Safety and Corrections, Office of State Police, Bureau of Criminal Identification and Information (the Bureau) appeals a trial court judgment, which orders the expungement and destruction of “the record of arrest, photograph, fingerprint, or any other information of any and all kinds of descriptions,” relating to Kenya Taylor, in conjunction with Docket No. 1325-03, for possession with intent to distribute marijuana. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

After Taylor’s arrest by the Iberville Sheriffs Office, on May 4, 2004, she pled guilty to possession with intent to distribute marijuana. On August 2, 2004, she was sentenced to five years confinement with the Department of Public Safety and Corrections. The sentence was suspended, and she was placed on probation for five years. After Taylor completed her term of probation, apparently after a brief hearing, a minute entry entered into her criminal record on September 9, 2010, indicated that Taylor’s sentence was amended to reflect that she “be given the provisions of [La.C.Cr.P. art.] 893,” addressing suspension and deferral of sentence as well as probation in felony cases.

On October 15, 2010, which was subsequent to Taylor’s completion of probation, Taylor filed a motion with the trial court for expungement of all records related to her arrest and conviction. On October 18, 2010, apparently without any hearing, the trial court issued a judgment, ordering the expungement and destruction of Taylor’s arrest record. The Bureau appealed.

^EXPUNGEMENT

In their appellate briefs, the parties raise contentions regarding the trial court’s judgment insofar as it orders the expungement of Taylor’s conviction record. But that portion of the judgment appealed by the Bureau states:

Full legal name of the mover:
Social Security Number
Sex and Race of the mover:
Date of birth of the mover:
Arresting Agency:
Approximate Date of Arrest:
Arrest tracking number (ATN:)
SID number of mover:
CCN of mover:
Docket Number:
Item Number:
Ticket Number:
Current address of mover:
City, State, Zip code:

We do not interpret the language of the judgment as an order of expungement of Taylor’s conviction record particularly given the trial court’s use of the phrase “record of arrest.” Thus, the trial court implicitly denied Taylor’s request for an expungement of her conviction record and, because she did not appeal that denial, it is not properly before us in this appeal. We turn now to our review of the trial court’s order of expungement of Taylor’s arrest record.

|4The Department contends that the trial court improperly ordered the expungement of Ms. Taylor’s arrest record because her sentence was suspended and, therefore, not eligible for expungement.

La. R.S. 44:9 governs the expungement and destruction of criminal records, providing in relevant part,

IT IS ORDERED by the court that all agencies and law enforcement officers ...

Expunge and destroy the record of arrest, photograph, fingerprint, or any other information of any and all kinds of descriptions, relating to the following:

Kenya Taylor
[* * *-* *-* * * *|
Female/Black
July 13,1980
Iberville Sheriff
October 19, 2003
Unknown
Unknown
Unknown
1325-03
N/A
N/A
/»*****»*]
l* * * * *, LA * * * * V

B. (1) Any person who has been arrested for the violation of a felony offense ... may make a written motion to the district court for the parish in which he was arrested for the expungement of the arrest record if:

(a) The district attorney declines to prosecute, or the prosecution has been instituted, and such proceedings have been finally disposed of by acquittal, dismissal, or sustaining a motion to quash....

E. (1)....

(b) After a contradictory hearing with the district attorney and the arresting law enforcement agency, the court may order expungement of the record of a felony conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.

■The record establishes that Taylor’s prosecution was instituted and was not finally disposed of by acquittal, dismissal, or sustaining of a motion to quash. Therefore, the provisions of La. R.S. 44:9 B(l)(a) do not apply.

Pointing out that the district attorney has stated that he “has no objection” to her receiving all the relief to which she is entitled by law, Taylor urges entitlement to expungement of her arrest record under La. R.S. 44:9 E(l)(b) since the trial court amended her sentence to give her the provisions of La.C.Cr.P. art. 893. She urges that under the provisions of La.C.Cr.P. art. 893, addressing suspension of sentence, |fishe is “per se qualified” for ex-pungement. La.C.Cr.P. art. 893 has been amended since 2003, when Taylor was arrested, and September 9, 2010, when the trial court amended her sentence to give her the benefit of La.C.Cr.P. art. 893. But under either version, we find nothing that entitles her to per se qualification for an expungement of her arrest record due to the trial court’s order of suspension.

|„We note that by its express terms, La. R.S. 44:9 E(l)(b) applies only to a record of felony conviction, not that of an arrest record. But to the extent that Taylor’s record of felony conviction contains any portion of her arrest record, we find Taylor is not entitled to an expungement under those provisions.

The applicable provisions of La.C.Cr.P. art. 893 provide, in part,

(l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense which is defined or enumerated as a crime of violence ... or a sex offense ... involving a child under the age of seventeen years or for a violation of the Uniform Controlled Dangerous Substances Law punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumu-lation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.

Unlike the provisions of La.C.Cr.P. art. 893 addressing suspension of sentence, these provisions allow a sentencing court to defer the imposition of sentence and Lexpressly permit later dismissal of the prosecution, which has “the same effect as acquittal.” See La.C.Cr.P. art. 893 E(2).

Taylor’s criminal record clearly establishes that on May 4, 2004, the trial court suspended her sentence; it did not defer it. As such, she is not entitled to expungement of her record of felony conviction under the provisions of La. R.S. 44:9 E(1)(b). See State v. Oliver, 38,520 (La.App.2d Cir.5/12/04), 874 So.2d 365, 367-68; State v. Green, 2008-273 (La. App.5th Cir.9/30/08), 997 So.2d 42, 44-45. As such, to the extent that her record of felony conviction contains any portion of her arrest record, she is not entitled to its expungement. Accordingly, that portion of the judgment, which orders expungement of Taylor’s arrest record is reversed.

DESTRUCTION

The Bureau also complains of the order of destruction of Taylor’s arrest record, suggesting that the trial court erred in granting that relief. And in her appellate brief, Taylor concedes that the order of destruction of the record does not comply with the law.

La. R.S. 44:9 E(l)(a) states:

No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.

The word “expungement” is distinct from the word “destruction,” and the two words cannot be used interchangeably or to mean the same thing. Public records which may be “expunged” need not be “destroyed.” State v. Expunged Record (No.) 249,044, 2003-1940 (La.7/2/04), 881 So.2d 104, 108 (citing State v. Savoie, 92-1586 (La.5/23/94), 687 So.2d 408, 410). Ex-pungement is defined to mean removal of a record from public access, but it does not mean destruction of the record. An expunged record is confidential but remains available for use by law enforcement agencies and other specified persons and agencies. See La. R.S. 44:9 G. In light of the plain language of La. R.S. 44:9 E(l)(a), we find no authority for the order of destruction of the record relating to Taylor’s arrest for possession with intent to distribute marijuana. Accordingly, that portion of the judgment ordering the destruction of Taylor’s arrest record is reversed.

DECREE

The Bureau’s appeal is maintained. For these reasons, the order of expungement and destruction of Taylor’s record of arrest, photograph, fingerprint, or any other information of any and all kinds of descriptions relating to Taylor’s arrest in conjunction with Docket No. 1825-03 is reversed. Appeal costs are assessed against Kenya Taylor.

APPEAL MAINTAINED; JUDGMENT REVERSED.

      . An order to show cause why the appeal should not be dismissed was issued by this court in conjunction with that judgment, and the issue of whether dismissal was warranted was ultimately referred to the merits of our review. Because the deficiency initially noted has been cured with the passage of time, we maintain the appeal.

      . The Bureau has a real and actual interest in maintaining the integrity of the public records relating to criminal offenses. See State v. Daniel, 39,633 (La.App.2d Cir.5/25/05), 903 So.2d 644, 649.

      . In 2003, La.C.Cr.P. art. 893 stated in part,
      A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first ... conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.... The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal.
      B. If the sentence consists of a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.
      C. Except as otherwise provided by law, the court shall not suspend a felony sentence after the defendant has begun to serve the sentence.
      In September 2010, La.C.Cr.P. art. 893 was amended to provide in part,
      A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole.... The period of probation shall be specified and shall not be less than one year nor more than five years. The suspended sentence shall be regarded as a sentence for the purpose of granting or denying a new trial or appeal....
      C. If the sentence consists of both a fine and imprisonment, the court may impose the fine and suspend the sentence or place the defendant on probation as to the imprisonment.
      D. Except as otherwise provided by law, the court shall not suspend a felony sentence after the defendant has begun to serve the sentence.
      We find Taylor's reliance on La.C.Cr.P. art. 893 B(I)(a)(i)(bb) misplaced as that provision clearly addresses the suspension of sentence for third conviction violations of the Uniform Controlled Dangerous Substances Law, and does not purport to per se qualify her for an expungement of her arrest record.

      . La. Acts 2006, No. 581, § 1 inserted par. B, and designated former pars. B to E as pars. C to F, respectively. Thus, these quoted provisions of La.C.Cr.P. art. 893 appeared in par. D in 2003 and in par. E after the amendment.

      . Specifically, Taylor notes in her brief that her motion for expungement only sought removal of her records from public access. But the order that was ultimately presented to the trial court included both the expungement and "destruction of the record” language.


author: McCLENDON, J.

text:
    BATON ROUGE GENERAL MEDICAL CENTER v. LOUISIANA RESTAURANT ASSOCIATION, Self Insurers Service Bureau and Bobbie Harrell.
    No. 2011 CA 0625.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      John S. Bradford, Lynsay M. Fontenot, Thomas A. Filo, Lake Charles, LA, for Plaintiff/Appellant Baton Rouge General Medical Center.
    Stephen W. Glusman, Stephen Broyles, Baton Rouge, LA, for Defendants/Appel-lees Louisiana Restaurant Association Self Insurers Fund.
    Before PETTIGREW, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

|2In this workers’ compensation case, a health care provider appeals a judgment sustaining a peremptory exception raising the objection of prescription as to its claim for penalties and attorney fees. In light of our recent decision in St. Tammany Parish Hospital v. Trinity Marine Products, Inc., 10-1481 (La.App. 1 Cir. 2/16/12), 91 So.3d 985 (en banc), we reverse and remand.

In 2006, Baton Rouge General Medical Center (Baton Rouge General) provided medical services to Bobbie Harrell after he was injured at work. After receiving what it considered to be only partial payment for its services from Mr. Harrell’s employer and the Louisiana Restaurant Association Self Insurers Fund (collectively, the employer) on or about February 8, 2007, Baton Rouge General filed a disputed claim for compensation on August 26, 2008. In addition to the unpaid portion of its fees for services, Baton Rouge General also asserted a claim for penalties and attorney fees pursuant to LSA-R.S. 23:1201 F.

In response, the employer filed a peremptory exception raising the objection of prescription, arguing that the disputed claim was filed more than one year after the alleged underpayment was made, and the claim for penalties and attorney fees was therefore prescribed. The Office of Workers’ Compensation (OWC) sustained the exception as to the claim for penalties and attorney fees, and Baton Rouge General appealed.

In St. Tammany Parish Hospital, a plurality of this court, citing LSA-R.S. 23:1201 F, reasoned that “it is the employer’s (or the insurer’s) failure to | ^provide the payment of the medical benefit within the time period required for the payment of that medical benefit under [LSA-]R.S. 23:1201 that triggers the health care provider’s entitlement to a penalty.” That plurality, therefore, concluded that “this is when the health care provider’s claim for penalties and attorney fees arises or accrues.” St. Tammany Parish Hospital, 10-1481 at p. 8, 91 So.3d at 990. The plurality held that under LSA-R.S. 23:1209 C, the health care provider’s claim for the underpayment of medical benefits prescribed at the expiration of three years from the time of making the last payment of medical benefits. St. Tammany Parish Hospital, 10-1481 at p. 10, 91 So.3d at 991-92.

In this matter, the uncontroverted evidence established that the employer’s “last payment” was made to Baton Rouge General on February 8, 2007. Baton Rouge General filed its claim for the underpayment of its fee and for penalties and attorney fees on August 26, 2008, well within the three-year prescriptive period.

Another plurality of this court in St. Tammany Parish Hosp. reached the same result but applied a different rationale. That plurality emphasized the delic-tual nature of the claim for penalties and attorney fees, and suggested that because LSA-23:1201F, creating the cause of action for the health care provider’s claim, does not provide a time period within which to assert the claim, the one-year prescriptive period of LSA-C.C. art. 3492 was the applicable prescriptive period. While pointing out that under Article 3492, the prescriptive period commences the date that the injury or damage is sustained, that plurality |4noted that prescription cannot run against a cause of action that has not accrued or while the cause of action cannot be exercised. St. Tammany Parish Hospital, 10-1481, 91 So.3d at 992-93 (Carter, C.J., concurring). Because a health care provider may only be awarded penalties and attorney fees “[i]n the event that [it] prevails on a claim for payment of his fee,” that plurality held that the health care provider’s claim does not begin to accrue until the health care provider has prevailed on its claim for payment of its fee. Id.

Applying this rationale to the matter before us, because it was not until the employer paid the full amount of the fee on September 21, 2010, that Baton Rouge General prevailed on its claim for payment of its fee, the instant suit filed on February 8, 2008, was timely asserted.

Accordingly, under either rationale, Baton Rouge General’s claim was timely asserted. Therefore, the decision of the OWC sustaining the peremptory exception raising the objection of prescription as to Baton Rouge General’s claim for penalties and attorney fees is reversed, and this matter is remanded to the OWC for further proceedings. Costs of this appeal are assessed to the Louisiana Restaurant Association Self Insurers Fund and Bobbie Harrell.

REVERSED AND REMANDED.

      . After the peremptory exception raising the objection of prescription was sustained, the employer tendered the disputed underpayment amount ($1091.49) plus interest thereon ($122.42), for a total amount of $1213.91, to Baton Rouge General. Thereafter, the OWC signed a summary judgment dismissing the claim.

      . Louisiana Revised Statutes 23:1201 provides, in relevant part:
      E. Medical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof. F. Failure to provide payment in accordance with this Section ... shall result in the assessment of a penalty....

      (4) In the event that the health care provider prevails on a claim for payment of his fee, penalties as provided in this Section and reasonable attorney fees based upon actual hours worked may be awarded and paid directly to the health care provider. This Subsection shall not be construed to provide for recovery of more than one penalty or attorney fee.

      . Louisiana Revised Statutes 23:1209 C provides:
      All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits.


author: CARTER, C.J.

text:
    Clarence GATEN v. TANGIPAHOA PARISH SCHOOL SYSTEM and Aaron C. Jackson.
    No. 2011 CA 1133.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.
    Thomas A. Gennusa, II, Joseph S. Pia-cun, Reid S. Uzee, Metairie, LA, for Plaintiff/Appellant, Clarence Gaten.
    Ashley E. Sandage, Brooke E. Dufour, Hammond, LA, for Defendant/Appellee, Tangipahoa Parish School System.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

12This is an appeal of a summary judgment granted in favor of Defendant/Appel-lee, Tangipahoa Parish School System. For the following reasons, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

Plaintiff/Appellant, Clarence Gaten, owns and leases a school bus to the Tangi-pahoa Parish School System (“TPSS”). In April 2008, Aaron C. Jackson, a substitute bus driver, was operating Gaten’s bus when its engine began to overheat. Gaten filed a petition for damages against TPSS and Jackson, alleging that Jackson failed to stop the bus or otherwise take action “even after smoke began pouring from the engine” and that Jackson’s failure to take action caused permanent damage to the school bus, rendering it inoperable and a total loss. Gaten further alleged that TPSS was vicariously liable for Jackson’s conduct.

TPSS filed a motion for summary judgment, requesting that Gaten’s claims against it be dismissed. In support of its motion, TPSS claimed that pursuant to a lease agreement between Gaten and TPSS, Gaten agreed that he would be solely responsible for maintenance of the bus, would accept all risks for damage to the bus, and would hold TPSS harmless from liability in connection with damage to the bus. In opposition to the motion, Gaten argued that the lease provision limiting TPSS’s liability for damages to the school bus was only applicable when the bus was being used for unauthorized transportation services. Gaten asserted that Jackson’s use of the bus to transport students to school was authorized, and therefore, TPSS was liable for the damage.

| s After a hearing, the district court signed a judgment granting TPSS’s motion for summary judgment. It is from this judgment that Gaten appealed.

This court, ex propria motu, examined the district court record and issued a rule to show cause why the appeal should not be dismissed because the judgment of the district court lacked the appropriate decre-tal language disposing of or dismissing the claims of Gaten against TPSS. In response, Gaten filed an unopposed motion to supplement the record with an amended judgment. The amended judgment includes language designating the judgment as a final judgment pursuant to Louisiana Code of Civil Procedure article 1915, but still lacks appropriate decretal language. The judgment simply states that the “Motion for Summary Judgment is GRANTED.”

DISCUSSION

Appellate courts have the duty to determine sua sponte whether their subject matter jurisdiction exists, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-1351 (La.App. 1 Cir. 10/22/08), 867 So.2d 723, 725. Under Louisiana law, a final judgment is one that determines the merits of a controversy in whole or in part. La.Code Civ. Proc. Ann. art. 1841. A final judgment must be identified as such by appropriate language. La.Code Civ. Proc. Ann. art. 1918. A valid judgment must be precise, definite, and certain. Laird v. St. Tammany Parish Safe Harbor, 02-0045 (La.App. 1 Cir. 12/20/02), 836 So.2d 364, 365. A final appealable judgment must contain decretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 01-2016 (La.App. 1 Cir. 11/27/02), 837 So.2d 43, 44. These determinations should be evident from the language of a judgment without reference to other documents in the record. Laird, 836 So.2d at 366. The amended judgment, like the first judgment, does not contain proper decretal language. Specifically, although the judgment grants TPSS’s motion for summary judgment, it does not specify what that relief entails. In the absence of such decretal language, the judgment before us is defective and cannot be considered as a “final judgment.” See Carter, 837 So.2d at 44. In the absence of a final judgment, this court lacks jurisdiction to review this matter. Laird 836 So.2d at 366.

CONCLUSION

For the foregoing reasons, the appeal of the judgment of the district court granting Tangipahoa Parish School System’s motion for summary judgment is dismissed. Costs of this appeal are assessed to Plaintiff/Appellant, Clarence Gaten.

MOTION TO SUPPLEMENT GRANTED. APPEAL DISMISSED.


author: GUIDRY, J.

text:
    STATE of Louisiana v. William O. JENKINS, II.
    No. 2011 KA 1436.
    Court of Appeal of Louisiana, First Circuit.
    March 23, 2012.

      Walter P. Reed, District Attorney, Cov-ington, LA, for Appellee State of Louisiana.
    Kathryn Landry, Special Appeals Counsel, Frederick H. Kroenke, Jr., Appellate Attorney, Baton Rouge, LA, for Defendant/Appellant William 0. Jenkins, II.
    Before WHIPPLE, KUHN, and GUIDRY, JJ.
   GUIDRY, J.

|2The defendant, William 0. Jenkins, II, was charged by amended bill of information with one count of driving while intoxicated (DWI), third-offense, a violation of La. R.S. 14:98. He initially pled not guilty and moved to quash the bill. Following the denial of his motion to quash, he pled guilty, reserving his right to seek review of the court’s ruling on the motion to quash. See State v. Crosby, 338 So.2d 584, 588 (La.1976). Pursuant to a plea agreement, he was sentenced to five years at hard labor, with one year without benefit of parole.

On appeal, defense counsel initially filed a brief presenting no assignments of error and stating it was filed to conform with the procedures outlined in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241 (per curiam); see also State v. Benjamin, 573 So.2d 528, 530-31 (La.App. 4th Cir.1990). Defense counsel also filed a motion to withdraw; however, because the defendant had reserved his right to appeal the denial of his motion to quash under Crosby, this court denied the motion and ordered defense counsel either to file a new brief arguing the denial of the motion to quash or to file a letter certifying that he had discussed the issue with the defendant, and the defendant agreed to waive appellate review of the denial of his motion to quash. Thereafter, defense counsel filed a supplemental brief challenging the denial of the motion to quash. For the following reasons, we affirm the conviction and sentence.

IsFACTS

No factual basis appears in the record because the State and the defense stipulated a factual basis existed for the defendant’s guilty plea. The bill of information charged the offense was committed on July 11, 2010.

MOTION TO QUASH

In his sole assignment of error, the defendant contends the trial court erred in denying the motion to quash. He argues the advice of the privilege against self-incrimination given in connection with predicate # 1 failed to satisfy the requirements of State v. Martin, 382 So.2d 933, 936 (La.1980).

When a trial court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of the trial court’s discretion. See State v. Odom, 02-2698, p. 6 (La.App. 1st Cir.6/27/03), 861 So.2d 187, 191, writ denied, 03-2142 (La.10/17/03), 855 So.2d 765. However, a trial court’s legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, p. 3 (La.7/6/00), 766 So.2d 501, 504.

In order for a guilty plea to be used as a basis for actual imprisonment, enhancement of actual imprisonment, or conversion of a subsequent misdemeanor into a felony, the trial judge must inform the defendant that by pleading guilty, he waives: (a) his privilege against compulsory self-incrimination; (b) his right to trial and jury trial where applicable; and (c) his right to confront his accuser. The judge must also ascertain that the accused understands what the plea connotes and its consequences. State v. Henry, 00-2250, p. 8 (La.App. 1st Cir.5/11/01), 788 So.2d 535, 541, writ denied, 01-2299 (La.6/21/02), 818 So.2d 791. If the defendant denies the allegations of the bill of information, the State has the initial burden to prove the existence of the prior guilty plea and that the defendant was represented |4by counsel when it was taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea reverts to the State. See State v. Carlos, 98-1366, pp. 6-8 (La.7/7/99), 738 So.2d 556, 559-60.

To meet this requirement, the State may rely on a contemporaneous record of the guilty plea proceeding, ie., either the transcript of the plea or the minute entry. Everything that appears in the entire record concerning the predicate, as well as the trial judge’s opportunity to observe the defendant’s appearance, demeanor, and responses in court, should be considered in determining whether or not a knowing and intelligent waiver of rights occurred. Henry, 00-2250 at 8, 788 So.2d at 541. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969) only requires that a defendant be informed of the three rights enumerated above. The jurisprudence has been unwilling to extend the scope of Boykin to include advising the defendant of any other rights which he may have. Henry, 00-2250 at 8-9, 788 So.2d at 541. When a defendant is represented by counsel, the trial court accepting his guilty plea may presume that counsel has explained the nature of the charge in sufficient detail that the defendant has notice of what his plea asks him to admit. The ultimate inquiry under Boykin is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. State v. Juniors, 03-2425, pp. 60-61 (La.6/29/05), 915 So.2d 291, 334-35, cert. denied, 547 U.S. 1115, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006).

The purpose of the rule of Carlos (which extended the burden-shifting principles delineated in State v. Shelton, 621 So.2d 769 (La.1993), to the recidivist portions of the DWI statute) is to demarcate sharply the differences between direct review of a conviction resulting from a guilty plea, in which the ^appellate court may not presume a valid waiver of rights from a silent record, and a collateral attack on a final conviction used in a subsequent recidivist proceeding, as to which a presumption of regularity attaches to promote the interests of finality. See State v. Deville, 04-1401, pp. 3-4 (La.7/2/04), 879 So.2d 689, 690-91 (per curiam).

Martin involved a State appeal following the granting of a motion to quash. The State had charged the defendant with possession of a firearm after being convicted of simple burglary. The defendant moved to quash, contending the simple burglary conviction had been obtained through a guilty plea that was invalid because he had not been adequately informed of his right against self-incrimination. Martin, 382 So.2d at 934. The court in Martin noted the transcript of the simple burglary guilty plea indicated the sole reference to the defendant’s right against self-incrimination was as follows:

Now, you also waive your right by not going to trial you waive your right to question witnesses against you. By pleading guilty, you’re also waiving your right to remain silent because you’re not remaining silent when you plead guilty. Do you understand that?

Martin, 382 So.2d at 935.

The court in Martin found the above advice insufficient to advise the defendant of his privilege against self-incrimination because it directed his attention “only to the immediate non-trial aspect of this privilege and its waiver, omitting any reference to the defendant’s right to stand trial without being forced to testify against himself.” Martin, 382 So.2d at 936. In a subsequent decision, the Louisiana Supreme Court held, “[i]n its more recent decision, this court has moved away from [application of Martin ] as a rigid rule.” Yarbrough, 418 So.2d at 510. Additionally, this court has distinguished Martin on the basis of “the context in which [the privilege against self-incrimination] is placed[.]” See State v. Foy, 00-2521, p. 5 (La.App. 1st Cir.6/22/01), 808 So.2d 735, 738.

|fiIn the instant case, the transcript of predicate # 1 indicates that at the time of defendant’s plea to DWI, second offense: the defendant was represented by counsel; he was twenty-eight years old; he had been in school until the 10th grade, and had then obtained his GED; and he could read, write, speak, and understand the English language. The trial court advised the defendant as follows:

[Court]: Do you understand what’s happening today?
[Defendant]: Yes, sir.
[Court]: You have a right to an attorney. You have a right to go to trial at which the State must prove your guilt beyond a reasonable doubt.
You have a right to confront and cross-examine the witnesses who accuse you of having committed the offense. You also have a right to subpoena witnesses in your own defense. You have a right or a privilege against self-incrimination.
If you were convicted, you would have a right to appeal your conviction to the higher courts. And you would have a right to be represented on appeal. And again, if you couldn’t afford an attorney, the Court would appoint an attorney to represent you at every stage of the appellate process.
Do you understand those rights?
[Defendant]: Yes, sir.
[Court]: Do you waive or give up all those rights?
[Defendant]: Yes, sir.

There was no abuse of discretion or error in the denial of the motion to quash. Consideration of everything that appears in the record convinces us the defendant knowingly and intelligently waived his rights in pleading guilty to predicate # 1. The State not only met its initial burden to prove the existence of the prior guilty plea and that the defendant was represented by counsel when the plea was taken, it also produced a contemporaneous record of the guilty plea proceedings indicating the defendant knowingly and intelligently waived his Boykin rights. The defendant failed to produce any affirmative evidence showing |7an infringement of his rights or a procedural irregularity in the taking of the plea in question.

The facts in this case are much closer to the facts in Foy, than those in Martin. The predicate # 1 court’s explanation to the defendant that “[y]ou have a right or a privilege against self-incrimination” sufficiently advised the defendant of his privilege against self-incrimination at trial. The court had already advised the defendant of his right to confrontation, cross-examination, and compulsory process, and thus, the court’s reference to the defendant’s privilege against self-incrimination obviously referred to that privilege at trial. See Foy, 00-2521 at 5, 808 So.2d at 738. Further, the bill of information concerning predicate # 1, listed an earlier DWI guilty plea by the defendant, indicating he was experienced with pleading guilty to DWI. See Foy, 00-2521 at 5, 808 So.2d at 738. Additionally, the defendant, with representation by counsel, indicated he understood what was occurring, understood his rights, and waived those rights. See Foy, GO-2521 at 5, 808 So.2d at 738.

Thus, considering all of the circumstances, we find that the defendant was adequately informed of his right against self-incrimination and therefore reject the defendant’s sole assignment of error. Accordingly, we affirm the defendant’s conviction and sentence.

CONVICTION AND SENTENCE AFFIRMED.

      . Predicate # 1 was set forth as the defendant's June 23, 1999 conviction, under Twenty-second Judicial District Court Docket # 302973, for DWI. Predicate # 2 was set forth as the defendant's October 22, 2001 conviction, under Twenty-second Judicial District Court Docket # 337075, for DWI.

      . Benjamin set forth a procedure to comply with Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), wherein the U.S. Supreme Court discussed how appellate counsel should proceed when, upon conscientious review of a case, counsel found the case wholly frivolous.

      . Martin was overruled in State v. Williams, 392 So.2d 448, 450 (La.1980), which held a defendant charged with possession of a firearm by a convicted felon under La. R.S. 14:95.1 cannot collaterally attack his prior conviction in the trial of that offense. See State v. Yarbrough, 418 So.2d 503, 510 n. 3 (La. 1982).