author: WILLIAMS, J.

text:
    Willie F. FOX, Plaintiff-1st Appellant v. REYNOLDS INDUSTRIAL CONTRACTORS, INC., Defendant-2nd Appellant.
    No. 46,695-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 16, 2011.

      Mark K. Manno, Shreveport, LA, for 1st Appellant.
    Donald J. Anzelmo, Monroe, LA, for 2nd Appellant.
    Before WILLIAMS, MOORE and LOLLEY, JJ.
   WILLIAMS, J.

|,The claimant, Willie Faye Fox, appeals a summary judgment granted in favor of the defendant, Reynolds Industrial Contractors (“Reynolds”). The judgment, in the alternative, also granted the defendant’s exception of no cause of action. The defendant appeals the denial of its exception of prescription. For the following reasons, we reverse the judgment granting defendant’s exception of no cause of action or alternatively, motion for summary judgment, affirm the judgment denying the defendant’s exception of prescription and remand.

FACTS

In January 1996, the claimant was injured while working as a secretary for the defendant, Reynolds. The defendant paid the claimant temporary total disability benefits until November 1, 1997, and supplemental earnings benefits (“SEB”) through September 30, 2001, when all benefits were terminated. The employer and claimant then filed disputed claims for compensation that were consolidated for hearing in July 2003. Two years later, the workers’ compensation judge (“WCJ”) rendered judgment denying claimant any further benefits. On appeal, this court reversed that part of the judgment denying benefits and awarded SEB of $150 per week for six weeks. Reynolds Industrial Contractors v. Fox, 41,051 (La.App.2d Cir.6/28/06), 935 So.2d 783.

In July 2007, claimant filed another claim for compensation seeking medical treatment and wage benefits. The defendant filed exceptions of prescription and res judicata. After a hearing, the WCJ granted defendant’s exception of res judi-cata and declined to rule on the prescription issue. On | ^appeal, this court affirmed that part of the judgment granting res judicata as to medical benefits, but found that res judicata did not apply to the modification of indemnity benefits. This court remanded the matter for determination of the prescription issue. Fox v. Reynolds Industrial Contractors, 44,938 (La.App.2d Cir.1/27/10), 33 So.3d 895. On remand, the WCJ denied the exception of prescription.

The defendant then filed an exception of no cause of action or alternatively, a motion for summary judgment. At the hearing, the WCJ stated that granting summary judgment would avoid a trial and be the “easiest way” to have the issue resolved. The WCJ rendered judgment granting the exception of no cause of action or alternatively, granting summary judgment in favor of the defendant. The claimant appeals the judgment. Defendant appeals the denial of the exception of prescription.

DISCUSSION

The claimant contends the WCJ erred in granting the exception of no cause of action. Claimant argues that her claim for additional SEB based on a change in her medical condition stated a valid cause of action to modify the previous award of indemnity benefits.

The function of the exception of no cause of action is to test the sufficiency of the petition by determining whether the law affords a remedy on the facts alleged. The court reviews the petition and accepts well-pleaded allegations of fact as true. Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058. The burden of demonstrating that the petition states no cause of action is upon the mover. Appellate courts ^conduct a de novo review because the exception raises a question of law. Wright, supra. Upon the application of any party in interest, on the ground of a change in conditions, the WCJ may review any award and on such review, may make an award ending, diminishing or increasing the compensation previously awarded. LSA-R.S. 23:1310.8(B).

In this case, the parties do not dispute that in July 2007, the claimant filed a claim for additional SEB, thereby seeking to modify the previous award of benefits made by this court in Reynolds, supra. Thus, under Section 1310.8(B), the claimant stated a cause of action to modify the prior award of compensation on the grounds of an alleged change in conditions, as this court found in Fox, supra. Consequently, the WCJ erred in granting the defendant’s exception of no cause of action.

Prescription

The defendant contends the WCJ erred in denying its exception of prescription. Defendant argues that claimant’s action has prescribed because her second claim for compensation was filed more than one year after this court’s decision awarding claimant benefits on June 28, 2006.

LSA-R.S. 23:1310.8(D) provides that a claim to modify a judgment awarding benefits shall be subject to the prescriptive periods of LSA-R.S. 23:1209. Workers’ compensation claims are barred unless filed within one year from the last payment of compensation benefits for total disability and three years for SEB payments. LSA-R.S. 23:1209(A)(2). Prescription statutes, including the statute applicable to workers’ compensation claims, are construed in favor of maintaining rather than barring actions. Reinhardt v. City of New Orleans (NOPD), 09-1116 (La.App.4th Cir.1/13/10), 30 So.3d 229. The purpose of the workers’ compensation modification statute is to allow adjustments to be made after judgment to ensure that the claimant will be paid compensation during the full period of her disability and that the employer will not be required to pay for any longer than this disability period. Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 399.

The defendant contends in its appellate brief that under Section 1310.8(D), which refers to the prescriptive limits of Section 1209, claimant was required to file her claim for modification within one year of this court’s decision in Reynolds, supra, rendered June 28, 2006. However, Section 1209(A)(2) expressly provides a three-year limitation period for claims involving SEB. In Reynolds, supra, this court awarded payment of SEB. Thus, the three-year limitation period of Section 1209(A)(2) is applicable to claimant’s petition to modify the prior award of SEB. Consequently, the claim for modification filed by claimant in July 2007 was timely. The defendant’s assignment of error lacks merit.

Summary Judgment

The claimant contends the WCJ erred in granting summary judgment. Claimant argues that although benefits were not paid for more than two years, the issue of whether SEB were payable remains a genuine issue of material fact precluding summary judgment.

Louisiana workers’ compensation law provides that an employee who suffers a workplace injury and becomes unable to earn 90% of her prejinjury6 wage is entitled to receive SEB. LSA-R.S. 23:1221(3)(a); Dufrene v. Video Co-Op, 02-1147 (La.4/9/03), 843 So.2d 1066. The right to SEB shall not exceed a maximum of 520 weeks, but such benefits shall terminate as of the end of any two-year period commencing after termination of temporary total disability (“TTD”), unless SEB were payable during at least thirteen consecutive weeks of that time period. LSA-R.S. 23:1221(3)(d)(i).

In the present case, defendant asserts that the claimant’s right to SEB has terminated because this court’s award of six weeks of SEB was in effect a denial of any additional benefits for this injury. However, that assertion is not consistent with this court’s determination in Reynolds that the claimant could seek a modification of the award due to a change in her condition, citing Section 1310.8.

The defendant also contends this court’s award of SEB to claimant “ended” in mid-October 2000, so that by the time of trial in July 2003, two years had passed without SEB having been payable. However, the statutory language does not support defendant’s computation of the two-year period. Section 1221(3)(d)(i) terminates SEB at the end of any two-year period commencing after the last TTD payment, which was November 1, 1997, unless thirteen consecutive weeks of SEB were payable. As a result, in this case the initial two-year period was November 1997 to November 1999 and the next was November 1999 to November 2001. Because SEB were paid through September 2001, the relevant two-year period in this case is November 2001 through November 2003.

Thus, contrary to the defendant’s contention, the claimant’s eligibility | fifor SEB did not terminate in July 2003, as there were still approximately four months remaining in the applicable two-year period. As this court noted in Fox, supra, the claimant obtained a second deposition of Dr. Kathleen Majors indicating that the claimant’s incapacity was permanent rather than temporary, as originally thought by the doctor. Based upon this record, a genuine issue of material fact exists as to whether the claimant’s condition has changed such that SEB were payable for thirteen consecutive weeks during the period from July through November 2003. Consequently, the WCJ erred in granting summary judgment. Accordingly, we shall remand this matter for trial on the issue of whether claimant is entitled to a modification of the prior award of benefits.

CONCLUSION

For the foregoing reasons, the judgment of the Office of Workers’ Compensation (“OWC”) granting defendant’s exception of no cause of action or alternatively, motion for summary judgment, is reversed. The OWC judgment denying the defendant’s exception of prescription is affirmed. This matter is remanded to the OWC for trial on the issue of whether claimant is entitled to a modification of the award of benefits. All costs incurred in the OWC and on appeal are assessed to the defendant, Reynolds Industrial Contractors.

JUDGMENT GRANTING SUMMARY JUDGMENT, OR ALTERNATIVELY, EXCEPTION OF NO CAUSE OF ACTION REVERSED; JUDGMENT DENYING EXCEPTION OF PRESCRIPTION AFFIRMED; REMANDED.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    Rita NIVENS, Plaintiff-Appellee v. David FIELDS, Defendant-Appellant.
    No. 46,524-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 16, 2011.

      David Fields, In Proper Person.
    Street & Street, by C. Daniel Street, Monroe, LA, for Appellee.

      Before BROWN, STEWART and LOLLEY, JJ.
   STEWART, J.

hln this workers’ compensation case, the defendant-appellant, David Fields, is appealing a judgment awarding plaintiff-ap-pellee, Rita Nivens, both medical and indemnity benefits, as well as penalties and attorney’s fees. For the reasons assigned below, we affirm.

FACTS

On December 2, 2008, in Ouachita Parish, one of Nivens’s fingers was crushed while she and Fields were “raking and grading” the driveway of a trailer park. Apparently, Fields, who was operating a tractor, placed his foot on the brake while Nivens was attempting to hook a box blade to the tractor. Fields’s foot slipped off the brake, causing the tractor to jolt and crush Nivens’s left middle finger. Fields transported Nivens to E.A. Conway Hospital for treatment. As a result, Nivens lost approximately one-third of the injured finger.

After Fields refused to pay any medical or indemnity benefits, Nivens filed a formal claim for compensation. Fields did not hire an attorney, and filed his own answer. In his answer, Fields admitted that Nivens sustained an injury, but denied that Nivens was his employee. A mandatory mediation conference was held on June 28, 2010, where trial for this matter was set for October 13, 2010. Fields did not appear for trial.

On October 19, 2010, the Workers’ Compensation Judge Brenza Irving (“WCJ”) signed a judgment awarding Nivens temporary total disability benefits from December 2, 2008, to March 2009, and supplemental earnings benefits from November 15, 2009, until she was released to return to work by her physician. Nivens was also awarded |g$3,975.56 for medical treatment, $2,000.00 for failure to pay her medical expenses and $7,000.00 for attorney’s fees.

Fields filed a motion for a new trial, contending that Nivens informed him that she had dropped the matter, so he was under the impression that he didn’t need to appear to defend it. He further contended that Nivens was his partner, not an employee. On November 29, 2010, the WCJ denied this motion in court. Fields filed a suspensive appeal and requested that a bond be set. On December 28, 2010, the WCJ signed the order of appeal, and fixed $60,000.00 as the bond amount. However, Fields failed to post the bond. La. R.S. 23:1310.5 provides in pertinent part:

C. When there has been an award of benefits by the workers’ compensation judge, no appeal by the employer shall be entertained by the appellate court unless the employer secures a bond with one or more sureties to be approved by the workers’ compensation judge, guaranteeing that the employer will pay the amount of the award rendered therein together with interest thereon as otherwise provided by law, and all costs of the proceeding. The time limits for perfecting the bond shall be as provided in the Code of Civil Procedure, but shall not commence to run 'against the appellant until the appellant is notified ' by the workers’ compensation judge as to the amount of the bond fixed in accordance with law.

Nivens filed a motion to dismiss this appeal since Fields failed to post the bond, and Fields filed an opposition to this motion.

This court referred the motion to the argument on the merits of this appeal. Even though the record included a notice of appeal from the Office of Workers’ Compensation specifying that it was mailed, and a letter from the Office of Workers’ Compensation informing Fields of the cost of the record, it does not contain any proof that Fields received the order of appeal [ ¡¡that fixed the amount of the bond. For this reason, we deny the motion to dismiss this appeal.

LAW & DISCUSSION

Rule 2-12.4 of the Louisiana Uniform Rules-Court of Appeal requires an appellant’s brief to comply with certain requirements. The brief must include, among other things, “a concise statement of the case, the action of the trial court thereon, a specification or assignment of the alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.” Rule 2-12.4 further provides that “[a]ll specifications or assignments of error must be briefed.” If they are not briefed, “[t]he court may consider as abandoned any specification or assignment of error which has not been briefed.”

Fields appears in this appeal pro se, and has filed a brief which does not comply with the requirements of Rule 2-12.4. Fields listed nine issues in his appellate brief, but does not brief them. These issues are:

1. Whether Nivens was employed by Fields at the time of the accident.
2. Whether Nivens was unable to work as a result of injury or neglect.
3. Whether Nivens and her legal counsel obtained this judgment through fraud or ill practice.
4. Why Fields’s attorney did not, or was not allowed to, discuss the issue of whether Nivens was intoxicated at the time of the accident. Does this issue have any bearing on Nivens’s claim/Nivens’s right to a claim?
L5. Whether Nivens’s failure to properly treat her injured finger and failure to stop alcohol, tobacco, and “street drug” abuse negatively impacted the healing of her finger.
6. Whether the WCJ erred in failing to modify Nivens’s judgment after payroll records, which were drafted by Nivens, were introduced to show that she was never paid more than $400.00/week.
7. Whether the WCJ erred in ordering Fields to pay medical bills from LSU Hospital, since Nivens failed to properly care for her finger.
8. Why Nivens’s attorney agreed to represent her in this action, since she had previously attempted to submit a fraudulent insurance claim to Fields’s insurance company.
9. Whether this WCJ regular ruled in favor of Nivens’s attorney, as reported to Fields by his attorney.

Recognizing Fields’s pro se status, this court attempted to discover the substance of his arguments and treat them as properly raised. We ultimately interpreted Field’s arguments to raise the issue of whether the WCJ erred in awarding Ni-vens medical and indemnity benefits, since he contended that Nivens was not his employee at the time of the accident. Fields also asserted that Nivens was intoxicated at the time of the accident and failed to properly treat the finger after the accident.

In a workers’ compensation case, the appropriate standard of review to be applied by the appellate court to the WCJ’s finding of fact is the manifest error or clearly wrong standard. Dean v. Southmark Const., 03-1051 (La.7/6/04), 879 So.2d 112. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the WCJ. Harris v. Casino Magic, 38,137 (La.App.2d Cir. 1/28/04), 865 So.2d 301, writ denied, 04-0502 (La.4/8/04), 870 So.2d 275. Unless shown to be clearly wrong, the WCJ’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Blanson v. GM Inland Fisher Guide, 33,498 (La.App. 2 Cir. 6/23/00), 764 So.2d 307.

An employee is entitled to workers’ compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135; Scott v. Super 1 Foods, 45,636 (La.App. 2 Cir. 9/29/10), 48 So.3d 1133. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1). Although the workers’ compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; she must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A., 46,047 (La.App. 2 Cir. 1/26/11), 57 So.3d 1128. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Intern. Inc., 593 So.2d 357 (La.1992); Hofler, supra. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Hofler, supra; Bruno, supra.

However, La. R.S. 23: 1081(l)(b) provides a defense to employer liability for workers’ compensation benefits where an employee, working under the influence of drugs or alcohol, is injured and the injury can be attributed to the employee’s intoxication. Deal v. Bancroft Bag, Inc., 28,188 (La.App. 2 Cir. 4/3/96), 671 So.2d 1264, writ denied, 96-1102 (La.6/7/96), 674 So.2d 977. If there was, at the time of the accident, evidence of either on or off the job use of a nonprescribed controlled substance, it shall be presumed that the employee was intoxicated. La. R.S. 23:1081(5).

To determine if intoxication contributed to a workplace injury, an employer has the right to administer drug and alcohol testing or demand that |7the employee submit himself to such testing immediately after a job-related accident. La. R.S. 23:1081(7)(a). The collection, handling and testing process must be trustworthy. Deal, supra. In such cases and in order to support a finding of intoxication, an employer need only prove the use of such drugs by the employee by a preponderance of the evidence. La. R.S. 23:1081(8).

Fields states in his appellate brief that the accident occurred while he and Nivens were completing a job for David Williams. Williams hired Fields and Nivens to “rake and grade” the driveway at a trailer park that he owned. Fields contends that Ni-vens was hired under a “subcontract partnership” for this job, which was unrelated to her employment with him. He asserts that Nivens was under the influence of drugs and alcohol at the time. Fields believes that Nivens’s intoxication, in combination with her poor judgment, caused the accident.

Fields admitted that he initially hired Nivens to remodel, his house. He argues that he never paid her $400.00, and that she worked on an average of 25 hours/ week. After the December 2, 2008, injury, Fields asserts that Nivens continued to work on the remodeling project.

At trial, Nivens testified that she began working for Fields as a supervisor of his construction crew in 2006. She stated that she worked full-time, earning an average weekly wage of $400.00. David Turner, a former employee of Fields, corroborated Nivens’s testimony that she worked for Fields full-time. As stated above, Fields did not appear for trial.

At the hearing regarding the motion for a new trial and the motion to annul the judgment, the WCJ determined that Fields did not present 1 ^evidence that was not discovered or could not have been discovered prior to trial. She further determined that Fields did not present evidence of fraud or ill practices. For these reasons, the WCJ denied both motions. We agree with these findings.

Nivens’s testimony, coupled with her medical records, were sufficient for the WCJ to render a judgment in her favor. Fields did not present any evidence supporting his assertion that Nivens did not work for him, nor did he present any evidence that Nivens was intoxicated at the time of the accident. Moreover, Ni-vens medical records from the hospital did not note that she was intoxicated on the day of the accident. If Fields was aware that Nivens was intoxicated at the time of the accident, he should have demanded that Nivens submit to a drug test pursuant to La. R.S. 23:1081(7).

Fields contends that Nivens informed him that the suit had been dropped after the mediation conference, so he took no further action. Fields’s reasons for not appearing at trial do not justify setting aside the judgment rendered. Even if Fields believed that Nivens was dropping the case, he should have confirmed it with the mediator.

After reviewing the record, we find that the WCJ did not err in awarding Nivens medical and indemnity benefits, as well as attorney’s fees and penalties. Fields’s arguments are meritless.

CONCLUSION

For the foregoing reasons, the WCJ’s judgment is affirmed. Costs are assessed against the appellant, David Fields.

AFFIRMED.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    STATE of Louisiana v. Joseph WILSON.
    No. 11-KA-575.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

|2In this criminal proceeding, defendant/appellant, Joseph Wilson, appeals his possession of cocaine conviction and his enhanced habitual offender 10-year hard labor sentence without benefit of probation or suspension of sentence. Mr. Wilson assigns two errors: (1) The trial court erred in denying his motion to suppress evidence. (2) The trial court imposed an excessive sentence. For the reasons that follow, we affirm.

Procedural History

Mr. Wilson was charged by bill of information with possession of cocaine, La.R.S. 40:967(C), allegedly occurring on October 23, 2006. Mr. Wilson filed a pretrial motion to suppress evidence, which the trial judge denied. Thereafter, a six-person jury found Mr. Wilson guilty as charged. About a month after conviction, the trial court sentenced Mr. Wilson to imprisonment at hard labor for five years. After sentencing, the court informed Mr. Wilson that the state intended | sto file a habitual offender bill. Then, the trial court set the habitual offender hearing a few weeks later. After several continuances, the hearing was set for August 8, 2008. On that date, the state filed a habitual offender bill of information alleging that Mr. Wilson was a fourth felony offender. However, the state reduced the fourth felony offender bill to a third felony offender bill based on a plea agreement. Mr. Wilson then stipulated to being a third felony offender, acknowledging under oath and in his written contemporaneously-signed waiver form that among other things, he was advised of the following: the allegations in the bill; his right to a hearing and to force the state to prove the allegations; and his right to remain silent. Mr. Wilson acknowledged that he would receive a 10-year sentence. The trial judge accepted the stipulation, vacated the original sentence, and imposed the negotiated 10-year sentence. This out-of-time appeal followed.

Facts

Officer Joseph Lovett, a Kenner police officer, testified that on October 23, 2006, he arrested Mr. Wilson on an outstanding attachment after the officer responded to a call about a suspicious person whose clothing matched Mr. Wilson’s clothing. Officer Lovett further testified that after arriving at Kenner police lockup, he noticed Mr. Wilson was attempting to hide a small plastic bag in his left hand, which the officer removed and had tested. The field test of the white powdered substance in the bag was positive for cocaine.

Daniel Waguespack, a forensic scientist for the Jefferson Parish Crime Laboratory, testified as an expert in narcotics examination. He tested the evidence in this case. The powdered substance tested positive for cocaine.

Defense counsel presented testimony from Shannon Mitchell, Mr. Wilson’s girlfriend, in an attempt to discredit Officer Lovett’s testimony that the bag of cocaine was on Mr. Wilson’s person. Ms. Mitchell testified that she was talking [¿with Mr. Wilson outside of Burger King when six or seven police officers arrived on the scene and subsequently placed him in handcuffs. Ms. Mitchell testified that police officers searched Mr. Mitchell at the scene and the search consisted of a pat down and a turning out of Mr. Mitchell’s pockets. Also, Ms. Mitchell stated that she was allowed to go into Mr. Wilson’s pockets to retrieve her car keys and cigarettes before Mr. Wilson was taken to jail. According to Ms. Mitchell, she did not place anything in Mr. Mitchell’s pockets.

On the other hand, Officer Lovett testified that his initial search at the scene was a pat down for weapons rather than a thorough search. He explained that at booking officers undertake a thorough search. Based on his police experience, arrestees frequently conceal contraband prior to booking. He also testified that on the date of the arrest and prior to placing Mr. Wilson in the vehicle, he checked the vehicle to make certain that the prior ar-restee had left nothing there. He then placed Mr. Wilson, who was handcuffed behind his back, in the vehicle. Upon escorting Mr. Wilson for booking, he observed that one of Mr. Wilson’s hands was clenched and the other one was open. He saw that Mr. Wilson had a small plastic bag in one hand that he placed in his front left pants pocket. Upon arrival at booking, Officer Lovett took the bag from the pocket for testing. Officer Lovett denied having a personal vendetta against Mr. Wilson.

After considering the evidence, the jury found Mr. Mitchell guilty as charged. Suppression

The Hearing

Officer Lovett was the sole witness to testify at the heai'ing. He testified that on the date of the arrest, while patrolling in his unit, he received a “suspicious 1Bperson call.” Based on the call, he drove to the Burger King on Veterans. He parked his police unit at a nearby parking lot and walked up to Mr. Wilson, who was out in the front of Burger King speaking with a Burger King employee. Mr. Wilson fit the caller’s description of the suspicious person. Meanwhile, another police officer pulled up to the scene. The two officers interviewed Mr. Wilson. Officer Lovett patted Mr. Wilson down because he fit the caller’s description. The officer wanted to make certain that Mr. Wilson did not have any weapons. He explained to Mr. Wilson that they were patting him down for officer safety to see if he had any weapons on him. Mr. Wilson complied with Officer Lovett’s instruction to put his hands up while Officer Lovett quickly patted him down. According to Officer Lovett, Mr. Wilson did not have anything in his hands and the officer did not feel anything during the pat down procedure. After the pat down, the officer filled out a field interview card, obtained Mr. Wilson’s information and ran it to see if he had any arrests or attachments. The officers discovered that Mr. Wilson had a Jefferson Parish attachment. As a result of the attachment, the officers placed Mr. Wilson under arrest. In placing him under arrest, they placed his hands behind his back, handcuffed him, placed him in the unit, and brought him to the lockup. Officer Lovett explained that a quick pat down does not involve a search of the pockets. Furthermore, the officers did not empty Mr. Wilson’s pockets at the scene or conduct a thorough search at the scene.

Officer Lovett testified that once he took Mr. Wilson out of the vehicle at lockup, he noticed Mr. Wilson attempted to conceal a small object in his hand. Mr. Wilson placed the object in his left front pants pocket. At lockup, Officer Lovett searched Mr. Wilson and found a clear plastic bag containing a white powdered substance. No one had searched Mr. Wilson prior to this. The substance field tested positive for cocaine.

| (Analysis

Mr. Wilson argued that the trial court erred in denying the motion to suppress for these reasons: (1) Mr. Wilson was arrested without probable cause when the police first saw Mr. Wilson at the Burger King and handcuffed him. Thus the evidence should have been suppressed as “fruit of the poisonous tree.” (2) Even assuming that the police action is considered a stop, the police lacked the requisite reasonable suspicion to make an investigatory stop. There was insufficient articula-ble suspicion given in order for the officer to conduct the initial investigatory stop which was essentially an arrest.

Mr. Wilson filed a pretrial motion to suppress evidence urging that the evidence was seized in violation of the Federal and State Constitutions and State laws. After a hearing at which defense counsel submitted the matter without argument and did not particularize the constitutional grounds for the motion to suppress, the trial court denied the motion. Now on appeal, Mr. Mitchell raises for the first time that the police lacked probable cause for the arrest, and that the officers did not have the necessary reasonable suspicion to justify an investigatory stop.

The defense has the burden of asserting the basis for its motion to suppress in order to provide the state with adequate notice so that it may prepare evidence addressing the defendant’s claims. La. C.Cr.P. art. 703(E); State v. Jackson, 04-1388, p. 5 (La.App. 5 Cir. 5/31/05), 904 So.2d 907, 911, writ denied, 05-1740 (La.2/10/06), 924 So.2d 162. Therefore, the defendant is limited on appeal to the grounds articulated in his motion to suppress or at the hearing on that motion. A new basis, even a meritorious one, cannot be raised for the first time on appeal. Jackson, supra; State v. Smith, 94-120, p. 6 (La.App. 5 Cir. 5/31/94), 638 So.2d 452, 455.

| ./Accordingly, these grounds asserted for the first time on appeal are not properly before this court. But even so, these arguments lack merit.

In State v. Hill, 97-2551 (La.11/6/98), 725 So.2d 1282, 1283, the Louisiana Supreme Court held that even assuming the initial police encounter was illegal, the discovery of an outstanding arrest warrant for the defendant dissipated any taint caused by the alleged illegal stop.

In that case, the officers were patrolling an area after receiving a general tip of narcotics activity. They observed two unknown men in front of an abandoned building. The officers exited their vehicles and approached the men. The defendant and his companion began walking away. The officers initiated a conversation with the men and subsequently frisked them for weapons, although they found nothing. During the interview, a computer search returned two outstanding arrest warrants for the defendant. The defendant was arrested and a search incident to his arrest was conducted. As a result of this search, a crack pipe that tested positive for cocaine residue was discovered. Id.

In its analysis of whether the evidence seized should be suppressed, the Hill court considered the multi-factor test for the attenuation doctrine set forth in Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 427 (1975). The primary considerations under Brown are: (1) the temporal proximity of the illegality and the acquisition of the evidence to which the instant objection is made; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Hill, supra, at 1284 citing Brown, 95 S.Ct. at 2262, and State v. Scott, 389 So.2d 1285, 1288 (La.1980) (footnote omitted). Additionally, in considering whether the evidence should be suppressed, Brown requires us to weigh each consideration in light of the policies behind the Fourth Amendment. Id.

Hill held:

[Pjroperly focusing on the dictates of Brown, we find that the police officers’ discovery of the outstanding warrants was a significant intervening event. The defendant’s arrest was based upon probable cause not derived from the initial stop and frisk. Therefore, the search incident thereto that uncovered the crack pipe was permissible. Because we find that the crack pipe was discovered in a lawful search incident to the defendant’s lawful arrest based on probable cause, we conclude that the disputed evidence was obtained through “some other means sufficiently distinguishable, thereby purging the evidence of the primary taint.” Wong Sun, 371 U.S. at 488, 83 S.Ct. at 417, 9 L.Ed.2d at 455. We find that the discovery of the outstanding arrest warrants for the defendant constituted an intervening circumstance under Brown, which sufficiently attenuated the initial Terry stop from the ultimate seizure of the disputed crack pipe.

Hill, supra at 1287.

Next, Hill found that there was no indication that the officers’ conduct was particularly egregious or amounted to a flagrant abuse of police power. Once the officers knew of the outstanding arrest warrants, they would have been derelict in their duty not to arrest the defendant. Id. Thus, suppression of the disputed evidence would not serve the policies behind the exclusionary rule, nor contravene the protections provided by the Fourth Amendment. Id. Hill is controlling here.

Mr. Wilson was arrested on an outstanding attachment. The cocaine was not discovered during the pat down but only after Mr. Wilson’s arrest for the outstanding attachment. The search at lockup conducted incidental to the lawful arrest was lawful. State v. Hill, 97-2551 (La.11/6/98), 725 So.2d 1282, 1287 (Subsequent to such a lawful arrest, a search incident thereto is authorized in order 18to ensure officer safety and to protect against destruction of evidence.). We need not determine whether the initial police encounter was an investigatory stop requiring reasonable suspicion because the discovery of the existence of the outstanding arrest warrant gave Officer Lovett probable cause to arrest, and constituted an intervening circumstance within the meaning of Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416, 427 (1975). That intervening circumstance dissipated the possible taint caused by prior police misconduct. State v. Hill, 97-2551 (La.11/6/98); 725 So.2d 1282, 1285.

Thus, the trial court did not err in denying Mr. Wilson’s motion to suppress the evidence.

Sentence

Mr. Wilson argues that the trial court erred when imposing the maximum sentence despite the fact that Mr. Wilson pleaded to the habitual offender bill of information. He contends that the court erred by not considering Mr. Wilson’s nonviolent history. Mr. Wilson did not file a motion to reconsider sentence. The failure to file or make a motion to reconsider sentence precludes a defendant from raising any objection to the sentence on appeal, including a claim of excessiveness. La.C.Cr.P. art. 881.1(E). The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional ex-cessiveness only. State v. Cotton, 10-409, p. 9 (La.App. 5 Cir. 5/31/11), 67 So.3d 673, 678-79 (citations omitted).

La.C.Cr.P. art. 881.2(A)(2), however, precludes a defendant from seeking review of a habitual offender sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. State v. Henry, 08-658, p. 16 (La.App. 5 Cir. 10/27/09), 27 So.3d 935, 947, writ denied, 09-2485 (La.4/23/10), 34 So.3d 269.

Since Mr. Wilson’s sentence was imposed in conformity with the sentencing agreement at the time of the habitual offender admission, and the imposed 10-year sentence was within the agreed upon range, Mr. Wilson is barred from challenging his sentence as excessive. Thus, this assignment lacks merit.

Error Patent

Mr. Wilson requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990) regardless of whether defendant makes such a request. Upon review, we find no errors patent requiring corrective action.

Conclusion

Accordingly, for the reasons stated, we affirm Mr. Wilson’s conviction and sentence.

AFFIRMED

      . In brief, defense counsel states that Mr. Wilson was also denied parole eligibility based on the minute/entry/commitment. The minute/entry/commitment, however, correctly reflects that the trial court imposed a legal sentence and did not deny parole eligibility.

      . As a general rule, an appellate court may review the testimony at trial in determining the correctness of the trial court's pre-trial ruling on a motion to suppress. State v. Sherman, 04-1019, p. 1 (La.10/29/04), 886 So.2d 1116, 1116 (per curiam) and the cases cited therein. This review may provide supplemental information relevant to the suppression issue. Id. In many cases the testimony at trial may not diverge from the evidence adduced at a pretrial hearing on a motion to suppress. Id. at 2, 886 So.2d at 1116. We have reviewed supplemental information given at the trial relevant to the suppression issue. Even assuming the issues raised on appeal are properly before this Court, that evidence, does not, however, affect the result we reach. Officer Lovett’s testimony was substantially similar to his testimony given at the suppression hearing.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. William FRENCH.
    No. 11-KA-576.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 29, 2011.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark, Appellate Counsel, Assistant District Attorneys, Gretna, LA, for PlaintiffAppellee, The State of Louisiana.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, William French.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|2On appeal, defendant seeks review of his conviction for indecent behavior with a juvenile. For the following reasons, we affirm his conviction and sentence.

Facts and Procedural History

Because defendant’s conviction resulted from a guilty plea without a trial, the facts presented were gathered from pre-trial hearings and evidence submitted at those hearings. According to the record, during a pool party at his parents’ home, on or about July 5, 2008, defendant was in a room with a six-year-old female who was naked when he “ejaculated on myself and touched her arm with my penis and touched her bottom with my finger and ... she was wearing her underwear on her bottom and her arm was bare.” Defendant stated that another adult entered the room, witnessed the hysterical child, and alerted the child’s father, who took her to a doctor.

On January 21, 2009, the Jefferson Parish District Attorney filed a bill of information charging defendant, William French, with indecent behavior with a juvenile, in violation of La. R.S. 14:81. On January 29, 2009, defendant entered a plea of “not guilty and not guilty by reason of insanity.” On February 13, 2009, |sthe trial judge ordered that a sanity commission be convened. After five competency hearings over the next seventeen months, defendant was found to be competent to stand trial on August 18, 2010. Also that day, defendant’s motion to suppress his statements, motion to exclude expert testimony, and motion to quash the bill of information were heard and denied.

On August 24, 2010, defendant withdrew his plea of not guilty and not guilty by reason of insanity and entered a plea of guilty as charged to indecent behavior with a juvenile, reserving his right to appeal the rulings on his motion to suppress statements, motion to quash the bill of information and motion to exclude expert testimony pursuant to State v. Crosby, Pursuant to the plea agreement, the trial judge sentenced defendant to imprisonment at hard labor for two years without benefit of parole, probation, or suspension of sentence. Defendant was advised of the sex offender registration and notification requirements. Defendant filed a timely motion for appeal, which was granted. This appeal follows.

On appeal, defendant presents two assignments of error. In his first assignment of error, defendant argues that the trial judge erred in denying the “Motions to Suppress.”

First, defendant specifically argues that the trial judge erred by denying the motion to suppress his statement to Detective Vega as involuntary because it was made after his father retained an attorney to represent him, which the detective knew and ignored. With respect to the statement to Detective Vega, the State responds that a defendant’s father does not have standing to invoke a competent |4adult defendant’s right to counsel through a letter given to a healthcare worker or by the father’s statement that the father would notify an attorney.

In Miranda v. Arizona, the United States Supreme Court held that the Fifth Amendment gives a suspect subject to custodial interrogation the right to consult with counsel prior to questioning, as well as a right to have counsel present during any questioning. The police are required to explain this right to the suspect prior to questioning. State v. Payne, 01-3196, p. 7 (La.12/4/02), 838 So.2d 927, 934. After a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning a suspect unless or until he clearly requests an attorney. State v. Gant, 06-232, p. 28 (La.App. 5 Cir. 9/26/06), 942 So.2d 1099, 1122, writ denied, 06-2529 (La.5/4/07), 956 So.2d 599 (citing Davis v. United States, 512 U.S. 452, 461, 114 S.Ct. 2350, 2356, 129 L.Ed.2d 362 (1994)).

To invoke his right to counsel, the suspect must articulate his desire to have counsel present with sufficient clarity to enable a reasonable police officer, in the circumstances, to understand his statement to be a request for an attorney. State v. Gant, supra. The invocation of the right to counsel during the custodial interrogation “requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” State v. Payne, 01-3196 at 9, 833 So.2d at 935 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 2209, 115 L.Ed.2d 158 (1991)(emphasis in original)).

Before an inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and Ifiintelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, intimidation, menaces, threats, inducement, or promises. State v. Loeb, 09-341, p. 11 (La.App. 5 Cir. 2/23/10), 34 So.3d 917, 924-25, writ denied, 10-681 (La.10/15/10), 45 So.3d 1110, (citing La. R.S. 15:451); State v. Blank, 04-0204, pp. 9-10 (La.4/11/07), 955 So.2d 90, 103, cert. denied, 552 U.S. 994, 128 S.Ct. 494, 169 L.Ed.2d 346 (2007).

The critical factor in a knowing and intelligent waiver is whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Loeb, 09-341 at 11-12, 34 So.3d at 925. Testimony of the interviewing police officer alone may be sufficient proof that a defendant’s statements were freely and voluntarily given. State v. Mackens, 35,350, p. 13 (La.App. 2 Cir. 12/28/01), 803 So.2d 454, 463, writ denied, 02-0413 (La.1/24/03), 836 So.2d 37. The admissibility of a confession or statement is a determination for the trial judge and the judge’s conclusions on the credibility and weight of the testimony relating to the voluntary nature of the confession or statement are entitled to great weight and will not be overturned unless unsupported by the evidence. State v. Williams, 10-51, p. 5 (La.App. 5 Cir. 7/27/10), 47 So.3d 467, 471, writ denied, 10-2083 (La.2/18/11), 57 So.3d 330.

At the suppression hearing in question, Detective Nick Vega of the Jefferson Parish Sheriffs Office Personal Violence Unit testified that, to his knowledge, on or before July 23, 2008, the defendant had been transferred from the St. Charles Parish Correctional Center to the Jefferson Parish Correctional Center pursuant to an arrest warrant. On or about July 23, 2008, Detective Vega approached defendant to interview him about his involvement with an incident of inappropriate contact with a juvenile that occurred during a swimming party at his parents’ house Ron July 5, 2008. Defendant agreed to go to the Investigations Bureau with Detective Vega.

Before Detective Vega started the interview, defendant asked to call his father, which Detective Vega allowed defendant to do. The detective remained in the room while the defendant spoke with his father. Detective Vega heard the defendant “advise his father that he wanted to speak to detectives in reference to the incident because it was the right thing to do.”

Detective Vega also spoke by telephone to defendant’s father, who advised Detective Vega that William was going to cooperate with the investigation. Defendant’s father also told Detective Vega that he was going to notify his lawyer. Detective Vega also stated that the defendant’s father told him that the defendant “was represented by Joe Marcel and ... that [Marcel] was going to be giving you a phone call.” Detective Vega stated that, even after speaking to his father, defendant did not ask to speak with Mr. Marcel or ask to stop the interview.

Prior to the taped interview, Detective Vega again advised defendant of his rights utilizing a form entitled “Rights of Arres-tee or Suspects.” On that form, which was completed at about 5:15 p.m., defendant noted that he was twenty-eight years old and that he had graduated from Loyola University with majors in Computer Science and Music. Detective Vega testified that defendant knew that he was under arrest and charged with indecent behavior with a juvenile. Further, defendant stated and initialed that he understood each right after the detective read it. In the detective’s opinion, the defendant did not appear to have any questions l7about his rights. Defendant did not invoke any of his rights, and, finally, he signed the form, on the line underscored “(ACCUSED),” waiving his rights.

At about 5:40 p.m. that same day, defendant admitted to ejaculating in the presence of a “naked” minor child, touching that minor child’s arm with his unclothed penis, and touching that minor child’s buttock over the underwear with his hand. Detective Vega testified that he did not offer defendant anything in exchange for his statement and did not make any threats or promises to defendant. Detective Vega testified that defendant did not appear to be confused and did not have trouble understanding any of the questions that Detective Vega asked him. Detective Vega questioned defendant about his medications and defendant stated that he was taking psychotropic medication for schi-zoaffective disorder. Detective Vega stated that defendant seemed calm and lucid during their interview.

Detective Vega further testified that he knew that the defendant had been in a facility in St. Charles Parish for treatment of his emotional and mental condition. He also knew that the hospital staff released the defendant to the St. Charles Parish Sheriffs Office since defendant was under arrest.

Charles French, defendant’s father, testified at the suppression hearing that, at about 6:55 p.m. on July 23, 2008, defendant called his father again and reported that he had given a statement. Mr. French stated that, during this second telephone conversation, which was more than one hour after the statement, the defendant told him that Detective Vega “coerced” him to make a statement and claimed that he had “not had meds since 8 am.”

| sAfter hearing this testimony, the trial judge took the matter under advisement. On December 11, 2009, the trial judge denied the motion to suppress defendant’s statement to Detective Vega.

On appeal, defendant contends that the statement should have been suppressed because it was obtained in violation of his right to counsel. Specifically, he contends that his father’s written and verbal assertion that his father had retained counsel for him was sufficient to invoke his right to counsel.

In Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), the defendant was informed of and waived his Miranda rights before he confessed. In the meantime, without his knowledge, his sister obtained an attorney to represent him. Moran v. Burbine, at 415-16, 106 S.Ct. 1135. He was later found guilty of first degree murder.

On appeal to the United States Supreme Court, Moran argued that his inculpatory statements should have been suppressed. The Court held, however, that the action of the police did not violate the defendant’s Fifth Amendment right against self-incrimination. Moran v. Burbine, 475 U.S. at 420, 106 S.Ct. 1135. Applying traditional waiver principles, and after noting that the waiver was otherwise voluntary, the court stated that “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Moran v. Burbine, at 422, 106 S.Ct. 1135. The Court stated in pertinent part:

Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Moran v. Burbine, at 422-23, 106 S.Ct. 1135.

|sIn State v. Carter, 94-2859 (La.11/27/95), 664 So.2d 367, 370, the defendant was arrested and appeared in court for an initial appearance. At the appearance, the judge appointed a public defender to represent him. Two days later, an officer met with the defendant in jail, advised him of his rights, and asked if he wanted to make a statement. The defendant stated that he understood his rights and agreed to make his statement. He signed a waiver of rights form, which included the right to remain silent and to have an attorney present during questioning, and which notified him that any statements he might make could be used against him at trial. He thereafter made a statement. The defendant’s subsequent motion to suppress the statement was denied. Id.

In Carter, the Louisiana Supreme Court held that where a defendant’s federal and state constitutional right to counsel has attached, but defendant has not asserted or invoked the attached right, he may validly waive his right to counsel during an interrogation, provided the waiver is knowing, intelligent and voluntary. The right to counsel “is the right of the client rather than the attorney, so that it may be waived by the client without counsel’s participation.” Id. at 380.

In the instant case, defendant’s father, Mr. French, stated that he had retained counsel for defendant but counsel had not yet met with defendant. Further, unlike either of the aforementioned cases, defendant spoke with his father via telephone before the interview so presumably he was informed by his father that an attorney had been retained. Defendant, however, did not ask to speak to that attorney at any point that day.

Here, defendant is a college graduate who acknowledged that he knew that he did not have to speak to the police without his attorney, who had been retained, present. He admitted that his decision to give a statement was uncoerced. Further, he was aware that his statement could be used against him to secure a conviction |infor indecent behavior with a juvenile. Defendant, however, did not invoke his right to counsel even though he had ample opportunity and gave an inculpatory statement. Here, the trial court did not err in refusing to suppress defendant’s confession. See, State v. Carter, 00-145 (La.App. 5 Cir. 7/25/00), 767 So.2d 839, writ denied, 02-227 (La.12/13/02), 831 So.2d 978.

Defendant also argues that the trial judge erred by denying the motion to suppress statements he made to Dr. Malik. He asserts that any inculpatory statements made to Dr. Malik during the course of his psychiatric examination would not have been properly admitted at trial as substantive evidence of guilt. With respect to the statements to Dr. Malik, the State argues that this issue is precluded because defendant did not raise this ground for objection in the trial court. The State further argues that it was entitled to have defendant examined by an expert of its choice following defendant’s entry of a plea of not guilty and not guilty by reason of insanity.

We agree with the State that the defendant is precluded from raising this issue, but for a different reason. Here, the record does not contain any evidence of defendant’s alleged inculpatory statements to Dr. Malik. Neither Dr. Malik’s testimony nor his report referred to during the suppression hearings were introduced into the record of this case. The issue presents no grounds for appellate relief pursuant to La.C.Cr.P. art. 921. Further, the issue is moot because the allegedly-objectionable evidence was not introduced into the record. State v. Smith, 339 So.2d 829 (La.1976), cert. denied, Smith v. Louisiana, 430 U.S. 986, 97 S.Ct. 1685, 52 L.Ed.2d 381 (1977); State v. Weiland, 562 So.2d 950, 952 (La.App. 5 Cir.1990). The assignment of error lacks merit.

In his second assignment of error, defendant argues that the trial judge erred by denying his motion to quash. Specifically, defendant contends that La. R.S. 14:81, |nas amended in 2006, contains penalty provisions that are “insolubly inconsistent.” Defendant asserts that La. R.S. 14:81(H)(1) is inconsistent with La. R.S. 14:81(H)(2), because § (H)(1) provides for a “with or without” hard labor sentence, but § (H)(2) mandates a hard labor sentence. The State responds that this claim is without merit based on State v. Ross, 09-431 (La.App. 5 Cir. 11/24/09), 28 So.3d 475, wherein this Court recognized that the aforementioned amendments added a provision allowing a greater penalty when the indecent behavior is perpetrated on a victim under the age of 13.

La. R.S 14:81 was amended by Louisiana Acts 2006, N.o. 103, § 1, and No. 224, § 1, to add a provision allowing a greater penalty where the indecent behavior is on a victim under age 13. Ross, supra. In the amended version of La. R.S. 14:81, the statute’s original penalty provision — formerly paragraph C — is now subparagraph (H)(1), and the newly-added penalty provision is subparagraph (H)(2), as follows:

H. (1) Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
(2) Whoever commits the crime of indecent behavior with juveniles on a victim under the age of thirteen when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than two nor more than twenty-five years. At least two years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

Here, La. R.S. 14:81(H)(1) and (H)(2) are clear and unambiguous. La. R.S. 14:81(H)(1) provides the general penalty for the offense against persons under the age of eighteen, but 14:81 (H)(2) allows for a harsher penalty for an offender that is seventeen or older, who victimizes a person under the age of 13.

| ^Additionally, at the hearing on the motion to quash, the State introduced a certified copy of Louisiana Acts 2006, No. 103, § 1, which indicates that the legislative intent in amending and reenacting the provisions in question was “to increase criminal penalties for certain offenses involving persons under the age of thirteen.” Here, the bill of information alleges that the victim, whose date of birth is April 10, 2003, was under the age of 13 on July 5, 2008, the date of the offense. Defendant, whose date of birth is March 20, 1980, was twenty-eight years old at the time of the offense. Accordingly, the statute mandates that § (H)(2) be applied. In light of the foregoing, we find no error in the trial judge’s denial of defendant’s motion to quash the bill of information. This assignment of error lacks merit.

Finally, as is our routine practice pursuant to La.C.Cr.P. art. 920, the record was reviewed for errors patent. Our review reveals no errors that require correction. Based on the foregoing, defendant’s conviction and sentence are affirmed.

AFFIRMED

      . Defendant was alternately found incompetent then restored after inpatient hospitalization for treatment of his mental illness until he was declared to be restored on August 18, 2010.

      . That same day, the defendant also pled guilty to contempt of court "for his attempt to take a plane last night” and the trial judge sentenced defendant to six months in parish prison, consecutive to the two-year sentence.

      . State v. Crosby, 338 So.2d 584 (La.1976).

      . Miranda v. Arizona, 384 U.S. 436, 469-473, 86 S.Ct. 1602, 1625-1627, 16 L.Ed.2d 694 (1966).

      . The United States Supreme Court defined “custodial interrogation” as the "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612.

      . The "Waiver of Rights” that defendant acknowledged states: "I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure'or coercion of any kind has been used against me.”


author: TERRI F. LOVE, Judge.

text:
    SUCCESSION OF Edward A. HORRELL, Sr. Succession of Edward A. Horrell, Sr.
    Nos. 2011-CA-0194, 2011-CA-0195.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 30, 2011.
    Rehearing Denied Dec. 21, 2011.

      Walter J. Horrell, Covington, LA, for Appellant.
    Kathleen D. Lambert, Stephenson Cha-varri & Lambert, L.L.C., Jack M. Allt-mont, Eric M. Schorr, Brandon H. Robb, Sessions Fishman Nathan & Israel, L.L.P., New Orleans, LA, for Appellees.

      (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

1 Appellant, Walter J. Horrell, assigns error to the trial court’s granting of the Provisional Administratrix’s/Appellee’s Motion for Interim Payment. Appellant also argues that the trial court abused its discretion in allocating certain costs and expenses to him and to Clare Younger Horrell, Gay Coffer, Michael Horrell, Edward A. Horrell, Jr., and Mary Elise LeC-our. We find that the trial court did not abuse its discretion in granting an interim payment to the Provisional Administratrix of the Succession. Except for one small error, we further find that the trial court did not abuse its discretion in allocating certain costs and expenses among all of the Horrell family members, as they were apportioned according to who was responsible for the charges incurred. We amend the judgment, and as amended, we affirm. We deny Walter Horrell’s exceptions of no cause of action, no right of action, and res judicata filed in this Court.

FACTS AND PROCEDURAL BACKGROUND

Edward Horrell, Sr. died in 1993 at the age of 84 and was survived by his wife of more than fifty years, Clare Younger Hor-rell, and five adult children, |2Walter J. Horrell, Gay Coffer, Michael Horrell, Edward A. Horrell, Jr., and Mary Elise LeC-our. The Succession subsequently became the subject of various proceedings.

This appeal arises from an addition to the already protracted litigation that has taken place regarding the Succession of Edward Horrell, Sr. (“the Succession”). The matter sub judice is before this Court on appeal of the trial court’s granting of the Provisional Administratrix’s motion for an interim payment of fees and expenses. In opposition to that motion, Clare Younger Horrell, Gay Coffer, Michael Horrell, Edward A. Horrell, Jr., and Mary Elise LeCour (“the Horrells”) moved for certain expenses of the administration of the Succession as outlined by the Provisional Ad-ministratrix to be allocated to Walter J. Horrell (“Mr. Horrell”) because of actions that he took to thwart the Succession’s administration. Nevertheless, the Provisional Administratrix entered time records into evidence that identified the entries and corresponding charges that were caused by particular heirs and requested that the certain costs be apportioned to the parties causing the Succession to incur those costs. The trial court granted the ^Provisional Administratrix’s motion for interim payment and ordered that costs be apportioned as outlined by her. Mr. Hor-rell appeals.

STANDARD OF REVIEW

A trial court has much discretion in setting a succession administrator’s fee and the fee award can be disturbed only if that discretion has been abused. Succession of Lasyone, 395 So.2d 413, 414 (La.App. 3rd Cir.1981).

ADMINISTRATRIX FEES

Mr. Horrell argues that the trial court abused its discretion in granting a motion for interim payment filed by Provisional Administratrix, Ms. Lisa C. Matthews (“Ms. Matthews”). The Horrells, appellees in this matter, contend that the amount of the interim payment requested was excessive given that a total constituting the greater half of the remaining assets of the Succession would be paid to the Provisional Administratrix and her law firm as a result while the Horrells have each received less than $50,000. This, the Horrells maintained, evidences that Ms. Matthews failed to act in a manner that was in the best interest of those who would inherit.

In addition, the Horrells aver that compensation exceeding one-half the net value of the estate, which is much greater than any heir has received, may not be deemed fair and reasonable under La. C.C.P. art. 3351. They contend that Ms. Matthews neglected to adequately consider the costs of her actions in legally countering the vengeful actions of Mr. Horrell and thus failed to act as a prudent administrator of the Succession; the Horrells argue that the costs should be charged to Mr. Hor-rell’s share of the estate. Mr. Horrell also claims that the Provisional LAdministratrix mismanaged the Succession and she incorrectly administered the estate.

Ms. Matthews maintains that she acted as both administrator and lawyer for herself as the Provisional Administratrix and the Succession. Ms. Matthews states that she appeared in court and pleadings pro se in an attempt to save the succession money and for which she billed less than the usual hourly rate much of the time taken in the case.

The trial court granted the Provisional Administratrix compensation for services rendered and costs advanced on behalf of the Succession under the authority of La. C.C.P. art. 3351, which provides:

An executor shall be allowed as compensation for his services such reasonable amount as is provided in the testament in which he is appointed. An administrator for his services in administering a succession shall be allowed such reasonable amount as is provided by the agreement between the administrator and the surviving spouse, and all competent heirs or legatees of the deceased.
In the absence of a provision in the testament or an agreement between the parties, the administrator or executor shall be allowed a sum equal to two and one-half percent of the amount of the inventory as compensation for his services in administering the succession. The court may increase the compensation upon a proper showing that the usual commission is inadequate.
A provisional administrator or an administrator of a vacant succession shall be allowed fair and reasonable compensation by the court for his services.
The compensation of a succession representative shall be due upon the homolo-gation of his final account. The court may allow an administrator or executor an advance upon his compensation at any time during the administration. (Emphasis added).

An administrator has a right to defend his account “both in the district and appellate courts and to charge the costs incurred therein, including briefs, against |fithe succession unless it be shown that there was gross misrepresentation or the charges frivolous.” Succession of Meier, 204 So.2d 793, 796 (La.App. 4th Cir.1967) (citing Suc cession of Moore, 42 So.2d 907 (La.App.Orleans 1949)).

La. C.C.P. Articles 3182 and 3191 provide, respectively, in part:

The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court....
A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.

“ ‘Mismanaged’ as contemplated by Article 3182 has been jurisprudentially defined to mean ‘to manage badly, improperly, or unskillfully ... an act or omission which redounds to the detriment of the estate.’ ” Succession of Orlando, 531 So.2d 546, 548 (La.App. 5th Cir.1988) (citing Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965); Succession of Crain, 450 So.2d 1372 (La.App. 1st Cir.1984)).

In support of her motion for interim payment, Ms. Matthews filed an approximately 200-page list detailing billing records from her counsel from October 2006 through April 2009 labeled “Exhibit A.” The trial court awarded $152,135.90 to be apportioned as suggested by the Provisional Administratrix as outlined in Exhibit A, which she submitted in support of her motion. Statutory authority exists for the Provisional Administratrix’s request for interim payment [fifor costs and fees, and we find that the trial court did not abuse its discretion in granting the interim payment.

Further, we find that the amount of compensation for Ms. Matthews compensation is not per se unfair and unreasonable given its proportion to the total amount of the estate. The law provides that the amount of compensation may be increased by the court upon a proper showing. Ms. Matthews established in detail the amount of expenses that she incurred, and trial court found merit in those expenditures.

Mr. Horrell did not set forth proof that Ms. Matthews grossly misrepresented the charges incurred in relation to the Succession. Instead, Mr. Horrell has only offered unsubstantiated argument that Ms. Matthews mismanaged the Succession.

The Succession at issue has been under administration greater than seventeen years. The record reflects that Ms. Matthews spent a considerable amount of time engaged in the administration of the Succession and the litigation surrounding the Succession that took place between the parties and the Succession. Moreover, after she was sued individually and in her capacity as Provisional Administratrix, Ms. Matthews contends that she determined that the proper course of action was to obtain legal counsel. In providing reasons for judgment, the trial judge stated that “the [Provisional] [Ajdministratrix has acted prudently under the difficult circumstances in which she finds herself and is entitled to be compensated.” We find no merit in the arguments that Ms. Matthew’s compensation is not fair and reasonable and find no viable basis for concluding |7that Ms. Matthews mismanaged the estate. The trial court did not abuse its discretion.

ALLOCATION OF EXPENSES

Mr. Horrell contends that during the various proceedings during the administration of the Succession, he was simply defending himself from the attacks of others. Mr. Horrell maintains that the trial court incorrectly apportioned costs to him based on the Horrells’ Motion and Incorporated Memorandum for Assessment of Administratrix Fees and Costs to Mr. Hor-rell.

The Horrells maintain that the amounts reflected in billing records submitted by the Provisional Administratrix were directly and solely attributable to Mr. Horrell’s misdeeds. The Horrells contend that the expenses and costs incurred are due to Mr. Horrell’s actions, which they aver include the filing of frivolous appeals, evásion of service of process, and attempts to prevent the sale of succession property. The Hor-rells also aver that the costs of Mr. Hor-rell’s actions were conservatively $41,454.94 and requested that these expenses be taxed to his portion of the estate.

Mr. Horrell has exhibited contemptuous behavior in at least one previous instance. The trial court previously found Mr. Hor-rell in contempt of court for failing to comply with the court’s order to provide the Provisional Administratrix, notary, and appraisers entry to his residence. That finding was affírméd by this Court. In re Succession of Horrell, 07-1533, pp. 15-16 (La.App. 4 Cir. 10/1/08), 993 So.2d 354, 366-67, writ denied, 08-2880, 08-2889 (La.3/6/09), 3 So.3d 482.

lain In re Succession of Horrell, Id., this Court cited Succession of Bell, which we find applicable in this matter. In Succession of Bell, 06-1710, p. 4 (La.App. 1 Cir. 6/8/07), 964 So.2d 1067, 1070, the Court reviewed a judgment that held one of the decedent’s children in contempt for violating the previous orders of the court and ordered her to pay the attorney fees and costs incurred by the administratrix. The appellate court found no error or abuse of discretion in the trial court’s assignment of certain administrative expenses to the decedent’s daughter because such expenses were “simply reimbursements of amounts that” the daughter’s “actions had cost the estate.” Id., 06-1710, p. 7, 964 So.2d at 1072.

The trial court ordered that apportionment of costs be made according to responsibility for the incurrence of expenses as outlined in the Provisional Administra-trix’s records, not according to the arguments set forth by the Horrells in their motion as Mr. Horrell contends. The records submitted by the Provisional Admin-istratrix set forth the individual persons responsible for each charge billed in detail. Thus, we find support for the trial court’s apportionment of expenses, save one item that we now discuss, we find no abuse of discretion in the trial court’s assignment of expenses.

During Mr. Horrell’s examination of Ms. Matthews, she admitted that she had incorrectly apportioned one hundred percent of a one-tenth of an hour charge ($25.00) to Mr. Horrell to check on the payment of taxes on property located on Florida Boulevard in Orleans Parish. The trial court acknowledged that the bill required adjustment, but did not do so or account for that error in the judgment. Accordingly, we amend the judgment by reallocating one-sixth of the sum of | ;|$25.00 to each of the Horrells and Mr. Horrell rather than the whole amount of $25.00 to Mr. Horrell.

APPELLATE REVIEW OF PEREMPTORY EXCEPTIONS

Mr. Horrell filed three exceptions in this Court: an exception of no cause of action; an exception of no right of action; and an exception of res judicata. A peremptory exception may be filed for the first time in the appellate court, pursuant to La. C.C.P. art. 2163.

EXCEPTION OF NO CAUSE OF ACTION

The function of the exception of no cause of action is to test the sufficiency of the petition by determining whether the law affords a remedy on the facts alleged. The court reviews the petition and accepts well-pleaded allegations of fact as true. Wright v. Louisiana Power & Light, 06-1181, pp. 14-15 (La.3/9/07), 951 So.2d 1058, 1068.

Mr. Horrell states that the Horrells’ motion for assessment of administrative fees and cost does not set forth a cause of action under La. C.C.P. art. 863. He also maintains that the Horrells fail to specify how he violated La. C.C.P. art. 863.

Louisiana Code of Civil Procedure art. 863 provides in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading and state his address.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
1 in(l) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2)Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees ... (Emphasis added).

The trial court’s judgment does not reflect that Mr. Horrell was sanctioned under La. C.C.P. art. 863. The trial court did not find that he violated La. C.C.P. art. 863. Rather, the trial court apportioned costs of the Succession’s administration to Mr. Horrell and the other heirs according to the Provisional Administratrix’s detailing. We find no support for granting this exception.

EXCEPTION OF NO RIGHT OF ACTION

Mr. Horrell maintains that regarding the “Motion and Incorporated Memorandum for Assessment of Administrative Fees and Costs to Walter Horrell” filed on behalf of the Horrells, they have no right of action during administration to take any action concerning any alleged obligation owed the estate. The function of an exception of no right of action is to determine whether a person belongs to the class of persons to whom the law grants the cause of action asserted in the petition. La. C.C.P. art. 927; Turner v. Busby, 03-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415. The exception of no right of action serves to question whether the plaintiff in |nthe particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation. Id.

The Provisional Administratrix filed a motion for interim payment under the authority of La. C.C.P. art. 3351, wherein she set forth a detailed listing of expenditures incurred as a result of the actions of each party. Therefore, independent of the Hor-rells’ motion, the trial court had a basis for allocating costs per responsibility according to the Provisional Administratrix’s motion. We find no merit in Mr. Horrell’s exception of no right of action as to the Horrells.

RES JUDICATA

Mr. Horrell contends that the Provisional Administratrix and her legal representation waived their right to be compensated for services rendered and expenses incurred between the time the first motion for interim payment was filed and the date the court issued its order granting that motion.

The res judicata effect of a prior judgment is a question of law that is reviewed de novo. Fogleman v. Meaux Surface Prot., Inc., 10-1210, p. 2 (La.App. 3 Cir. 3/9/11), 58 So.3d 1057, 1059 (quoting Morales v. Parish of Jefferson, 10-273, p. 6 (La.App. 5 Cir. 11/9/10), 54 So.3d 669, 672). Rather than denying the validity of Ms. Matthews’ claims, Mr. Horrell argues that because the Provisional Administra-trix failed to assert all of her then existing claims prior to the June 6, 2007 judgment after the May 2007 hearing, those claims have been waived or barred. We find this assertion contrary to the law. La. C.C.P. art. 3351 sets forth a basis for the court to allow an advance at any time during the administration of the Succession. The statute simply does not mandate elaim-|waiver12 or bar in the manner that Mr. Horrell contends. We deny Mr. Horrell’s exception of res judicata.

DECREE

For the foregoing reasons, we find that the trial court did not abuse its discretion in granting an interim payment to the Provisional Administratrix of the Succession except as noted above. We amend the judgment of the trial court to reallocate one-sixth of the sum of $25.00 to each of the Horrells and Mr. Horrell rather than the whole amount of $25.00 to Mr. Horrell. We further find that the trial court did not abuse its discretion in allocating certain costs and expenses to Mr. Hor-rell and to Clare Younger Horrell, Gay Coffer, Michael Horrell, Edward A. Hor-rell, Jr., and Mary Elise LeCour. We deny the exceptions of no cause of action, no right of action, and res judicata.

AMENDED; AFFIRMED AS AMENDED

      . The voluminous facts of those proceedings are omitted from this opinion. A listing of that litigation history is as follows: Succession of Horrell, 95-1598, 95-1599 (La.App. 4 Cir. 9/11/96), 680 So.2d 725, writ denied, 96-2841, (La.1/31/97), 687 So.2d 403; Succession of Horrell, 97-2115 (La.App. 4 Cir. 3/25/98), 709 So.2d 1069, writ denied, 98-1023 (La.5/29/98), 720 So.2d 669; Horrell v. Horrell, 99-1093 (La.App. 1 Cir. 10/6/00) (on rehearing), 808 So.2d 363, writ denied, 01-2546 (La.12/7/01), 803 So.2d 971; In re Succession of Horrell, 03-0482 (La.App. 4 Cir. 11/12/03), 859 So.2d 318 (table), writ denied, 04-0477 (La.4/8/04), 870 So.2d 273; Horrell v. Matthews, 06-1838 (La.App. 1 Cir. 8/15/07), 962 So.2d 512 (table); 2007 WL 2318134 (unpublished); Matthews v. Horrell, 06-1973, (La.App. 1 Cir. 11/7/07), 977 So.2d 62; In re Succession of Horrell, 07-1533 (La.App. 4 Cir. 10/1/08), 993 So.2d 354, writ denied, 08-2880 and 08-2889 (La.3/6/09), 3 So.3d 482; Horrell v. Barrios, 09-2199 (La.App. 1 Cir. 7/21/10), 2010 WL 2844342 (unpublished); and, Horrell v. Matthews, 10-1694 (La.App. 1 Cir. 5/6/11), 2011 WL 1941588 (unpublished).

      . The record does not reflect that Mr. Horrell filed the exceptions in the trial court. We address the exceptions filed in this Court as the record does not contain a time-stamped copy of the exceptions to establish timeliness of the filing.


author: THIBODEAUX, Chief Judge.

text:
    Deborah Jean Willet GRAVLEE v. Mitch GRAVLEE.
    No. 11-509.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 7, 2011.

      David L. Carriere, Law Office of David L. Carriere, Opelousas, LA, for Plain-tiffiRespondent, Deborah Jean Willet Gravlee.
    Byron P. Guillory, Lafayette, LA, for Defendant/Applicant, Mitch Gravlee (Deceased), Randall L. Guidry, Executor.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   THIBODEAUX, Chief Judge.

11 This is a community property partition suit. The wife, Deborah Jean Willett Gravlee, filed for a divorce and partition of community property in 1996. In 2005, the husband, Mitch Gravlee, died. In 2011, Randall L. Guidry, the executor of the husband’s succession filed, without becoming a party to the suit, a motion to dismiss the wife’s partition action on abandonment grounds. The trial court denied the motion. For the following reasons, we affirm.

I.

ISSUE

We shall consider whether activities of the persons involved in this partition of the community property case preclude the application of abandonment statute where the wife filed for the partition in 1996, made the last submission to the court in 2004, the husband died in 2005, and the executor of the husband’s estate, throughout the years, issued checks to the wife to settle her claims to various community assets.

II.

FACTS

Deborah filed for a divorce and partition of community property in 1996. In 1997, Mitch and Deborah were divorced. In 2001, Deborah filed a descriptive list of community assets and liabilities. In 2004, Deborah sent a letter with the proposed judgment to the trial court. The trial court scratched through the proposed judgment and set the matter for a hearing that, apparently, was never held. Mitch died in 2005, and the executor of his succession was never substituted as a party to this litigation. In 2006, Deborah filed a proof of claim in the succession proceedings.

IgMost of the community property has been partitioned. Deborah submitted a list of all the payments she received from the executor in settlement of her claims. The executor did not dispute the list which included the receipts of money from: the insurance company for the fire damage on the family home in 2006; the cash sale of the family home in 2006; the sale of Crowley property in 2009; the sale of St. Mar-tinville property in 2010; and, the sale of Eunice and Jeanerette properties in 2011.

The only major asset remaining in dispute is $1.4 million plus interest in a jointly-controlled bank account. This money came from a sale of several Sonic operating companies. These companies were sold to a third party, and, in the settlement documents, Deborah retained the right to assert her claim to an ownership interest in the companies. The executor also retained his right to dispute Deborah’s claim because, according to the executor, the companies were Mitch’s separate property and never became part of the community.

In 2011, the executor filed, without becoming a party to this suit, a motion to dismiss on abandonment grounds. The trial court denied the motion, and the executor applied for a supervisory writ of review to this court. We now consider the matter.

III.

STANDARD OF REVIEW

Whether a party has taken a step in the prosecution of a case is a question of fact, subject to a manifest error standard of review. Gueldner v. Allstate Ins. Co., 09-720 (La.App. 3 Cir. 2/10/10), 30 So.3d 1143 (citing Hutchison v. Seariver Mar., Inc., 09-410 (La.App. 1 Cir. 9/11/09), 22 So.3d 989, writ denied, 09-2216 (La.12/18/09), 23 So.3d 946). On the other hand, whether the act precludes abandonment is a question of law that is reviewed de novo. Id.

IV.

LAW AND DISCUSSION

The parties focus on two issues: (1) whether La.Code Civ.P. art. 561 that pertains to abandonment of actions applies in cases of property partitioning, an impre-scriptible cause of action; and (2) whether Mitch or the executor waived abandonment by taking steps to defend the action. Neither of these issues needs to be decided to resolve this case. Instead, regardless of whether or not La. Code Civ.P. art. 561 applies in partition cases, the question this court shall address is whether the persons involved in this litigation took enough steps to preclude abandonment.

Except for succession proceedings, an action “is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.” La.Code Civ.P. art. 561(A)(1). “Any formal discovery as authorized by this Code and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action.” La.Code Civ.P. art. 561(B). Louisiana Code of Civil Procedure Article 561 “is to be liberally construed in favor of maintaining a plaintiffs suit.” Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 8 (La.5/15/01), 785 So.2d 779, 785.

The purpose of La.Code Civ.P. art. 561 is to dismiss those cases in which a plaintiffs inaction “has clearly demonstrated his abandonment of the case.” Id. (quoting Kanuk v. Pohlmann, 338 So.2d 757, 758 (La.App. 4th Cir.1976), writ denied, 341 So.2d 420 (La.1977)). A case where a plaintiff plainly demonstrated “that he does not intend to abandon the action” should not be dismissed. Id. at 786. 14“In sum, abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact clearly have been abandoned.” Id. Thus, where there is a question regarding abandonment, courts stress substance over form. Id.

Under La.Code Civ.P. art. 561, three years of litigation inactivity result in an inconclusive presumption of abandonment. Clark, 785 So.2d 779. All reasonable doubts regarding abandonment are “resolved in favor of allowing the prosecution of the claim and against dismissal.” Id. at 787 (quoting Young v. Laborde, 576 So.2d 551, 552 (La.App. 4 Cir.1991)). Furthermore, because abandonment balances two competing policy considerations — the concern about litigants having their day in court and a concern over indefinitely-lingering actions — “ ‘Louisiana’s jurisprudence tends to be inconsistent; no bright lines exist.’ ” Id. (citation omitted).

Usually, a “step” toward prosecution means taking a formal action before the court or taking of a deposition, and this step must appear in the record. Id. Nevertheless, because the requirements of formality and appearance on the record are intended to ensure notice to the defendant, when it is the defendant who is taking the action, the purpose of these requirements is not present, and the evidence outside the record can be considered. Id. Furthermore, “[a]ny formal step taken by any person capable of so doing, would be sufficient to negate the inference that an action has been abandoned, and hence, to preclude dismissal.... ” Kambur v. Kambur, 583 So.2d 1213, 1214 (La.App. 4 Cir.1991) (citing Am. Eagle, Inc. v. Employers’ Liab. Assurance Corp., Ltd., 389 So.2d 1339 (La.App. 1 Cir.1980), writs denied, 396 So.2d 885, 886 (La.1981)).

The step in the prosecution does not have to be made in the same action. Id. For example, a step in a partition of community property action, an “action separate and distinct from any separation/divorce action” was held to be a step in the Isprosecution of the divorce action because it “was inextricably bound up by law with the underlying separation/divorce actions.” Id. at 1214 (emphasis omitted).

Neither does the step in the prosecution must be made by a party in the lawsuit. See Am. Eagle, Inc., 389 So.2d 1339. For example, a post-trial conference called by the judge was sufficient to interrupt the accrual of abandonment. Id. This was because the advantage of this step “inured to the benefit of all of the parties.” Id. at 1342.

Generally, in cases where there are no formal steps on the record, informal settlement negotiations are insufficient to constitute a step in the prosecution. Clark, 785 So.2d 779 (citation omitted). On the other hand, an unconditional tender of money is an acknowledgment— an admission of liability — that interrupts the accrual of abandonment because it “lulls the creditor into believing that he [the debtor] will not contest liability.” Id. at 792 (quoting Lima v. Schmidt, 595 So.2d 624, 634 (La.1992)).

In this case, throughout the years Deborah received a number of checks from the executor. Most of this money came from the sale of various community assets. Generally, sales of succession property require court authorization or approval. See La.Code Civ.P. arts. 3271 & 3281. Because we do not have the record before us, it is unclear whether the executor obtained court authorizations or approvals to sell the property. Nevertheless, based on La. Code Civ.P. arts. 3271 & 3281, we presume that he did. Thus, formal steps related to this litigation have been taken.

Certainly, these steps were not taken in this partition action. Nevertheless, the sale of community assets and issuance of money to Deborah for her share of them, in the words of the Kambur court, were “inextricably bound up by law | fiwith the” partition action so as to constitute a step that hastens the resolution of the partition action. 583 So.2d at 1214.

Possibly, issuance of a check to settle a claim is different from an unconditional tender and may be regarded as an informal settlement negotiation. Nevertheless, the money in this case came from the sale of properties for which a court authorization was required. These court authorizations took the transactions out of the realm of informal settlement negotiations and made them formal steps in litigation.

As the first circuit observed, the steps in prosecution or defense of the case need not be made by the party. See Am. Eagle, Inc., 389 So.2d 1339. Thus, even though the executor was not named as a defendant in this partition action, the benefits of his steps, described above, inured to all of the parties. Once Deborah formally substitutes the executor as the defendant in this action, the executor will in no way be prejudiced by the substitution. This is because the executor has been actively and intricately involved in the settlement of Deborah’s claims all along.

This court is certain that this decision effectively reflects the overarching policies of La.Code Civ.P. art. 561: the liberal construction in favor of maintaining a plaintiffs suit; the resolution of all reasonable doubts regarding abandonment in favor of allowing the prosecution of the claim and against dismissal; and, where there is a question regarding abandonment, placement of emphasis on the substance over form. On the balance, this court does not find that Deborah, in fact, has clearly abandoned this partition action.

JiV.

CONCLUSION

The trial court’s judgment denying Randall L. Guidry’s motion to dismiss on the ground of abandonment is affirmed. Costs are assessed against Randall L. Gui-dry.

AFFIRMED.

      . Under La.Code Civ.P. art. 561 either a party or "an interested person” can bring the motion.

      . While a judgment against a deceased person is an absolute nullity, the judgment appealed to this court was not against Mitch but against the executor. See Succession of Lefort, 09-303 (La.App. 3 Cir. 12/16/09), 27 So.3d 1021.