author: MADELEINE M. LANDRIEU, Judge.

text:
    Rev. James SMART, III, as the Universal Successor of the Succession of Henry Walton v. Cesar J. VAZQUEZ, Esq., John D. Rawls, Esq. and Vazquez and Rawls, A.P.L.C., d/b/a Nursing Home Advocates, Working Thru J.A.G.S. Consultant, L.L.C.
    No. 2012-CA-1694.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      William D. Aaron, Jr., DeWayne L. Williams, Candice Richards-Forest, Goins Aaron, APLC, New Orleans, LA, for Plain-tiffiAppellant.
    C. William Bradley, Jr., Bradley Murchison Kelly & Shea, LLC, Gustave A. Frit-chie, III, Kelly E. Brilleaux, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, John Dowling Rawls, Attorney at Law, Laramie, WY, for Defendant/Appel-lee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

| iThis is a legal malpractice action which the trial court dismissed on an exception of peremption finding that it was filed more than three years after the alleged act of malpractice sued upon. Because we find that the trial court properly applied the three-year preemptive period set forth in Louisiana Revised Statute 9:5605 and because we find the fraud exception in that statute to be inapplicable to the facts presented here, we affirm the judgment of the trial court.

FACTS AND PROCEEDINGS BELOW

The Medical Malpractice Action

Between October 20 and November 8, 2005, Mr. Henry Walton was treated at West Jefferson Medical Center and is alleged to have sustained injuries occasioned by the malpractice of certain health care providers. Acting pursuant to a power of attorney, Mr. Walton’s cousin, Rev. James Smart, III, retained the defendant attorneys, Vazquez and Rawls, A.P.L.C.; John D. Rawls; J.A.G.S. Consultant, L.L.C.; and Judith A. Gic to file a medical malpractice action on behalf of Mr. Walton.

| aIt is undisputed that Vazquez and Rawls timely filed the medical malpractice complaint with the Patients Compensation Fund (PCF) on October 18, 2006 against West Jefferson Hospital and six other health care providers. Upon receipt of the complaint, the PCF, in letters dated November 1 and November 13, 2006, acknowledged receipt of the complaint, and confirmed the status of the defendants as qualified health care providers. Each letter also contained the following language:

In accordance with Act No. 961 of the 2003 Regular Session, which amended LA R.S. 40:1299.47(A)(l)(c), effective August 15, 2003, a filing fee of $100.00 per qualified healthcare provider is due within 45 days from the postmarked date of this notice. * * * Failure to comply shall render the request invalid and without effect and the request shall not suspend the time within which suit must be filed.

On January 9, 2007, Vazquez and Rawls mailed a check to the PCF for a total of $700.00 as payment of the filing fees. In a letter dated January 22, 2007, the PCF notified Vasquez and Rawls that the filing fees remitted for this claim had been received beyond the time allotted by statute, and the claim was therefore considered to be invalid and without effect.

In the meantime, on January 11, 2007, Vazquez and Rawls filed a new medical malpractice complaint with the PCF based on the same allegations. This complaint was filed on behalf of Mr. Walton’s heirs, as Mr. Walton had died on November 29, 2006 from injuries unrelated to his malpractice action. The PCF acknowledged receipt of this claim and acknowledged that the filing fees on this amended complaint were timely paid.

|sIn December of 2007, the defendant health care providers filed peremptory exceptions of prescription in the 24th Judicial District Court, alleging that both the original complaint filed on behalf of Mr. Walton and the complaint filed on behalf of Mr. Walton’s heirs had prescribed.

On January 29, 2009, the trial court granted the exceptions of prescription, with prejudice, and Vazquez and Rawls filed an appeal with the Fifth Circuit Court of Appeal. The Fifth Circuit affirmed the trial court’s ruling on November 24, 2009, and the Louisiana Supreme Court denied a writ of certiorari on February 12, 2010. Smart v. W. Jefferson Med. Ctr., 2009-366 (La.App. 5 Cir. 11/24/09), 28 So.3d 1119, writ denied, 2009-2673 (La.2/12/10), 27 So.3d 857.

Thereafter, on February 20, 2010, Mr. Rawls sent a letter to Rev. Smart in which he informed Rev. Smart of the Supreme Court’s denial of the writ, terminated the attorney-client relationship between them, and advised Rev. Smart that he may have a cause of action in legal malpractice.

The Legal Malpractice Action

On August 16, 2010, Rev. Smart filed the instant legal malpractice action against John Rawls, Cesar Vasquez, Vasquez and Rawls, A.P.L.C. and J.A.G.S. Consultant, L.L.C. On November 19, 2010, he filed a First Supplemental, Amending and Restated Petition naming Judith Gic as an additional defendant and adding three new causes of action relative to allegations of fraud. The defendants filed several exceptions, including exceptions of peremption. The exceptions of Lperemption alleged that the filing of the lawsuit on August 16, 2010 was untimely as the “act, omission, or neglect” sued upon was the failure of the defendant attorneys to timely pay the fees for the underlying medical malpractice claim. As the latest date those fees could have been paid to preserve the claim was in December of 2006, the defendant attorneys argued that Rev. Smart’s suit, filed more than three years later in August of 2010, was perempted. The defendant attorneys further argued that the allegations of fraud made by Rev. Smart did not fall within the fraud exception to Louisiana Revised Statute 9:5605(E).

Rev. Smart filed an opposition to these exceptions in which he asserted that his “three year peremptive period did not begin to run until his [underlying medical malpractice] suit was dismissed, which was on or about January 29, 2009.” This is the date the trial judge in the 24th JDC granted the defendants’ exceptions of prescription in the underlying medical malpractice action. In support of this position, Rev. Smart relied on this court’s decision in Brumfield v. McElwee, 2007-0548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234.

The trial court heard all of the exceptions and overruled them. As to the exceptions of peremption, the trial court found that the peremptive period for legal malpractice did not begin to run until February 12, 2010, the date the Louisiana Supreme Court denied writs on the underlying exceptions of prescription. Based on this finding, the trial court held that Rev. Smart’s legal malpractice action filed on August 16, 2010 was timely. The defendant attorneys applied for a writ of certio-rari to this court, which was denied. They then applied to the Supreme Court, | ¿which granted them writ and remanded the case to the trial court “for reconsideration of its ruling in light of Jenkins v. Starns, 2011-1170 (La.1/24/12), 85 So.3d 612.” Smart v. Vazquez, 2011-1416, p. 1 (La.4/13/12), 85 So.3d 689.

The defendant attorneys then re-urged their exceptions. This time, the trial court held that the “continuous representation rule,” the gravamen of Jenkins v. Stams, could not serve to suspend the commencement of the peremptive period and that the three-year time period for peremption commenced in December of 2006 when the defendant attorneys allegedly failed to timely pay the requisite fees to the PCF. As Rev. Smart did not file his legal malpractice lawsuit until August of 2010, the trial court sustained the exceptions of per-emption and dismissed Rev. Smart’s lawsuit, with prejudice. This appeal followed. After the appeal was filed, Vazquez and Rawls and Mr. Rawls filed an exception of no cause of action directly with this court. For the reasons that follow, we affirm the ruling of the trial court and pretermit ruling on the exception of no cause of action.

ISSUES

Rev. Smart has raised several assignments of error, which we have consolidated into two:

I. Whether the trial court properly applied La. R.S. 9:5605, the Supreme Court’s opinion in Jenkins, and our decision in Brumfield to the facts of this case.
II. Whether the trial court erred in finding that the fraud exception in La. R.S. 9:5605(E) is inapplicable to the facts of this case.

| DISCUSSION

Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. C.C. art. 3458. The function of the peremptory exception is to have the plaintiffs action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action. La. C.C.P. art. 923. When the peremptive period has run, the cause of action itself is extinguished unless timely exercised. Id.

When an exception of peremption is filed, ordinarily the burden of proof is on the party pleading peremption. However, when peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not been perempted. Rando v. Anco Insulations, Inc., 2008-1163, p. 20 (La.5/22/09), 16 So.3d 1065, 1082; Metairie III v. Poche’ Const., Inc., 2010-0353 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, 449. When evidence is introduced and evaluated at the trial of a peremptory exception, appellate courts review peremptory exceptions by reviewing the entire record to “determine whether the trial court was manifestly erroneous with its factual conclusions.” Roadhouse Bar-B-Que, Inc. v. Certain Underwriters at Lloyds, 2004-1697, p. 5 (La.App. 3 Cir. 5/4/05), 909 So.2d 619, 623

Any discussion of legal malpractice in Louisiana properly begins with Louisiana Revised Stature 9:5605. This statute sets forth the time periods in which as action for legal malpractice must be brought, defines these time periods as peremptive, and sets forth the only exception to the strict application of these time periods. Section A of the statute provides that any suit for legal malpractice

17shall be brought ... within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

Section B of the statute states as follows:

The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

The statute itself is clear and unambiguous, and our jurisprudence interpreting this statute is well-settled. An action for legal malpractice must be brought within one year of the date of the act, omission, or neglect or within one year of the date of discovering the act, omission or neglect. In all events, a claim must be filed within three years of the date of the act, omission or neglect, regardless of when the act, omission or neglect is discovered. Jenkins v. Starns, 2011-1170, p. 13 (La.1/14/12), 85 So.3d 612, 620. In Reeder v. North, 97-0239, p. 9 (La.10/21/97), 701 So.2d 1291, 1295, and in Jenkins, the Supreme Court recognized the clear legislative intent of this statute, as well as its “perceived inequities.” The majority in Reeder noted:

[Tjhere is no doubt that the Legislature intended that three years after the “act, omission, or neglect,” the cause of action is extinguished, regardless of when the negligence is discovered and regardless of whether a malpractice action may be brought within that three-year period. The Legislature was aware of the pitfalls in this statute but decided, within its prerogative, to put a three-year absolute limit on a person’s right to sue for legal malpractice, just as it would be within its prerogative to not allow legal malpractice actions at all.

Id. at p. 9, 701 So.2d at 1297.

| sIn the instant case, the plaintiffs petitions allege that the defendant attorneys committed legal malpractice when they failed to timely pay the costs due to the PCF, thus allowing the claim to prescribe. It is undisputed that the latest these fees could have been paid to preserve the claim was December 28, 2006, forty-five days from the last of the two letters sent to plaintiffs counsel by the PCF in accordance with La. R.S. 40:1299.47(A). The failure to timely pay resulted in the claim prescribing. Thus, the failure to pay this fee is the alleged “act, omission or neglect” sued upon.

Rev. Smart did not file the instant legal malpractice claim until August 16, 2010, more than three years after this alleged malpractice. Accordingly, on the face of the pleadings, this legal malpractice claim is perempted, and the burden shifts to Rev. Smart to establish a defense to per-emption.

On appeal, Rev. Smart first argues in his brief that Jenkins only provided new substantive law on the one year period and that “consistent with Jenkins, Rev. Smart’s claim is within one year of when he got notice of the possible claim for legal malpractice.” Rev. Smart argues that he was unaware of the non-payment of the filing fees or the rejection of the filing fee by the PCF and was unaware that his case was lost until January 29, 2009, the date that the trial court granted the exceptions of prescription in the underlying medical malpractice action. Rev. Smart urges us to use the “date he reasonably could have known his case was lost” as the date that commenced his peremptive period. In support of his position, Rev. Smart relies on our decision in Brumfield v. McElwee, 2007-0548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234. Rev. Smart’s interpretation of Jenkins is incorrect, and ^ his reliance on Brumfield is misplaced.

| cRefore discussing these two cases, it is important to note that Rev. Smart did not present any evidence in the trial court to challenge the court’s factual finding that the defendant attorneys’ act of alleged legal malpractice occurred in December of 2006. Instead he argues that notwithstanding that fact, the date to be used to begin the running of the peremptive period is when Rev. Smart received notice of the malpractice. This argument is contrary to the well-settled jurisprudence on this issue. As stated by this court in Brumfield, the latest one can file a legal malpractice action is three years from the date of the alleged malpractice, or one year from the date of discovery of the alleged malpractice, whichever comes first. Brumfield, 2007-0548, p. 5, 976 So.2d at 239; Reeder, 97-0239, p. 5, 701 So.2d 1291, 1295.

In Brumfield, the client filed a legal malpractice action against a law firm and attorneys who had represented him in his underlying personal injury lawsuit, alleging his lawsuit had been dismissed, with prejudice, for abandonment due to the negligence of his attorneys. The attorneys filed exceptions of prescription, which the trial court granted, and we affirmed. In analyzing the issues in that case, this court used the date the underlying case was dismissed as to one defendant (February 1, 2001) as the date which commenced the peremptive period, finding that date to be the alleged “act, omission or neglect” complained of. As Mr. Brumfield did not file his lawsuit against his attorneys until August 18, 2005, more than three years later, we held his cause of action to be perempt-ed.

Rev. Smart finds it significant that the Brumfield court used the date the order of abandonment was signed as the date that triggered the peremptive period. He correctly notes that the provisions of Code of Civil Procedure article 561 (relative to abandonment) are self-operative. That is, after the passage of the |inrequisite time period, "with no step in the prosecution, the claim is abandoned, irrespective of when an order of abandonment is signed. Rev. Smart contends that this court’s use of the dismissal date, as opposed to the earlier “date of abandonment” is authority that the appropriate date to use in his case is January 29, 2009, the date the trial court granted the exception of peremption. This date, he asserts, is the “trigger” for the running of his three year peremptive period, rather than the date on which the lawyers in his case allegedly failed to timely pay the requisite fees to the PCF. Under this analysis, he argues, the suit filed August 16, 2010 was timely.

Brumfield is distinguishable from the instant case in several respects. In Brum-field, the plaintiff conceded that misconduct constituting malpractice had occurred on February 1, 2001, the date the trial court dismissed his claims as abandoned. Id., p. 11, 976 So.2d at 241. Because this date was more than three years prior to the filing of his legal malpractice suit, there was no need for the court in Brum-field to consider whether malpractice might have occurred at an earlier date that might have triggered the peremptive period. Additionally, Mr. Brumfield alleged in his petition that the act of malpractice was his lawyer’s failure to defend the abandonment, which occurred on the date his case was dismissed (not before). He asserted that the trial court had erred by dismissing his case as abandoned because his deposition, while not in the record, had been taken in the intervening time-period and would have served to defeat the motion to dismiss. Thus, the alleged negligence of the attorney was his “inaction resulting in the abandonment or failure to seek appellate relief from the alleged premature dismissal” of the case. Id.

|nIn the instant case, there is no question that the act of malpractice alleged by Rev. Smart is the failure of the defendant attorneys to timely assert his medical malpractice claim. This cause of action in legal malpractice clearly accrued when the Rev. Smart’s former attorneys failed to perfect the filing of the medical malpractice complaint by failing to pay the requisite fees to the PCF by December 28, 2006, the last date upon which those fees would be accepted. As the Louisiana Supreme Court has held, “once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney’s negligence caused him some loss, since' it is unlikely the attorney would have agreed to handle a claim completely devoid of merit.” Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La.1982). Because more than three years passed between the date the malpractice occurred in December, 2006, and the filing of the instant legal malpractice action in August, 2010, the trial court properly sustained the exception of peremption.

This conclusion is also in accord with Jenkins v. Stams, despite Rev. Smart’s contention that Jenkins supports his position in this case.

In the instant case, when the exceptions of peremption were first heard in the trial court, the court found that the peremptive period had not begun to run until the underlying medical malpractice case had ended, that is, until the Supreme Court had denied writs on the underlying exceptions of prescription and the defendant attorneys were no longer representing the client. Because the Supreme Court had denied writs in the underlying medical malpractice action in February of 2010, the trial court held that Rev. Smart’s legal malpractice petition filed in August of 2010 112was timely. The trial court’s decision was based on the continuous representation rule set forth by counsel for Rev. Smart both in his brief and in oral argument. On remand from the Supreme Court, with instructions from that Court to reconsider its ruling in light of Jenkins, the trial court held that the commencement of the peremptive period could not be suspended by the continuous representation rule. Finding that the peremptive period in this case had commenced when the defendant attorneys failed to pay the requisite filing fees, the trial court sustained the exceptions of peremption on the basis that that three years had elapsed between then and the filing of the legal malpractice lawsuit.

During oral argument in the trial court after remand, counsel for Rev. Smart stated that Rev. Smart was waiving his argument on the “continuous representation rule,” the gravamen of Jenkins. Instead, counsel argued, as he does here, that Jenkins stands for the proposition that even where the “act, omission or neglect” has occurred more than three years before the filing of the malpractice suit, the court must nonetheless look to the “notice” or “date of discovery” of the malpractice to determine when the peremptive period begins to run. This argument is based upon an incorrect interpretation of Jenkins.

Jenkins is a legal malpractice lawsuit which arose when a judgment debtor sued her former lawyer for allowing a default judgment to be rendered against her. The underlying suit was brought by a contractor, Mr. Medlock, against Ms. Jenkins alleging breach of a construction contract. Mr. Medlock alleged that Ms. Jenkins failed to pay him for his work in accordance with the terms of their contract. The contract governing the relationship between these parties was signed in April of | ^2006, and the lawsuit alleging breach of the contract was brought by Mr. Med-lock against Ms. Jenkins in November of 2006. Ms. Jenkins retained Mr. Starns to defend her in the lawsuit. While Mr. Starns was operating on what he believed to be an informal extension of time in which to answer the lawsuit, Mr. Medlock confirmed a default judgment against Ms. Jenkins. In December of 2006, Ms. Jenkins received notice of this default judgment and notified Mr. Starns. Mr. Starns filed a petition to annul the judgment, which was met with exceptions. These exceptions were sustained, and in April of 2007, Ms. Jenkins Petition to Annul was dismissed. In May of 2008, Ms. Jenkins appeared in court for a Judgment Debtor rule. In November of 2008, Ms. Jenkins filed the legal malpractice case against Mr. Starns that formed the basis of the Supreme Court’s opinion.

The parties in Jenkins recognized that the “act, omission or neglect” sued upon was the failure of Mr. Starns to timely file an answer to the lawsuit, thus allowing an adverse judgment to be secured against his client. As Ms. Jenkins did not file suit until more than a year after that judgment, she argued that Mr. Starns’ continuous representation of her suspended the commencement of the one-year peremptive period. The Supreme Court rejected that argument, finding that the one-year time period from the date of the “act, omission, or neglect” is peremptive when the client knows of the alleged malpractice. The Court specifically held that the fact that Mr. Starns was continuing to represent Mr. Jenkins in an effort to remedy his alleged wrong did not suspend the commencement of the peremptive period.

We first note that Jenkins differs from the instant case because the issue in Jenkins was whether the lawsuit had been filed within the one-year limitation | uperiod (rather than the three-year period) set forth in La. R.S. 9:5605. Thus, the issue of when the client knew or should have known of the alleged legal malpractice was relevant. Prior to Jenkins, the continuous representation rule could be applied to delay the date of discovery of the malpractice, which therefore delayed the commencement of the one-year period, but not the three-year period, relative to peremption. In the instant case, however, it is evident on the face of the record that the legal malpractice suit was filed more three years after the alleged act, omission or neglect. In such instances, the law is clear that the date of discovery is irrelevant. Hence, the trial court in this case, when the matter was remanded to it by the Supreme Court, properly held that its earlier decision, which had- relied on the continuous representation rule, was in error. The trial court also properly found that certain facts it had previously considered, namely — when Rev. Smart knew or should have known he had a claim for legal malpractice; the fact that his lawyers were still representing him; and the fact that the court’s ruling on prescription in the underlying medical malpractice case had not become final until February of 2010— were irrelevant to the tolling of the three-year peremption period. Because the “act, omission, or neglect” complained of in Rev. Smart’s petition was Vazquez and Rawls’ failure to properly pay the filing fees to the PCF in December of 2006, the suit filed by Rev. Smart more than three years later on August 16, 2010 was perempted. Rev. Smart’s assignment of error on this issue is therefore without merit.

11fiFraud

Finally, we address Rev. Smart’s allegation that because he has alleged legal malpractice based on fraud, pursuant to Louisiana Revised Statute 9:5605(E), neither the one-year nor the three-year peremp-tive periods apply to bar his lawsuit.

Louisiana Revised Statute 9:5605(E) provides that the “peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.” Civil Code Article 1953 provides that “[fjraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”

Rev. Smart asserts that this fraud exception should apply because his attorneys fraudulently concealed their malpractice from him with the intent of depriving him of his opportunity to bring this lawsuit and fraudulently induced him to hire them (“fraud in the inducement”).

Addressing these arguments, we first note that Louisiana courts of appeal have consistently rejected the idea that the concealment of legal malpractice constitutes fraud under Louisiana Revised Statute 9:5605(E). Broadscape.com, Inc. v. Matthews, 2007-0545, p. 12 (La.App. 4 Cir. 3/5/08), 980 So.2d 140; Atkinson v. LeBlanc, 03-365, p. 8 (La.App. 5 Cir. 10/15/03), 860 So.2d 60, 65 (where the alleged fraud was in the confection and assignment of a promissory note); Ratcliff v. Boydell, 93-0362, 92-0630, p. 12 (La.App. 4 Cir. 4/3/96), 674 So.2d 272, 280, amended as to interest on rehearing, (La.App. 4 Cir. 5/31/96) (where the alleged fraud involved the attorney’s misrepresentation of the value of a structured settlement to obtain an excessive fee). In Brumfield, 976 So.2d at 239-40, this court held that post-malpractice, fraudulent concealment does not constitute fraud as contemplated in the exception set forth in Louisiana Revised Statute 9:5605(E).

Nevertheless, Rev. Smart urges us to reconsider this “jurisprudentially created” interpretation of this statute. We see no reason to do so, especially in light of the facts of this case. There is no evidence in the record to support Rev. Smart’s claim that the defendant attorneys fraudulently concealed their alleged malpractice from him. The evidence actually supports a finding Rev. Smart was present when his underlying malpractice case was argued before the Fifth Circuit and was well aware (perhaps even before then) that his underlying medical malpractice claim was in jeopardy. Therefore, we reject Rev. Smart’s argument that his attorneys fraudulently concealed malpractice from him.

Alternatively, Rev. Smart argues that if we are not inclined to reconsider the jurisprudence on “post-malpractice fraudulent concealment,” we should nonetheless find “fraud in the inducement.” Essentially, Rev. Smart alleges that the defendant attorneys fraudulently induced him to hire them by purposely misleading him to believe that they were competent medical malpractice attorneys. Pretermitting whether this allegation could amount to fraud under Louisiana Revised Statute 9:5605(E), there is absolutely no evidence in the record that the defendants knowingly or intentionally sought to deceive Rev. Smart or to cause him harm. Moreover, Rev. Smart had an opportunity in the trial court to present evidence in support of these factual allegations but failed to do so. We therefore find this assignment of error to be without merit.

|17CONCLUSION

For the reasons stated, we find that the trial court did not err in granting the exception of peremption. We affirm the ruling of the trial court, and pretermit ruling on the exception of no cause of action.

AFFIRMED

      . This represented $100.00 for each health care provider sued.

      . Rev. Smart is one of four heirs who are the plaintiffs in this second PCF complaint.

      . The Fifth Circuit opinion contains internal inconsistencies regarding the dates on which certain events occurred. These inconsistencies do not afiect the accuracy of the legal analysis or the conclusion reached.

      . The ti'ial court found it unnecessary to rule on the remaining exceptions.

      . As stated earlier, the PCF letters were postmarked on November 1 and 13, 2006.

      . The continuous representation rule suggests that it is impractical and unfair to require a client to sue his own attorney while the attorney is still representing the client and attempting to remedy the wrong.

      . But see, Jenkins v. Starns and the majority’s treatment of the dissent by Judge McClendon in the opinion of the First Circuit.


source: Caselaw Access Project

author: JOY COSSICH LOBRANO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael G. DUNN, Jr.
    No. 2012-KA-1116.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.

      (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

|/The defendant, Michael Dunn, was charged by bill of information on October 23, 2009 with attempted second degree murder in violation of La. R.S. 14:27(30.1). Following trial, the defendant was found guilty as charged. He was later sentenced to twenty-five years at hard labor, with credit for time served. The defendant now appeals.

At trial, Sergeant Mark McCourt of the New Orleans Police Department (“NOPD”) testified that on August 20, 2007, at approximately 7:15 p.m., he responded to a call of gunshots in the 3700 block of Willow Street in New Orleans. Once he and his partner arrived at the scene, they were flagged down by a woman who told them that her cousin was covered in blood and was behind a nearby trailer. Behind the trailer, the officers found the shooting victim, Mr. John Gant, sitting on the ground with his back against the trailer. His shirt and lower half of his face were covered in blood. The officers summoned medical assistance and tried to communicate with the victim, but the victim had difficulty speaking due to |?his gunshot wounds. However, Sergeant McCourt stated that the victim was able to report that the person who shot him was an acquaintance of his known as Twan, which is short for Antoine. Sergeant McCourt testified that the victim told him that the gunman was approximately thirty years old, and had just gotten out of jail for burglary or robbery. The victim’s mother gave the officers a vague description of the gunman, describing him as a black male wearing a white shirt and white cap with plat-style braids underneath the cap. She was not able to identify the shooter for the officers. She said she was sitting in her trailer, looking out of the window, when she saw a black male walking up the front steps towards the porch firing a handgun. Sergeant McCourt identified the evidence seized by other officers at the crime scene.

Detective Douglas Butler testified that he conducted the follow-up investigation of the shooting, and learned that the victim gave information about the perpetrator’s identity to the officers who initially responded to the shooting. He did not go to the scene of the shooting, but visited the victim in the hospital several days later. Detective Butler was unable to interview the victim because he was in a coma. When Detective Butler went back several days later to check on the victim, he learned that the victim’s leg had been amputated. Several months after the shooting, an ATF (Bureau of Alcohol, Tobacco and Firearms) agent contacted Detective Butler to report that the victim had told him who the perpetrator was, and that the victim wanted to speak to Detective Butler about the | .¡incident. In early March 2008, Detective Butler and the ATF agent met with the victim at his residence, and the victim gave the name of the defendant, Michael Dunn, as the person who shot him.

After the victim told Detective Butler that Michael Dunn was the man who shot him, Detective Butler found a subject by the name of Michael Dunn in the depart-merit’s database and assembled a six-person photographic lineup. He brought the photographic lineup to the victim’s residence a day or two after his initial meeting with the victim, and the victim positively identified the defendant’s photograph, without any hesitation, as that of the person who shot him. The defendant was subsequently arrested.

The victim, Mr. Gant, also testified. He stated that on August 20, 2007, he was living with his mother in a trailer at 3736 Willow Street in New Orleans. He had just been dropped off at home after working that day on a construction job. He left the trailer to go to a grocery store. Realizing that he had forgotten something, he turned to go back to the trailer and heard someone approach him from behind. He turned around and saw the defendant, who cursed at him and began shooting at him, striking him five times. The first shot went through the victim’s mouth and lodged in the back of his head. The second shot bounced off his chest. He was shot two times in the back. The victim tried to run, and fell off the porch, breaking his leg. At that point, the defendant shot him one more time causing a graze wound. The victim stated that he was looking at the defendant for “a good ten seconds” during this incident.

|4The victim testified that he knew the defendant before the shooting, and had no doubt in his mind that the defendant was the person who shot him. He stated that the break in his leg from his fall off the porch was so severe that the leg had to be amputated. The victim now wears a prosthetic leg. He described the impact that his injuries from the shooting and fall have had on his life. He was in the hospital for nine months after he was shot. He stated that five doctors have told him he will never work again. In addition to the loss of his leg, the victim chokes every day, has only partial use of his right arm, has paralysis in one of his vocal cords and has a persistent ringing sound in his head.

When asked what happened when police officers arrived after the shooting, the victim stated that he did not remember what happened, did not remember talking to the police that day and did not remember giving the police officers at the scene the name of Twan as the person who shot him. The victim stated that he knows a lot of people named Twan, but had no reason to say that anyone named Twan had shot him. The victim knew the defendant prior to the shooting and recognized him as the person who shot him. He said that the defendant’s hair was in dreadlocks when the shooting occurred. He met with an NOPD officer in March 2008, when he was released from the hospital, to report who shot him. He said that before that time, he was contemplating seeking revenge personally against the defendant. The victim said that ATF agents with whom he was working undercover at the time of the shooting convinced him to contact the NOPD instead. He admitted to two prior convictions for bank robbery.

|sIn reviewing the record for errors patent, we note that during sentencing, the trial court failed to state that the defendant’s sentence must be served without benefit of parole, probation or suspension of sentence. See La. R.S. 14:27 and 14:30.1. However, in State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 798-99, the Louisiana Supreme Court stated:

Paragraph A of LA.REV.STAT. ANN. § 15:301.1 addresses those instances where sentences contain statutory restrictions on parole, probation or suspension of sentence.
In instances where these restrictions are not recited at sentencing, LA.REV. STAT. ANN. § 15:801.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court. Additionally, this paragraph self-activates the correction and eliminates the need to remand for a ministerial correction of an illegally lenient sentence which may result from the failure of the sentencing court to impose punishment in conformity with that provided in the statute.

Therefore, for the reasons stated in State v. Williams, supra, this Court does not need to take any action to correct this error. There are no other errors patent.

In his sole assignment of error, the defendant argues that the evidence presented was insufficient to support his conviction for attempted second degree murder because the State failed to negate any reasonable probability of misidentification. As this Court recently stated in State v. Galle, 11-0930, p. 31 (La.App. 4 Cir. 2/13/13), 107 So.3d 916, 935:

Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). Absent internal contradiction or irreconcilable conflict with the physical evidence, the testimony of a single witness, if believed by the trier of fact, is sufficient to support a factual conclusion. State v. Marshall, 2004-3139, p. 9 (La.11/29/06), 943 So.2d 362, 369.
Attempted second degree murder requires proof of a specific intent to kill. State v. Bishop, 2001-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437. Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. Id. Specific intent can be formed in an instant. State v. Cousan, 94-2503, p. 13 (La.11/25/96), 684 So.2d 382, 390. To obtain a conviction for attempted second degree murder, the State must prove the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. Bishop, supra. When identity is disputed, the State must negate any reasonable probability of misidentification in order to satisfy its burden under Jackson v. Virginia, supra. State v. Everett, 2011-0714, p. 15 (La.App. 4 Cir. 6/13/12), 96 So.3d 605, 619.

Id., p. 31, 107 So.3d at 935.

Under Jackson v. Virginia, supra, an appellate court is not called upon, in reviewing the evidence for sufficiency, to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence but whether, viewed in the light most favorable to the prosecution, there is sufficient evidence to support the conviction. State v. Galle, supra, p. 32, 107 So.3d at 935.

In arguing that the evidence in this case was insufficient to support his conviction, the defendant states that the evidence at trial was that the victim told police right after the shooting that a person named Twan or Antoine had shot him, but then told police seven months later that the shooter was a different person, Michael Dunn. The defendant argues that the victim was either mistaken or not telling the truth when he later identified the defendant as the shooter, and that the victim’s reasons for changing his story were nonsensical. Under these 17circumstances, the defendant argues that the evidence was insufficient to support his conviction for attempted second degree murder.

We review the reliability of an identification using the five-factor test of Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). Those factors are: (1) the opportunity of the witness to view the assailant at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the assailant; (4) the level of certainty demonstrated by the witness; and (5) the length of time between the crime and the confrontation. See State v. Collins, 01-1459, pp. 12-13 (La.App. 4 Cir. 8/21/02), 826 So.2d 598, 608, citing State v. McNeal, 99-1265, p. 6 (La.App. 4 Cir. 6/14/00), 765 So.2d 1113, 1117. The defendant argues that in applying these factors to this case, one must conclude that the victim’s identification of the defendant was unreliable because his prior description of his assailant was inaccurate and because the length of time between the crime and the confrontation was too long under the circumstances. He further argues that the victim’s delay of seven months before naming the defendant as the shooter is highly suspicious given the fact that he allowed the police to believe that the shooter was someone named “Antoine” for all those months. We find no merit in these arguments.

Applying the Manson factors to this case, the victim certainly had the opportunity to view his assailant at the time of the crime. Shortly after he walked out of his trailer, he heard someone approach him from behind and saw the defendant, someone he knew personally. He looked at the defendant for an estimated ten seconds while the defendant shot him five times at fairly close range. His attention was certainly riveted on the defendant as the victim awaited the next shot. As to the accuracy of his prior description, which the victim testified he does |8not remember giving to police at the scene, the testimony showed that one of the five gunshots pierced his mouth and lodged in the back of his head. Sergeant McCourt stated the victim gave him the name of “Twan” as that of his assailant, but also testified that it was very difficult to communicate -with the victim at the scene because one of the gunshots impaired the victim’s ability to speak. The victim’s level of certainty as to his identification of the defendant was very strong and was not affected by the passage of time between the crime and the confrontation; the victim knew the defendant personally and identified him without hesitation at the photographic lineup. He also testified unequivocally at trial that the defendant was the person who shot him on the evening of August 20, 2007.

By convicting the defendant, the jury in this case found the victim’s testimony credible. Applying the five-factor test of Manson v. Brathwaite, supra, the victim’s identification was established to be reliable. The State presented sufficient evidence to prove that the defendant shot the victim five times with the specific intent to kill. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found that all of the elements of attempted second degree murder were proven beyond a reasonable doubt, and that the State negated any reasonable probability of misidentification.

For the reasons stated above, we affirm the defendant’s conviction and sentence.

AFFIRMED

      . The State filed a multiple bill of information against the defendant, charging him as a third offender. However, as of the date that this appeal was lodged, no hearing had been held on the multiple bill.

      . Detective Butler could not remember the name of the ATF agent, and the agent did not testify at trial. The victim referred to the ATF agent as Officer McGregor in his testimony.


author: PAUL A. BONIN, Judge.

text:
    SUCCESSION OF Tara Elizabeth SCHMOLKE.
    No. 2012-CA-1630.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2013.

      Jack M. Alltmont, Brandon H. Robb, Sessions Fishman Nathan & Israel, L.L.C., New Orleans, LA, for Appellant, Bernard Burst, Jr., Yolanda Burst.

      Marc Lloyd Frischhertz, Lloyd N. Frischhertz, Jr., Frischhertz Poulliard Frischhertz & Impastato, L.L.C., New Orleans, LA, for Appellee, Darren Schmolke.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| ,Darren Schmolke, the independent administrator of this succession, amended the sworn descriptive list he had previously filed in these proceedings. Darren is the surviving spouse in community of the decedent, Tara Burst Schmolke, and the natural tutor of their minor child. The decedent died intestate. Her parents, Yolande and Bernard Burst, under the authority of a consent judgment, filed a motion to traverse the amended sworn descriptive list.

The principal issues before the trial court arise from the proper classification of assets and liabilities as community or separate property and the ensuing reimbursement claims which would result therefrom. After an evidentiary hearing, the trial court ordered further amendment by Darren of the descriptive list and rendered a judgment. The Bursts obtained an order designating the judgment as final and appealable, and timely appealed the judgment on the traversal. Darren answered the appeal of that judgment, but he did not appeal the consent judgment which he had previously entered into with the Bursts.

UAt the outset, we find that the trial court correctly decided that the Bursts did have standing to traverse the descriptive list. We too conclude that Darren is bound by the express terms of the consent judgment he entered with the Bursts and more fully explain our decision in Part II, post.

With respect to the classification and reimbursement issues, having reviewed the judgment on the traversal, we for the most part find that the trial judge was not clearly wrong in her determinations. We find, however, that the trial judge was clearly wrong in failing to re-classify the decedent’s $18,000 engagement ring from community to separate property, in the treatment of the proceeds of a $125,000 loan from the Hibernia Bank, and in allowing Darren’s $78,000 reimbursement claim. We explain our decision on each issue raised by the parties in more details in Parts III through VII, post.

We accordingly amend the judgment on the traversal and affirm it as amended. We also remand with instructions to the trial judge to inquire into the lack of tutorship proceedings, especially the lack of an appointment of an undertutor and, if necessary, take necessary remedial measures.

I

Tara and Darren were married on April 21, 2003. They had no matrimonial agreement modifying the legal regime of the community of acquets and gains. See [3La. Civil Code arts. 2327 and 2328. Shortly before her marriage, Tara acquired immovable property on Catina Street in New Orleans. Darren was the sole shareholder of a corporation known as Green Acres Towing, Inc. located on West Napoleon Avenue in Metairie, Louisiana. It is undisputed that Tara’s Catina property and Darren’s business were each one’s exclusive separate property, having been acquired prior to the establishment of the community property regime. See La. Civil Code art. 2341. These two separate assets are implicated in the contentions made by the parties to the present appeal.

During their marriage, the Schmolkes purchased immovable property on West Napoleon Avenue, which is the location at which Darren operated his auto repair business; it is undisputed that this property was community property. See La. Civil Code art. 2338. The acquisition of this property figures prominently in this dispute.

The Schmolkes were the parents of one child, a minor, who is Tara’s sole heir as well as a forced heir. See La. Civil Code arts. 888 and 1493 A. Tara died intestate on September 5, 2005, and the community property regime terminated on that date. See La. Civil Code art. 2356. Darren became entitled to the usufruct of his late wife’s share of the community property which devolved to their minor son until his remarriage on May 5, 2009. See La. Civil Code art. 890.

And upon Tara’s death the tutorship of the minor child belonged of right to Darren as a tutorship by nature. See La. Civil Code art. 250. As surviving spouse in community and natural tutor of the decedent’s sole heir, Darren obtained 14appointment as the independent administrator of Tara’s succession. See La. C.C.P. arts. 3396.5 and 3396.9.

Apparently dissatisfied with Darren’s handling of their daughter’s succession and concerned for the financial welfare of their grandson, the Bursts sought the appointment of a separate tutor of the minor’s property. See La. C.C.P. art. 4069. During the contradictory hearing on their petition, Darren and the Bursts entered into a consent judgment which stipulated that the Bursts were interested persons for the purposes compelling the filing of a sworn descriptive list and of traversing any such list filed.

Once the Bursts filed their traversal of his amended sworn descriptive list, Darren reversed course and argued that they had no standing. We now turn in the following Part to a fuller consideration of that contention and why we reject it.

II

Darren excepted to the Bursts’ pleading which sought the appointment of a separate tutor and undertutor of the minor child’s property. The basis of Darren’s exception was that the Bursts lacked “standing” to proceed in the succession; they were not heirs of their late daughter and they were not the tutors of the sole heir. The Bursts made several allegations about Darren’s suitability to attend to his son’s financial affairs. But then, as we stated, during the hearing on the matter Darren and the Bursts entered into a consent judgment. See La. C.C.P. art. 1916 B.

Among the matters covered in the consent judgment were the provision of a deadline for Darren to file a sworn descriptive list of assets and liabilities from | sTara’s date of death until the date of the judgment and another provision in which Darren “stipulates that [the Bursts] are both interested parties with regard to this Succession and that they have full rights to traverse the Accounting and/or Sworn Descriptive List and to take any and all such actions as may be taken by an interested party with reference to this Succession.” Also, the consent judgment provides, seemingly in emphasis, that Darren “stipulates that he will not contest their capacity to do so.” But that is precisely what he is now doing.

“When the facts alleged in the petition provide a remedy to someone, but the plaintiff who seeks the relief for himself is not the person in whose favor the law extends the remedy, the petitioner lacks standing.” In re Melancon, 05-1702, p. 10 (La.7/10/06), 935 So.2d 661, 668. “Any interested person may traverse the descriptive list at any time, on contradictory motion served on the person filing it.” La. C.C.P. art. 3137. Thus, an interested person is someone to whom the law extends a remedy to traverse a descriptive list and who would have standing.

Darren relies on a decision by the fifth circuit which found that grandparents, who are not heirs of and not the tutors of the minor heirs of the decedent, lack standing to traverse the descriptive list in their deceased child’s succession. See Succession of LeRuth, 561 So.2d 183 (La.App. 5th Cir.1990). The LeRuth court opined that “interested parties contemplate someone whose rights are being affected and therefore have standing to protect their own property |r,rights.” Id. at 184. The court explained that Article 3137 “does not envision, however well intended, permitting the grandparents of minor children to inject themselves into the administration of the succession on the theory that they are protecting the interest of the minors.” Id.

Because of the consent judgment, however, LeRuth is easily distinguished from the situation here. “Louisiana law gives consent judgments the authority of law: A consent judgment is a determination of the rights of the parties and acquires the authority of the thing adjudged.’ Thibodeaux v. Thibodeaux, 511 So.2d 102, 104-105 (La.App. 3rd Cir.1987).” Katner v. Katner, 09-0974, p. 4 (La.App. 4 Cir. 12/23/09), 28 So.3d 566, 570. Oftentimes a consent judgment is a means of effecting or enforcing a compromise. See DeSoto v. DeSoto, 694 So.2d 1043, 1045-1046 (La.App. 5 Cir. 4/29/97). “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. Civil Code art. 3071. Like any other contract, a compromise has “the effect of law for the parties.” La. Civil Code art.1983. And like any other contract, a compromise “must be performed in good faith.” Id.

By agreeing to the terms of the compromise which resulted in the consent judgment, Darren cannot renege on his explicit stipulation that the Bursts were interested persons for the purpose of traversing the descriptive list he filed. The compromise and the consent judgment govern. See Speyrer v. Gray Ins. Co., 11-1154, pp. 4-5 (La.App. 3 Cir. 2/1/12), 83 So.3d 1231, 1234. That the Bursts are | ./interested persons for the purpose of Article 3137 was finally settled by the rendition of the consent judgment, and we will not reconsider its provisions. Like the trial judge, we reject Darren’s contention on this point.

Ill

In this Part we address the Bursts’ claims that the trial court was wrong in its classification of the funds in a checking account and of the decedent’s jewelry.

A

Darren listed a checking account at a bank. Although he reported that the balance on the date of Tara’s death was $55,000, he asserted in his notes that $49,000 of that amount was his separate property. The balance of $6,000 was community, according to him, and thus only $8,000 was an asset of the succession. Darren testified that the $49,000 were the proceeds of the sale of property inherited from his parents and sold to his sister. He produced an act of sale dated three months before Tara’s date of death in which he and his brother received a cash payment of $136,000. He testified that his one-half of the proceeds amounted to about $68,000, which was deposited into the couple’s community checking account. He also testified that the checking account seldom exceeded deposits totaling more than $6,000. The Bursts did not introduce any documentary or testimonial evidence challenging Darren’s explanation of the source of the funds or produce any evidence which contradicted Darren’s version.

|s“Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate.” La. Civil Code art. 2340 (emphasis added). The burden of proof, which in this case is on Darren who claims that the $49,000 is his separate property, is by a preponderance of the evidence. See Talbot v. Talbot, 03-0814, p. 12 (La.12/12/03), 864 So.2d 590, 600 (“As a matter of public policy and in the interest of fairness, we find that the community presumption contained in Article 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community.”)

Because the Bursts offered no evidence to contradict Darren’s testimony, and his testimony is not contrary to documentary evidence, and they do not suggest that the community had sufficient funds on hand, we cannot say that the trial judge was clearly wrong in finding that Darren carried his burden of proof in showing that the $49,000 were the proceeds of the sale of his separate property. See Katner, 09-974, pp. 10-11, 28 So.3d at 574.

B

Darren reported on the descriptive list jewelry in the gross amount of $50,000, all of which he classified as community. He testified that he repackaged about $30,000 of the jewelry and gifted it to his late wife’s relatives. He admitted, however, that he purchased his late wife’s engagement ring at a local jeweler before their marriage and then subsequent to her death traded-in her engagement 19ring and received a credit of $18,000 toward the purchase of jewelry for his new wife.

With respect to the engagement ring, we find, based upon Darren’s own testimony, that the ring was a pre-marriage gift from him to Tara and was surely her separate property because it was property acquired by her prior to the establishment of the community. See La. Civil Code art. 2341. Cf. Statham v. Statham, 43,324, pp. 2-3 (La.App. 2 Cir. 6/11/08), 986 So.2d 894, 897. Thus, we conclude both that the Bursts carried their burden to prove that the engagement ring was separate property, and that the trial judge was clearly wrong in not so finding.

With respect to the remaining jewelry, we agree with Darren that the Bursts failed to overcome Article 2340’s presumption of community. Therefore, the descriptive list must be further amended to show jewelry as a community asset with a gross value of $32,000 and the succession’s interest valued at $16,000 and to show the engagement ring as a separate asset valued at $18,000.

Ill

In this Part we address the proper classification of the $125,000 loan proceeds from the Hibernia Bank and the consequences of the proper classification to the Bursts’ claims for reimbursement due their late daughter’s succession.

A

The decedent obtained a $125,000 line of credit from the bank which was secured by a second mortgage on the Cati-na Street property, which was her | ^separate property. (Darren listed this debt as the separate debt of his late wife.) The decedent drew down the entire proceeds of the line of credit on two different days. On the first day, Darren admits to expending $52,540 of the loan proceeds to pay separate debts incurred by him before the marriage and depositing an additional $22,460 into his auto repair business’ corporate account. On the second day, the Schmolkes applied $50,000 to the purchase of the West Napoleon Avenue property, which became community property.

Later, when the Catina Street property was sold after Tara’s death, the bank was repaid out of the proceeds of the sale of her separate property.

“An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.” La. Civil Code art. 2360. An obligation incurred by a spouse during the existence of the community regime may be separate, however, when it is incurred “not for the common interest of the spouses or for the interest of the other spouse.” La. Civil Code art. 2363. Because the obligation incurred by the decedent on the first day was clearly for the interest of the other spouse, Darren, in paying his separate debts and in enriching his separate business, and the one incurred on the second day was clearly for the common interest of the spouses in acquiring community property, the entire $125,000 loan is a community obligation.

^jjjBecause the decedent’s separate property was used to satisfy a community obligation, her succession “is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.” La. Civil Code art. 2365. Thus, the descriptive list must be amended to (1) re-classify the loan obligation as a community obligation, and, because the decedent’s separate property was used to repay the community obligation, (2) itemize the reimbursement the succession is due from Darren in the amount of $62,500.

B

There is an additional consequence to the re-classification of the $125,000 loan from separate to community. The pro ceeds of the loan are properly classified as community. Because $75,000 of the proceeds was used to pay Darren’s separate debts, Darren is obliged to reimburse an additional $87,500 to the succession, which sum is of course one-half of the amount used. “If community property has been used during the existence of the community property regime ... to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time is was used.” La. Civil Code art. 2364.

IV

We turn in this Part to examine the Bursts’ argument that the trial judge was clearly wrong in recognizing Darren’s claim for reimbursement of his separate h ¿funds for the acquisition of the West Napoleon Avenue community property; he listed his claim at $73,000.

He supplied no documentation to support a finding that he separately possessed such a sum of money at that time. The property was purchased in March 2004 and Darren did not sell his interest in the property he inherited until June 2005. He does not specifically identify any other source of such a sum. And just three months earlier, in late December 2003, he used money from Tara’s line of credit to pay $52,540 on his pre-marriage debts and to deposit an additional $22,460 in his business account.

If he had somehow acquired separate funds of that amount within the intervening three months, he surely should have been able to identify them. But he did not, and the record is void of anything by way of Darren’s explanation of the source of the funds other than to point to his business account, which is the same account into which -the proceeds of Tara’s line of credit had been deposited. Thus, simply because the $73,000 was found in his separate account, it cannot be reasonably inferred that the funds were in fact separate. We find that the trial judge was clearly wrong in concluding that Darren carried his burden to overcome the presumption that the funds were community. See La. Civil Code art. 2340. Accordingly, it is necessary that his - reimbursement claim for $73,000 be deleted from the descriptive list.

JjV

We now turn to Darren’s answer to the Bursts’ appeal, by which he objects to the trial judge’s disallowing his reimbursement claims relative to Tara’s Catina Street property and to the community’s West Napoleon Avenue property.

A

Darren’s $90,000 reimbursement claim related to Tara’s Catina Street property has several aspects. He highlights that the property was purchased by Tara less than two months before their marriage, and he claims that he contributed $50,000 of his funds to the down payment, which funds he received from the sale of a property he had owned and sold in anticipation of marriage. He then claims reimbursement for his labor and contracting services on Tara’s property, post-marriage and then post-death. He next claims that community funds were used to pay monthly installments on the mortgage from the date of their marriage until the date of Tara’s death and that his funds were used to pay monthly installments on the mortgage from Tara’s death until the sale of the property in 2008. The trial judge rejected all of these reimbursement claims.

To justify his reimbursement claim for his $50,000 contribution to the down payment, Darren relies upon La. Civil Code art. 2367.1. His reliance is misplaced. Reimbursement under that article is limited to those circumstances when the property of one spouse “has been used during the existence of the community property regime” for the acquisition of the other spouse’s property. La. Civil Code art. 2367.1. Because Darren and Tara were not yet married, the community 114property regime had not yet come into existence. Thus, the trial judge as a matter of law correctly rejected this portion of the claim.

With respect to Darren’s claim to compensate him for his labor and contracting services, he was entitled to make such a claim for such services rendered during the existence of the community property regime if Tara’s property had increased in value as a result of the uncompensated labor or industry of Darren. See La. Civil Code art. 2368. He has not informed us, however, of the legal basis for compensating such services after the termination of the community regime upon Tara’s death. But, in any event, the trial judge found that any labor or contracting services actually rendered by Darren were inconsequential; they extended to putting up guardrails and grading the yard. We have examined the record and conclude that the trial judge’s factual finding about the worth of any services is not clearly wrong and is reasonable.

With respect to those portions of the reimbursement claim for monthly mortgage payments by the community during its existence and thereafter by Darren until the sale of the decedent’s property, the trial judge rejected both portions because the family resided in the home before Tara’s death and after her death Darren and the child continued to reside there. She determined that these payments were in lieu of rental payments or of the rental value for the use and occupancy of the home. We agree.

[ 1BThus, all Darren’s claims for reimbursement related to the Catina Street property are properly deleted.

B

Darren claims reimbursement due him for his expenditure of his separate funds to pay the monthly installments on the mortgage for the community-owned West Napoleon Avenue property. He argues that his separate auto-repair business paid the $3,700 monthly installment, a community obligation, from April 2004 until December 2008 for a total of $99,900. Here again the trial judge reasoned that his separate business benefited from the use and occupancy of the community property, but he did not credit any amount to the community from that benefit. In effect she concluded that the monthly expenditures were in lieu of rent. Again, we agree. Thus, Darren’s claim for reimbursement related to the West Napoleon Avenue property is properly deleted.

VI

In this Part we return to a consideration of the Bursts’ complaint about two incidental matters concerning the judgment. Their first complaint concerns the refusal of the trial judge to disallow Darren’s claim for an estimated administrator’s fee and for the estimated fees of the attorneys. The second concerns the failure to render a money judgment against Darren for his indebtedness to the succession and thereby protect the minor child’s financial interest in his late mother’s succession. We address each of these complaints, but |1fiwe first point out that the Bursts have not specified as error the trial court’s refusal to remove Darren as independent administrator or to restrict his independent administration of the succession beyond the injunctive relief granted in the consent judgment (see n. 3, ante). See La. C.C.P. art. 3396.20.

A

An administrator of a succession is allowed a “reasonable amount” as a fee for his services. La. C.C.P. art. 3351. The fee may be set by agreement of the administrator with the surviving spouse and all competent heirs. Id. In the absence of such an agreement the administrator “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.” Id.

The Bursts argue that the trial judge should have denied any fee to Darren because of, what they characterize as, Darren’s intentional maladministration of the succession, which exceeds even gross negligence. The Bursts do not dispute, however, that the claimed fee is less than the amount statutorily authorized in the absence of an agreement.

Where a succession representative is guilty of gross negligence in handling of the succession, he is not entitled to a fee. See Succession of Vazquez, 07-0816, p. 7 (La.App. 4 Cir. 1/16/08), 976 So.2d 209, 215 (and cases cited therein). In Vazquez, however, the trial court removed the executor and denied an executor’s fee to him. Here, the trial judge did not find “good cause” for the removal of Darren and, most importantly for our purposes, the Bursts have not sought review of that determination. Thus, in the absence of Darren’s removal as administrator, we cannot say that the recognition of his entitlement to an administrator’s fee less than that statutorily authorized is clearly wrong as a matter of fact or even simply wrong as a matter of law.

The Bursts also complain about the estimated fees of the succession’s attorneys, which is $7,500. The Bursts have only made conclusory statements that the fees were not incurred in the course of defending the succession’s interest. They have not pointed us to any specific matter in the record for which attorneys’ fees were incurred which did not qualify as rendering service to the succession nor have they explained how such a fee in the aggregate is excessive when considering the contentious issues they themselves have urged to the court. There is no mention in the transcript of the fees, and the succession’s attorneys were not examined about their billing. Because the trial judge, however, had the benefit of personally observing the legal work performed by the succession’s attorneys, we defer to her evaluation that the fees charged to date is for work performed in the interest of and for the benefit of the succession. See, e.g., Westcott v. Westcott, 08-1339, pp. 4-5 (La.App. 4 Cir. 4/17/09), 11 So.3d 45, 50 (noting, “a trial judge is permitted to call upon his own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case.”)

B

The Bursts also argue that the trial judge erred in failing to render a money judgment against Darren in order to protect the financial interests of his minor child, their grandchild. They also press for the judgment to include judicial interest.

Importantly, the Bursts only raised this issue for the first time in a motion for new trial. The motion to traverse Darren’s amended sworn descriptive list did not seek such relief and no petition for a money judgment has been filed. And the Bursts have not explained upon what legal authority such a judgment could be rendered at this stage of the succession proceedings.

We note that Darren cannot be discharged as the independent administrator until he files a final account with the court. See La. C.C.P. art. 3396.19. At that time, he will have to show that he has enforced all obligations in favor of the succession. See La. C.C.P. art. 3211. We do not assume at this point in time that Darren will not reimburse the succession all sums that he has been judicially determined to owe. And not until the administration is concluded and he seeks discharge can that determination be made.

Therefore, we cannot grant at this time the relief which the Bursts seek.

|inIn the meantime, however, there are other means to protect the minor’s interest. During oral argument here, counsel for the parties informed us that Darren has never sought confirmation as the child’s natural tutor by opening tutorship proceedings. See La. C.C.P. arts. 4031 et seq.

As the natural tutor, Darren is accountable. See La. Civil Code art. 249. In order to qualify as the natural tutor, Darren must take an oath to discharge faithfully the duties of his office as well as “cause a legal mortgage in favor of the minor be inscribed, or furnish security, in the manner provided by law.” La. C.C.P. art. 4061. See also La. C.C.P. arts. 4134 and 4135.

In addition to the tutor’s responsibilities, a tutorship proceeding also includes the appointment of a “responsible person” as the undertutor. La. C.C.P. art. 4201. The undertutor .“shall act for the minor whenever the minor’s interest is opposed to that of the tutor.” La. C.C.P. art. 4202 (emphasis added); see also La. Civil Code art. 278 (“The undertutor who fails or neglects to cause to be inscribed in the manner required by law, the evidence of the minor’s legal mortgage against his tutor, shall be liable for all the damages which the minor may sustain in consequence of such failure or neglect.”) The undertutor’s role is that of a watchdog. See Green v. City of Shreveport, 39,066, p. 4 (La.App. 2 Cir. 10/27/04), 888 So.2d 314, 317 (noting that the duty of an undertutor to the minor is “to exercise a constant supervision or watchdog role over the acts of the tutor”), 1 gncited with approval in In re Helm, 11-0500, p. 6 (La.App. 4 Cir. 11/2/11), 84 So.3d 601, 605.

Thus, we conclude that the most appropriate means for protecting the interests of the minor child at this time is by compliance with the law respecting tutorship proceedings.

REMAND INSTRUCTIONS

On remand, we direct that the district judge inquire into this matter and, if no tutorship proceeding has been commenced as represented to us, she shall require that Darren qualify for the office of natural tutor as provided by law. See La. Civil Code art. 248. Because the record suggests that the minor is no longer domiciled in Louisiana, the tutorship proceedings shall be filed in accord with La. C.C.P. art. 4032 or in these proceedings. Moreover, the district judge shall insure that there will have been appointed a responsible person as undertutor for the minor.

DECREE

The trial court judgment dated April 27, 2012, is amended in the following particulars: (1) the decedent’s one-half interest in the community’s jewelry is reduced from $25,000 to $16,000; (2) the value of decedent’s engagement ring, which was her separate property, is $18,000; (3) the $125,000 loan from Hibernia Bank is to be listed as a community obligation; (4) Darren Schmolke is obliged to reimburse the succession his one-half share of that amount, or $62,500; (5) Darren Schmolke is obliged to reimburse the succession one-half of the community funds expended on his separate debts, or $37,500, and (6) Darren Schmolke’s claim for 1 ^reimbursement in the amount of $73,000 is deleted from the descriptive list. In all remaining matters, the judgment is affirmed and as amended affirmed. And the matter is remanded to the district court with instructions.

AMENDED AND AFFIRMED AS AMENDED; REMANDED

      . Just as the parties did in briefs, we are using the Schmolkes’ first names for ease of reference.

      . In addition to a detailed judgment, the trial judge issued separate written reasons. The judgment was silent as to some of the issues raised on appeal (as were the trial judge’s reasons). “Silence in the judgment one this claim constitutes rejection of the claim. Louisiana law has held that an absence of written adjudication of a litigated issue is construed to mean that there was no award under that claim, and it is rejected.” Katner v. Katner, 09-0974, p. 13 (La.App. 4 Cir. 12/23/09), 28 So.3d 566, 576. See also Sewell v. Argonaut Southwest Ins. Co., 362 So.2d 758, 760 (La.1978), and R.G. Claitor's Realty v. Juban, 391 So.2d 394, 398 (La.1980).

      . Other covered matters included Darren's obligation to obtain the release of the West Napoleon Avenue property as security for an appeal in which he was personally cast in judgment and an injunction against Darren alienating or encumbering property “that currently belongs to or formerly belonged to the Succession of Tara Elizabeth Schmolke.”

      . Darren did not appeal the consent judgment, and any challenge to it is not covered by his answer to the Bursts' appeal. See La. C.C.P. art. 2133 A.

      . Darren testified that the funds were used to satisfy an outstanding balance owed to First American bank in connection with the acquisition of his separate business.

        . A spouse’s liability for reimbursement under these circumstances may be limited, however, “to the value of his share of all community property after deduction of all community obligations.” La. Civil Code art. 2365.

      . This is the entry V(D)(1) on the amended descriptive list filed on October 28, 2011.

      . This is the entry V(D)(2) on the amended descriptive list filed on October 28, 2011.

      . This is the entry V(D)(3) on the amended descriptive list filed on October 28, 2011.

      . La. C.C.P. art. 3396.20 provides:
      The court on motion of any interested person, after contradictory hearing, may remove an independent administrator for any of the reasons provided in Book VI for which a succession representative may be removed. In addition, the court on motion of any interested person, after a contradictory hearing, may for good cause order that the letters of independent administration be withdrawn and that the succession thereafter be administered under the procedures set forth elsewhere in Book VI, other than those contained in this Chapter.

      . Of course, Darren "has no absolute right to the [administrator's] fee provided for in La. C.C.P. art. 3351 until he has completed the administration of the succession and has filed his final account.” Vasquez, id. "The compensation of a succession representative shall be due upon the homologation of his final account. The court may allow an administrator or executor an advance upon his compensation at any time during the administration.” La. C.C.P. art. 3351. (We express no view whether Darren’s entitlement to the collection of his fee as a fiduciary is conditioned upon his first reimbursing the succession the amounts due.)

      . A tutorship proceeding was not required for Darren to obtain appointment as independent administrator. See La. C.C.P. art. 3396.9.


author: ROLAND L. BELSOME, Judge.

text:
    Yolanda DAVIS v. GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY d/b/a USAA and Benjamin Brown.
    No. 2012-CA-1673.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 2013.

      Edward J. Womac, Jr., Jason F. Giles, Barrett R. Stephens, Law Offices of Edward J. Womac, Jr. & Associates, LLC, New Orleans, LA, for PlaintifflAppellant.
    James R. Nieset, Jr., Ralph J. Aucoin, Jr., Porteous, Hainkel & Johnson, LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU).
   ROLAND L. BELSOME, Judge.

liThe plaintiff, Yolanda Davis, appeals the trial court’s judgment enforcing a settlement agreement. Because there is no proof of a valid settlement, we reverse.

FACTS AND PROCEDURAL HISTORY

This personal injury lawsuit stems from an alleged automobile accident that occurred in a parking lot in New Orleans between Ms. Davis and Benjamin Brown. After the alleged accident, the parties entered into settlement negotiations. During these negotiations, Ms. Davis’ attorney signed a letter addressed to Garrison Property and Casualty Insurance Company, Mr. Brown’s insurer, which read:

In response to your recent demand, I have been given final authority by my client to settle her claims for a total of $6,200.00.

In response to the letter, Garrison immediately sent a correspondence to Ms. Davis’ attorney, indicating that the claim was settled, and that a $6,200 check was sent under separate cover. Garrison further requested that the plaintiff sign and return a release enclosed with its correspondence. Several months later, Garrison sent a second correspondence to Ms. Davis, through her |2attomey, indicating that the check had not cleared the bank and requesting that the check be cashed as soon as possible.

Shortly thereafter, Ms. Davis filed suit against Mr. Brown and Garrison. Garrison filed an answer, and, later, a motion to enforce a settlement agreement. Briefs were filed, and a hearing was held. At the conclusion of the hearing, the trial court ruled in favor of Garrison, finding “there was a deal.” The trial court later executed a written judgment in favor of Garrison. Before the written judgment was executed, Garrison submitted a proposed judgment. Ms. Davis’ attorney disagreed with language in the proposal that dismissed the entire case with prejudice, claiming that she had an unresolved property damage claim that was not included in the settlement. The judgment enforced the settlement of Ms. Davis’ bodily injury claims only, dismissed Ms. Davis’s bodily injury claims with prejudice, and retained Ms. Davis’s “supplemental” property damage claims.

The parties then filed cross-motions for new trial. Ms. Davis claimed that the correspondence did not create a valid agreement because her attorney did not have express authority in writing to settle her claims. Ms. Davis also noted that she had a supplemental property claim that was not part of the bodily injury settlement at issue. On the other hand, Garrison argued that all of Ms. Davis’ claims, including her property damage, were settled. After hearing the cross-motions, the trial court executed a written judgment granting in part and denying in part both motions. The trial court opined that “a valid and enforceable settlement was reached as to all of Yolanda Davis’ claims against Garrison | .^Property and Casualty Company except for her property damage claim.” This appeal followed.

STANDARD OF REVIEW

This Court’s recent jurisprudence reveals that we apply the manifest error appellate standard of review to a judgment granting a motion to enforce settlement. Sileo v. Berger, 11-295, p. 8 (La.App. 4 Cir. 9/28/11), 74 So.3d 753, 758, writ denied, 11-2396 (La.12/16/11), 76 So.3d 1208 (citing Howard v. Louisiana Citizens Property Ins. Corp., 10-1302, pp. 2-3 (La.App. 4 Cir. 4/27/11), 65 So.3d 697). “ ‘The district court made a factual determination that a contract existed between the parties when the court ruled on the motion to enforce settlement agreement. Thus, we apply the manifest error or clearly wrong standard.’” Howard, p. 3, 65 So.3d 697 (quoting Rogers v. Mumford, 08-1144, p. 5 (La.App. 3 Cir. 2/4/09), 6 So.3d 848, 851).

DISCUSSION

The sole issue before us is whether the trial court erred in finding that the parties entered into a valid settlement for Ms. Davis’ bodily injury claim.

“A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. C.C. art. 3071. “A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” La. C.C. art. 3072. “A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” La. C.C. art. 3076. It is not required that the offer and acceptance be in one writing. Grace v. Zapata Off-Shore Co., 95-112, p. 2 (La.App. 4 Cir. 3/29/95), 653 So.2d 704, 706. As the Supreme Court stated in Felder v. Georgia Pacific Corp., 405 So.2d 521 (La.1981), “where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La. C.C. art. 3071, has been perfected.” Id. at 523-24.

In support of his argument that the parties did not enter into a valid settlement, Ms. Davis contends that there was no proof that her attorney had express authority to settle her claim. In Chaisson v. Progressive Security Ins. Co., 12-532, p. 6 (La.App. 5 Cir. 2/21/13), 110 So.3d 1147, 1150, the Fifth Circuit held that correspondence setting forth terms of a settlement offer signed by the insured’s attorney, indicating that he had specific authority to settle the case, was sufficient to satisfy the statutory writing requirement for a valid compromise. We agree. However, in Chaisson, the sole issue was whether a lawyer can bind his or her client to a settlement, without the client’s signature. There was no dispute as to what matters were included in the settlement.

A compromise is valid only if “there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached.” Elder v. Elder & Elder Enterprises, Ltd., 06-703, p. 3 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 350 (citations omitted). Here, the question before us is whether the lawyers had a meeting of the minds as to which matters were included in the settlement. Thus, Chaisson is distinguishable from the instant case. Ms. Davis’ counsel’s original communication states that he was given final authority to settle her “claims” for $6,200. Garrison’s response reflects that it accepted Ms. Davis’ settlement offer, and it further requested that she sign a release, which indicated | Kthat her bodily injury and property damage claims were settled in full. Once the trial court granted Garrison’s motion to enforce the settlement, Ms. Davis maintained that the settlement only included her bodily injury claim, and Garrison maintained that the settlement included the entire claim. The trial found the property damage claim to be excluded from the settlement, even though the settlement documents were silent on that issue. Without a meeting of the minds, there can be no binding settlement. Accordingly, we find that the trial court was manifestly erroneous in finding that a valid settlement for Ms. Davis’ bodily injury claim existed, because the record does not support a meeting of the minds. The trial court’s ruling is reversed, and we remand for proceedings consistent with this opinion.

REVERSED AND REMANDED