author: GARRETT, J.

text:
    STATE of Louisiana, Appellee v. Patrick Price WILLIAMS, Appellant.
    No. 48,486-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Peggy J. Sullivan, Louisiana Appellate Project, for Appellant.
    Charles Rex Scott, District Attorney, Geya D. Prudhomme, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and GARRETT, JJ.
   GARRETT, J.

| |The defendant, Patrick Price Williams, pled guilty to nine counts of molestation of juveniles. He was sentenced to serve 15 years at hard labor on each of counts one through six and 20 years at hard labor on each of counts seven through nine. The sentences were ordered to be served consecutively. The sentences imposed totaled 150 years at hard labor. The defendant now appeals the sentences. For the following reasons, we affirm the convictions and sentences.

FACTS

Williams was charged with molestation of nine juvenile males. The offenses began in 1988, when Williams was 20-21 years old and continued until 2012, when one of the victims alerted authorities to the offenses. Williams was a volunteer firefighter, helped with his father’s lawn service, was married, and attended church. Williams and his wife had a special needs child and also provided foster care for three brothers. One of the foster children reported the abuse to the pastor at the church he attended with the Williams family. An investigation was conducted which revealed a longstanding pattern of abuse of boys between the ages of 11 and 17. Some of the children were related to Williams, some worked in the lawn service, some were volunteer firefighters, and some were foster children in the Williams home. Williams admitted the behavior to law enforcement officers.

Williams was arrested and charged with nine counts of molestation of a juvenile, violations of La. R.S. 14:81.2. On December 18, 2012, Williams pled guilty as charged to counts one through five and counts seven through 12nine. Regarding count six, the defendant entered a plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Williams was fully informed of the rights waived by entering the guilty pleas. He fully acknowledged that no promises or representations had been made to him regarding the sentences that could be imposed. He was also advised that, at the time counts one through six were committed, the penalty for molestation of a juvenile under La. R.S. 14:81.2, when the offender had control or supervision over the juvenile, was a fine of not more than $10,000, or imprisonment, with or without hard labor, for not less than one nor more than 15 years, or both. When counts seven through nine were committed, the penalty for this offense, when the offender had control or supervision over the juvenile, was a fine of not more than $10,000 or imprisonment, with or without hard labor, for not less then five nor more than 20 years, or both. Williams was informed of the requirements under La. R.S. 15:543 to register as a sex offender. The trial court accepted the guilty pleas and the Alford plea made by Williams. Prior to sentencing, the trial court undertook a complete review of the record which contained all of the discovery, police reports, and the defendant’s confession, all of which cata-logued in great detail the horrific acts committed by the defendant over a lengthy period of time.

Williams appeared before the trial court for sentencing on December 19, 2012. The trial court recited for the record extensive reasons | ¡¡for the sentences to be imposed. The trial court sentenced the defendant to the maximum period of incarceration for each offense, with the sentences to run consecutively.

Williams timely filed a motion to reconsider the sentences, claiming the sentences were excessive. The motion was denied by the trial court in a written opinion. The trial court stated that, because Williams has continuously molested teenage boys for almost a quarter of a century, it is reasonable to believe that, if he were ever released, he would molest and continue to offend. The trial court found that Williams should never be released from custody. The trial court concluded that the circumstances warranted absolute maximum sentences on each of the nine counts of molestation, to be served consecutively.

EXCESSIVE SENTENCE

The defendant appealed, contending that the trial court erred in imposing sentences of 15 years at hard labor on each of counts one through six and 20 years at hard labor on each of counts seven through nine. According to Williams, the consecutive nature of the sentences resulted in a total of 150 years at hard labor. He argues that the sentences are unconstitutionally harsh and excessive and constitute nothing more than a needless imposition of pain and suffering. Under the circumstances of this case, these arguments are without merit.

Legal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show |4that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Elmore, 46,833 (La.App.2d Cir.12/14/11), 80 So.3d 731, writ denied, 2012-0006 (La.4/27/12), 86 So.3d 627. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Elmore, supra.

Second, a sentence violates La. Const, art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Elmore, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Elmore, supra.

| ⅞As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. McKinney, 48,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,289 (La.App.2d Cir.4/30/08), 981 So.2d 792. The trial court has wide discretion in the imposition of sentences within the statutory limits and such sentences should not be set aside as excessive in the absence of a manifest abuse of that discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, supra.

La. R.S. 14:81.2 provides in pertinent part:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile’s age shall not be a defense.

As discussed above, La. R.S. 14:81.2(B)(2) currently provides:

Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard 16labor, for not less than five nor more than twenty years, or both. The defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.

Further, as set forth above, at the time counts one through six were committed, the penalty for this offense, when the offender had control or supervision over the juvenile, was a fine of not more than $10,000, or imprisonment, with or without hard labor, for not less than one nor more than 15 years, or both.

La. C. Cr. P. art. 883 provides in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently^]

Discussion

Prior to imposing the sentences, the trial court allowed the state and the defense to offer arguments regarding sentencing. The state outlined the facts of each offense. On count one, Williams was charged with molesting J.E.H. from 1988 to 1990, beginning when the victim was 13 years old. The victim was related to the defendant and would sometimes stay at the Williams residence. Williams furnished alcohol, cigarettes, and pornography to the victim and eventually engaged in masturbation, oral sex, and anal sex with him more than 100 times.

On count two, Williams was charged with molesting H.N.H. from 1995-1997. This victim was 13 years old when the molestation began. The |7victim did lawn work with Williams. Williams touched the victim and engaged in oral sex with him. He also photographed the victim while he was showering and posted the photograph online.

On count three, Williams was charged with molestation of M.J.S. from 1996-1997, when the victim was 15 or 16 years old. The victim did lawn work with Williams. The victim engaged in three-way sexual acts with Williams and the defendant’s wife as well as having oral and vaginal sex with Mrs. Williams.

On count four, Williams was charged with molestation of C.T.G. between 1996 and 1999, beginning when the victim was 11 years old. C.T.G. was a family friend and sometimes spent the night at the Williams home. C.T.G. found a pornographic magazine in the bathroom. The defendant caught the victim looking at the magazine. This led to talk about sex which progressed to Williams fondling and engaging in oral sex with the victim. Over a period of several years, the defendant molested the victim 50 to 100 times. The victim was allowed to view pornography and had oral and vaginal sex with Mrs. Williams.

On count five, Williams was charged with having oral sex with D.S. in 1997, when the victim was 16 years old. D.S. did yard work with Williams. The victim also had sex with Mrs. Williams. The victim said that this abusive encounter with Williams and his wife happened only one time.

On count six, Williams was charged with touching the penis of S.B. in 2000, when the victim was 15 years old. This incident occurred while Williams and the victim were working as volunteer firefighters.

|sOn count seven, Williams was charged with molesting D.C. by having oral and anal sex with the victim in 2008-2011, beginning when the victim was 12 years old. Williams also masturbated in front of the victim, who was a foster child in the Williams home.

On count eight, Williams was charged with molesting J.D.C. in 2012 when the victim was 15 or 16 years old. The victim was a foster child in the Williams home. Williams would go into the victim’s room in the morning and check to see if he had an erection. Williams asked the victim about sexual dreams. This would lead to masturbation, fondling, oral sex, and anal sex. Williams would shower with the victim and collect the victim’s sperm in a plastic container when he masturbated. Williams would then drink the fluid in front of the victim.

On count nine, Williams was charged with molesting J.C. in 2012, when the victim was 15 or 16 years old. This victim was also a foster child in the Williams home. J.C. told Williams about a sexual encounter he had with another minor. Williams took advantage of the situation and began masturbating and having oral sex with the victim and drinking the victim’s sperm.

The state argued that the victims had been afraid to come forward. The state noted that some of the victims are now married with children. According to the state, some of the victims have undergone extensive counseling and others have gone down the path of drug and alcohol abuse in trying to deal with the offenses and to suppress and forget what occurred. The state asked for the maximum penalty on each count, to run |flconsecutively. The state argued that, due to the horrific nature of the offenses, sentencing the defendant to the maximum on each count, with the sentences to run consecutively, “only barely scrapes the surface of some sort of peace and closure in this case because what has been done to these individuals is horrible and inexcusable.”

The defendant’s attorney argued that Williams had taken responsibility for his actions and pled guilty in order to mitigate the harm to the victims. The defendant cooperated from the earliest stages of the investigation and maintained that he was responsible for his wife’s involvement in the offenses. Williams also gave information to law enforcement officers about others who were victimizing children. The defense attorney stated that Williams was sincerely remorseful for the offenses.

Williams addressed the court before sentencing. He said that he was truly sorry for the offenses and that his wife’s actions were a result of his influence. He stated that the responsibility for the offenses was his alone. He pointed out the number of volunteer hours he had given to the community. Williams stated that he had been the victim of a similar offense when he was nine years old and expressed the hope that the victims in this case received the help that he did not receive. Williams told the court, “anything you can sentence me to is nothing compared to what I deserve after hearing what I’ve done to these young men and their families.”

[ inThe trial court complied with La. C. Cr. P. art. 894.1 in imposing the sentences in this case. As mitigating factors, the trial court considered that Williams and his wife have a special needs child. The trial court also noted the defendant’s statement of remorse, the fact that Williams was molested as a child, the defendant’s confession in this case, and the entry of guilty pleas. In spite of any mitigating factors, the trial court determined that Williams is a terrible sexual predator of children and “this pattern of outrageousness and the gross level of predatory conduct,” perpetrated over a quarter of a century, warranted a maximum sentence.

The trial court noted that Williams was 45 years old. His predatory behavior began in 1988 and had spanned almost 25 years. The defendant’s pattern of behavior was to gain the trust of young boys, begin asking intimate questions, and then move on to touching, oral sex, masturbation, anal sex, and sometimes, sex with the defendant’s wife. In some cases, Williams would join them, “making it a threesome.” On some occasions, vibrators and other items of equipment would be used along with pornographic material. The trial court agreed with a comment by the attorney for Mrs. Williams that the defendant “really bartered his wife’s sexual services in exchange for his gay sex to gratify his own desires.” The court noted that some of the victims were molested as many as 100 times. The trial court also observed that some of the victims have been haunted for a significant period of time since these events.

The trial court considered the sentencing factors under La. C. Cr. P. art. 894.1 and found that there was an undue risk that, if the defendant |, Received any leniency, he would commit another crime. The trial court found that Williams was in need of correctional treatment in a custodial environment best provided by his commitment to the Department of Corrections. The trial court determined that lesser sentences than those imposed would deprecate the seriousness of the offenses. According to the trial court, the offenses involved extreme cruelty to children who were particularly vulnerable and incapable of resistance due to their youth and status in life.

The imposition of the maximum sentences in this case, with the sentences to be served consecutively, are not constitutionally excessive. Given the extensive length of time during which these offenses were committed, the large number of victims, the vulnerability of the juvenile victims, and the egregious, perverse, and depraved nature of the offenses committed, the defendant qualifies as a “worst offender” and his behavior qualifies as the “worst offenses.” The sentences are not grossly out of proportion to the seriousness of the offenses and do not shock the sense of justice. The offenses were not based on the same act or transaction, and did not constitute parts of a common scheme or plan. Therefore, the trial court acted properly in ordering that the sentences be served consecutively.

After reviewing all of the factors in this case, we find that the trial court acted within its discretion in sentencing Williams to serve 15 years at hard labor on each of counts one through six and 20 years at hard labor on |1geach of counts seven through nine, with the sentences to be served consecutively.

CONCLUSION

For the reasons set forth above, we affirm the convictions and sentences of the defendant, Patrick Price Williams.

AFFIRMED.

      . An Alford plea contains a protestation of innocence when a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. North Carolina v. Alford, supra.

      . The initials of the victims are used in accordance with La. R.S. 46:1844(W).

      . According to the record, it appears that the defendant’s wife pled guilty to unspecified charges and was also scheduled to be sentenced. The record is silent as to what charges were lodged against her and any actual sentence she may have received.


source: Caselaw Access Project

license: Public Domain

text:
    Ray ATKINS, Plaintiff-Appellee v. DG FOODS, Defendant-Appellant.
    No. 48,490-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 25, 2013.

      Charles W. Farr, LLC, by Charles W. Farr, for Defendant-Appellant DG Foods.
    Young & Dunlap, LLP, by Joseph R. Moore, for Plaintiff-Appellee Ray Atkins.
    Before BROWN, PITMAN and GARRETT, JJ.
   GARRETT, J.

|,A workers’ compénsation judge (“WCJ”) granted a default judgment finding that the claimant, Ray Atkins, contracted carpal tunnel syndrome (“CTS”) while employed at the defendant, DG Foods. Mr. Atkins was awarded indemnity and medical benefits, as well as penalties and attorney fees. DG Foods appealed. For the following reasons, we reverse the WCJ’s ruling, vacate the default judgment, and remand for further proceedings.

FACTS

Mr. Atkins became employed as a chicken deboner at DG Foods in January 2012. He ceased his employment at the end of March 2012. He filed a disputed claim for compensation on September 18, 2012, alleging injuries to his “wrist, shoulder, and hands” on February 22, 2012, and that he reported an accident and injury to DG Foods on February 24, 2012. He asserted that he was denied wage and medical benefits and an evaluation by a physician of his choice. He requested penalties and attorney fees in addition to indemnity benefits.

DG Foods did not answer the claim. The WCJ signed an order granting a preliminary default and set the matter for confirmation of default on December 10, 2012. At the hearing, Mr. Atkins appeared with counsel before the WCJ. No representative from DG Foods was present.

Mr. Atkins testified that he started work as a chicken deboner at DG Foods at the beginning of 2012. He claimed that this job required constant motion of the hands. Mr. Atkins said that his arm began to hurt on a Tuesday and the next morning he did not have any feeling in his hand. He also stated that his wrist was swollen. He claimed that he showed his arm to |2the line leader and a “lady in the office.” He was told to go to a doctor and let the company know what was going on. Mr. Atkins went to the Morehouse Community Medical Centers, Inc. (“MCMC”), in Bas-trop. He was provided an unsigned document entitled “Certificate to Return to Work/School.” The unsigned document, dated February 20, 2012, was apparently generated by a Jaequlyn Sneed, LPN. The document provided:

Ray Atkins, had an appointment with Morehouse Community Medical Centers, Inc. at our Main Clinic site on 02/20/2012 05:55 PM. Ray is able to return to work/school with the following restrictions: Please note that due to medical problems Ray is not able to work constantly with his hands. He is not able to return to work until 2/22/2012.

Mr. Atkins claimed he was also sent to E.A. Conway Hospital where a physician named Dr. Belchic did a nerve test and diagnosed him with CTS. He was given a brace for his arm, medication, and was instructed to follow up with his family physician.

Mr. Atkins testified that he notified DG Foods of his diagnosis, but was told that he had not been working at the company long enough to receive workers’ compensation benefits. He stated that he did not have any money to go to a doctor and, at the time of the hearing, had been out of work for 10 months. According to Mr. Atkins, while employed at DG Foods, he made $7.25 per hour and worked 40 hours per week.

In response to questioning by the WCJ, Mr. Atkins claimed that his arm began to hurt two or three days after he began work at DG Foods. He was told by personnel at DG Foods that the soreness would go away. Mr. Atkins claimed that he experienced discomfort in both hands. He asserted |sthat his left hand was swollen and he had a knot on his right wrist. He stated that he had previously worked on a seasonal basis for six or seven years at a warehouse making bales of cotton, beginning when he was 17 years old. Later, he worked for about two years as a porter at a car dealership, washing cars. That job ended when the dealership closed in 2009. Mr. Atkins testified that he had no other employment until he began working at DG Foods.

The WCJ determined that Mr. Atkins’ counsel was unfamiliar with the provisions of La. R.S. 23:1031.1(D). Because the claimant had been working at DG Foods for less than 12 months, he was presumed not to have contracted an occupational disease in the course of and arising out of his employment. However, the statutory presumption is rebuttable. After a brief recess, the WCJ allowed the attorney the opportunity to further address Mr. Atkins on this issue.

Mr. Atkins testified that he last washed cars at the car dealership in 2009. He denied any repetitive motion in washing cars and stated that he just sprayed them off and wiped them down. Mr. Atkins said that he developed CTS as a result of the work he was doing at DG Foods. He maintained that he had not received any treatment for his wrists prior to developing the condition at DG Foods.

On December 14, 2012, the WCJ signed a default judgment in favor of Mr. Atkins which confirmed the ruling made in open court on December 10, 2012. The WCJ found that on January 20, 2012, Mr. Atkins |4suffered an injury resulting in CTS while in the course and scope of his employment with DG Foods. Mr. Atkins was awarded temporary total disability (“TTD”) benefits of $290 per week from the date of the injury until he is released by his physician to return to his previous job or until DG Foods accommodates him within the restrictions provided by his physician. The WCJ found that Mr. Atkins was entitled to his choice of physician. The WCJ found that DG Foods was arbitrary and capricious in failing to pay indemnity benefits to Mr. Atkins and awarded a penalty of $2,000. The WCJ also determined that DG Foods was arbitrary and capricious in failing to pay Mr. Atkins’ medical bills and in failing to authorize his choice of physician. An additional penalty of $2,000 was awarded. The WCJ awarded Mr. Atkins $4,000 in attorney fees. DG Foods suspensively appealed from the judgment.

DEFAULT JUDGMENT AND OCCUPATIONAL DISEASE

DG Foods essentially argues that Mr. Atkins failed to establish a prima facie case that he contracted CTS during the course of his employment with DG Foods because he did not present any medical |aevidence to prove his claim. The company asserts that the WCJ erred in confirming the default judgment and in granting benefits, penalties, and attorney fees to Mr. Atkins. This argument has merit.

Legal Principles

La. R.S. 23:1316.1, dealing with confirmations of default in workers’ compensation proceedings, provides:

A.A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. A prima facie case shall include but not be limited to proof of the following:
(1) The employee’s average weekly wage.
(2) The existence of an employer-employee relationship at the time of the work-related accident.
(3) The occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease.
(4) Entitlement to benefits under the provisions of this Chapter.
C. Medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers. All other evidence may be presented by sworn affidavit.

A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art, 1702; Nickerson v. Finance Am. of La., 47,876 (La.App.2d Cir.2/27/13), 110 So.3d 1216; Nickens v. Patriot Home Sys., 97-0291 (La.App.1st Cir.6/29/98), 713 So.2d 1179. A prima facie case is established when the claimant proves the essential allegations of the petition, with competent evidence, to the same extent as if the allegations had been specifically denied. Nickerson v. Finance Am. of La., supra; Howard v. A & M Const. Co., 93-1013 (La.App.1st Cir.4/29/94), 637 So.2d 575. In other words, the plaintiff must present competent evidence that convinces the court that it is probable that he would prevail at a trial on the merits. Horne v. Lowe’s Home Imp., 35,683 (La.App.2d Cir.2/27/02), 810 So.2d 1235.

A prima facie case shall include but not be limited to proof of the employee’s average weekly wage; the existence of an employer-employee relationship at the time of the work-related accident; the occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease; and entitlement to benefits under the provisions of this Chapter. La. R.S. 23:1316.1(B); Nickerson v. Finance Am. of La., supra.

17Regarding occupational diseases, La. R.S. 23:1031.1 provides in pertinent part:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, ... shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome[.]
D. Any occupational disease contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by a preponderance of evidence. [Emphasis supplied.]

Where an employee worked for an employer for less than 12 months, there is a rebuttable statutory presumption that the employment did not cause the occupational disease. That presumption can be overcome if the employee proves by a preponderance of the evidence that the disease was contracted during the employment, specifically proving that there is a disability which is related to an employment-related disease, the disease was contracted during the course of employment, and the disease is a result of the work performed. Johnson v. Johnson Controls, Inc., 38,495 (La.App.2d Cir.5/12/04), 873 So.2d 923. See Fite v. Louisiana Title Co., 36,393, 36,394 (La.App.2d Cir.10/24/03), 859 So.2d 259, writ denied, 2003-3230 (La.2/20/04), 866 So.2d 829; Ball v. Wendy’s Int’l, Inc., 36,922 (La. App.2d Cir.3/5/03), 839 So.2d 1208, writ denied, 2003-0978 (La.5/30/03), 845 So.2d 1056; Hymes v. Monroe Mack Sales, 28,-768 (La.App.2d Cir.10/30/96), 682 So.2d 871.

The causal link between an employee’s occupational disease and work-related duties must be established by a reasonable probability. The claimant will fail if there is only a possibility that the employment caused the disease, or if other causes not related to the employment are just as likely to have caused the disease. Hymes v. Monroe Mack Sales, supra; Myles v. Printpack, Inc., 35,355 (La.App.2d Cir.1/23/02), 806 So.2d 172.

Expert testimony is required to support a finding of an occupational disease. Fite v. Louisiana Title Co., 2002-2607 (La.6/27/08), 852 So.2d 988; Ball v. Wendy’s Int’l, Inc. supra; Myles v. Printpack, Inc., supra; Shields v. GNB Technologies, Inc., 33,911 (La.App.2d Cir.10/4/00), 768 So.2d 774; Hymes v. Monroe Mack Sales, supra. A court should not find an occupational disease solely on the basis of lay testimony. Price v. City of New Orleans, 95-1851 (La.App.4th Cir.3/27/96), 672 So.2d 1045, writ denied, 1996-1016 (La.10/25/96), 681 So.2d 360.

There is no entitlement to a default judgment absent strict compliance with procedural requirements. Where a claimant does not comply with the requirements of La. R.S. 23:1316.1 in presenting statutorily sufficient medical evidence, he is not entitled to a default judgment. See Nickens v. Patriot Home Sys., supra. See also Davis v. Petroleum Club of Lafayette, 2001-2818 (La.1/11/02), 806 So.2d 654; Morgan v. Lowe’s Home Centers, Inc., 45,699 (La.App.2d Cir.11/3/10), 54 So.3d 1114; Home v. Lowe’s Home Imp., supra; Crescent City Const., Inc. v. Camper, 2003-1727 (La.App.1st Cir.12/30/04), 898 So.2d 408; Harris v. American Citadel, 2001-1967 (La.App.1st Cir.9/27/02), 835 So.2d 640; Rowan Cos., Inc. v. Benoit, 2001-0657 (La.App.1st Cir.5/10/02), 818 So.2d 952, writ denied, 2002-1446 (La.9/13/02), 824 So.2d 1175; Rogers v. Custom Built Garage, 2001-0356 (La.App.1st Cir.3/28/02), 814 So.2d 693; Nickens v. Patriot Home Sys., supra.

Discussion

To confirm his default judgment against DG "Foods, Mr. Atkins was required to show that he contracted CTS while working for DG Foods. Because he had only been employed at the company for a few weeks when he claimed he developed CTS, he was also required to rebut the presumption contained in La. R.S. 23:1031.1(D). As stated above, expert testimony is required to support a finding of an occupational disease. Statutorily sufficient medical evidence shall include oral testimony or certified medical records from all treating and all examining health care providers. La. R.S. 23:1316.1(C). The only exhibit offered into evidence by Mr. Atkins did not satisfy the requirements of La. R.S. 23:1316.1.

Mr. Atkins offered only his own self-serving testimony that he contracted CTS in the short time he was employed at DG Foods. He claimed he was treated at MCMC and diagnosed with CTS at E.A. Conway | ^Hospital by Dr. Belchic. However, Mr. Atkins failed to present any oral testimony or certified medical records from treating or examining health care providers to establish that he contracted CTS in the few weeks that he worked at DG Foods. Absent such proof, Mr. Atkins failed to make a prima facie case to support his claim. The WCJ erred in confirming the default judgment in his favor and in awarding indemnity and medical benefits, as well as penalties and attorney fees.

CONCLUSION

For the reasons stated above, we reverse and vacate the judgment of the WCJ, confirming a default judgment in favor of the plaintiff, Ray Atkins, and awarding him indemnity and medical benefits, as well as penalties and attorney fees. The matter is remanded to the Office of Workers’ Compensation for further proceedings. Costs in this court are assessed to the plaintiff, Ray Atkins.

REVERSED; DEFAULT JUDGMENT VACATED; REMANDED.

      . The WCJ’s judgment provides that Mr. Atkins was injured on January 20, 2012, although he claimed in his pleadings that his injury occurred on February 22, 2012. We also note that the WCJ applied the incorrect standard in evaluating the entitlement to benefits this matter. The standard is not an injury suffered in the course and scope of the employment. La. R.S. 23:1031 provides that, if an employee, not otherwise eliminated from receiving workers' compensation benefits, receives personal injury by accident arising out of and in the course of employment, his employer shall pay compensation in the amounts, on the conditions, and to the person or person designated by the workers compensation statutes.

      . We note that the WCJ again applied the incorrect standard in awarding penalties and attorney fees based upon a finding that the employer was arbitrary and capricious in failing to pay benefits. La. R.S. 23:1201(F) specifies that penalties and attorney fees may be assessed against an employer who fails to pay benefits unless the claim is reasonably controverted.

      . La. C.C.P. art. 1702 was amended by 2013 La. Acts No. 78, § 1, to provide in pertinent part:
      A judgment of default must be confirmed by proof of the demand that is sufficient to establish a prima facie case and that is admitted on the record prior to confirmation. The court may permit documentary evidence to be filed in the record in any electronically stored format authorized by the local rules of the district court or approved by the clerk of the district court for receipt of evidence!.]

      . At the time many of these cases were decided, La. R.S. 23:1316.1(C) provided that medical evidence shall include oral testimony or a sworn narrative report from all treating and examining health care providers. The statute was amended by 2004 La. Acts No. 341, § 1, to substitute "or certified medical records” for "or a sworn narrative report.” However, the requirement of statutorily sufficient medical evidence remains.


author: MAX N. TOBIAS, JR., Judge.

text:
    BRENNAN’S, INC. v. Edward Tuck COLBERT, Kenyon & Kenyon, Leon H. Ritenberg, Jr., and Baldwin Haspel, L.L.C., f/n/a Baldwin & Haspel, L.L.C.
    No. 2013-CA-0943.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2013.
    Opinion on Denial of Rehearing Nov. 15, 2013.
    Tim Gray, Jason K. Elam, Forman Perry Watkins Krutz & Tardy, LLP, New Orleans, LA, for Plaintiff/Appellant.
    Gustave A. Fritchie, III, Edward W. Trapolin, Irwin Fritchie Urquhart & Moore, LLC, New Orleans, LA, for Defendant/Appellee.
    Kent A. Lambert, Jan M. Hayden, Sarah K. Casey, Brian M. Ballay, Baker, Donelson, Bearman, Caldwell & Berkowiz, PC, New Orleans, LA, for Intervenor/Ap-pellee.

      (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   MAX N. TOBIAS, JR., Judge.

|,We have reviewed the motions to dismiss the present appeal filed by (a) Edward Tuck Colbert and Kenyon & Kenyon and (b) Brennan’s Claims LLC and the two-volume record on appeal in the captioned matter. For the reasons that follow, we dismiss this appeal, finding the trial court had been divested of jurisdiction to enter an order dismissing other appeals once the trial court signed an order in other cases granting an appeal.

We note with particularity the decision of this court in Brennan’s Inc. v. Colbert, 12-0145, unpub. (La.App. 4 Cir. 12/12/12), 2012 WL 6560967, at *1, where we held:

Based upon a review of the record that has been lodged with this Court, we have determined that we cannot review the issues raised by the parties in this appeal, as the appeal record is incomplete and missing material parts of the trial court record. Therefore, we remand the matter to the trial court to order the Clerk of Civil District Court to perfect the record to include the transcripts of all proceedings as well as all documents filed in the trial court in Brennan Inc. v. Edward Tuck Colbert, Kenyon & Kenyon, Leon Rittenberg, Jr., and Baldwin Haspel, L.L.C., F/N/A Baldwin & Haspel, Civil District Court, Orleans Parish, Case # 1205-08471 [sic]; Division “K-5.” Once the record is complete and lodged pin this Court, the Clerk of this Court shall re-docket the appeal. See La. C.C.P arts. 2127 and 2128.

The record presently before us reflects that following our decision (a remand order) of 12 December 2012 in case bearing our docket number 2012-0145, Brennan’s Inc. filed a motion to dismiss appeals with prejudice in the trial court on 7 March 2018. The following day, the trial entered the following order:

IT IS HEREBY ORDERED, ADJUDGED and DECREED that all appeals or rights to appeal currently maintained by Brennan’s, [sic] Inc. with regard to the (1) Judgment in favor of Edward Tuck Colbert and Kenyon & Kenyon dated March 31, 2011 against Brennan’s, [sic] Inc., in the principal amount of $2,124,199.72 plus legal interest until paid, bearing Instrument Number 1049191; (2) the [sic] Judgment in favor of Edward Tuck Colbert and Kenyon & Kenyon dated June 14, 2011 against Brennan’s, [sic] Inc. in the total principal amount of $809,085.78, plus legal interest until paid, bearing Instrument Number 1056022, and; [sic] (8) the [sic] Judgment in favor of Edward Tuck Colbert and Kenyon & Kenyon against Brennan’s, [sic] Inc. dated March 29, 2011, dismissing all legal malpractice claims and any other claims asserted against Edward Tuck Colbert and Kenyon & Kenyon by Brennan’s, Inc. in the captioned matter, be and are hereby DISMISSED with prejudice, never again to be reinstated. [Emphasis in original.]

On 9 May 2013 at 11:27 a.m., Brennan’s Inc. filed a motion to reconsider and vacate the “March 7, 2013” [sic] consent order of dismissal in the trial court; the trial court issued a show cause setting a hearing on the motion for 13 June 2013. On that same day at 11:28 a.m., Brennan’s Inc. filed a motion for devolutive appeal in the trial court of “the March 7, 2013 [sic] order of dismissal.” The trial signed an order on 9 May 2013 that reads in pertinent part as follows:

IT IS ORDERED that the motion is hereby GRANTED and that Brennan’s, [sic] Inc. be and hereby granted a devol-utive appeal from the March 7, 2013 [sic] order of dismissal.
| ¡¡IT IS FURTHER ORDERED that the appeal is returnable to the Fourth Circuit Court of Appeal as provide by law.!! [Emphasis in original.]

On 5 June 2018, Edward Tuck Colbert and Kenyon & Kenyon filed an opposition to the 9 May 2013 Brennan’s Inc. motion to reconsider and vacate the “March 7, 2013” order of dismissal. The record before us reflects no evidence of any hearing actually held on 13 June 2013.

The appeal presently before us was ordered by the trial court on 9 May 2013. We determine this by interpreting the language contained in this court’s decision of 12 December 2012, where this court did not vacate the previous order of appeal or render a decision on the merits of the prior appeal; rather, we merely returned the appeal record to the clerk of the trial court to prepare a complete record. See La. C.C.P. art. 2128.

La. C.C.P. art. 2088 A states:

A. The jurisdiction of the trial court over all matters in the case renewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
(1) Allow the taking of a deposition, as provided in Article 1433;
(2) Extend the return day of the appeal, as provided in Article 2125;
(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;
(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the |4appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
(6) Grant an appeal to another party;
(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;
(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or
(10) Set and tax costs and expert witness fees.

This codal article, when reviewed in connection with jurisprudential interpretations thereof, establishes that the trial court lacked jurisdiction to dismiss any prior appeal when it signed its 8 March 2013 order quoted above. See James v. Formosa Plastics Corp. of Louisiana, 01-2056, pp. 7-8 (La.4/3/02), 813 So.2d 335, 340; Succession of Illg, 179 La. 291, 154 So. 2 (1934); James v. Fellows, 23 La.Ann. 37, 1871 WL 6794 (1871); Barnes v. L.M. Massey, Inc., 93-1080, p. 3 (La.App. 1 Cir. 5/20/94), 637 So.2d 799, 801 (“When a trial court grants an order for an appeal, jurisdiction is divested from the trial court and attaches in the appellate court. The trial court retains authority over certain matters unaffected by the appeal, enumerated in art. 2088, but dismissing the appealed judgment is not one of these. Therefore, during the pendency of the appeal, the trial court had no jurisdiction to dismiss the original judgment which it had rendered.” [Citations omitted] )

In JCM Construction Co., Inc. v. Orleans Parish School Board, 02-0824, pp. 49-50 (La.App. 4 Cir. 11/17/03), 860 So.2d 610, 639, we considered a similar fact situation:

Mr. Gegg contends that the trial court’s judgment and order of January 8, 2003 granting the School Board’s motion for new trial and vacating the trial court’s judgment of November 9, 2001 is defective and violates LSA-C.Civ.Pro arts. 1951, 2087 and 2123. According to the School Board’s motion for appeal filed by Mr. Riess, the latest date on which the School Board had actual notice of the judgments of November 9 and 29, 2001 was February 8, 2002.
The School Board’s motion for new trial came before the trial court in December, 2002, well after the parties filed their appeals in this Court and nearly a year after the School Board admits that it had actual notice of the rendition of the November, 2001 judgments.
The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal, or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction only over those matters not reviewable under the appeal. LSA-C.Civ.Pro. art. 2088. Since none of the exceptions to this provision contained in article 2088 are applicable to the action taken by the trial court in January, 2003, the trial court’s order granting the School Board’s motion for new trial and vacating the judgment of November 9, 2001 is null and void. [Emphasis supplied.]

See also, Hughes v. Energy & Marine Underwriters, Inc., 08-801, p. 3 (La.App. 5 Cir. 2/25/09), 8 So.3d 743, 744 (“We note a jurisdictional defect. Under LSA-C.C.P. art 2088, the jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches or on the granting of the order of appeal in the case of a devolutive appeal. Thereafter, with certain exceptions, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal but dismissing the case is not one of these.”)

Finally, in Tealwood Properties, LLC v. Succession of Graves, 47,466, p. 11 (La.App. 2 Cir. 9/20/12), 105 So.3d 120, 127, the court stated: “[a] judgment entered by a trial court after jurisdiction is divested is an absolute nullity.” As an appellate court, we have the “duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue.” Williams v. International Offshore Services, Inc., 11-1240, p. 6 (La.App. 1 Cir. 12/7/12), 106 So.3d 212, 217.

We conclude that the trial court’s order of 8 March 2013, dismissing the appeals of Brennan’s Inc.’s claims against Edward Tuck Colbert and Kenyon & Kenyon, including the three money judgments, is absolutely null and void because the prior appeal, that which was docketed in this court under our docket number 2012-0145, was still pending in this court, having only been returned to the trial court for supplementation of the record for the appeal and upon return to this court to be assigned a new docket number. That the motion of Brennan’s Inc. has attached to it a copy of a notarized document by Brennan’s Inc.’s president to dismiss all appeals is of no moment because it serves only to explain why counsel was filing the 7 March 2013 motion.

Since the order of 8 March 2013 is an absolute nullity, it follows that an order permitting an appeal of that order is likewise null and void because no appeal lies from an absolutely null order.

Accordingly, we conclude that the motions of (a) Edward Tuck Colbert and Kenyon & Kenyon and (b) Brennan’s Claims LLC to dismiss the appeal of l7Brennan’s Inc. of the 8 March 2013 order must be granted. IT IS SO ORDERED.

APPEAL DISMISSED.

ON APPLICATION FOR REHEARING

liThe applications for rehearing of the intervenor, Brennan’s Claims LLC, and Edward Tuck Colbert and Kenyon & Kenyon, LLP, are denied.

Our decision of 25 September 2013 dismissed only the appeal of the trial court’s order granting an appeal of the 7 March 2013 order. The trial court was without authority to dismiss the underlying appeal on 7 March 2013, having been divested of jurisdiction of the case. (The motion to dismiss the appeal should have been filed in this court, not the trial court, for our action.) Our 25 September 2013 decision does not address the appeal of the matters appealed in case number 2012-CA-0145, wherein our decision remanded the case to the trial court for completion of the record “to include the transcripts of all proceedings as well as all documents filed in the trial court in Brennan Inc. v. Edward Tuck Colbert, Kenyon & Kenyon, Leon Rittenberg, Jr., and Baldwin Haspel, L.L.C., FINIA Baldwin & Haspel, Civil District Court, Orleans Parish, Case # 1205-08471 [sic]; Division “K-5.” Once re-docketed with the missing transcripts and documents under a new docket number in the court, that appeal may proceed and Brennan’s Inc. may then ask this court to dismiss its appeal.

      . Normally, because no motion for new trial was filed from the 8 March 2013 order, a request for a devolutive appeal had to be filed no later than 14 May 2013; therefore, the 9 May 2013 motion for appeal would be timely if valid.

      . As we said, "perfect the record to include the transcripts of all proceedings as well as all documents filed in the trial court.”


author: JAMES F. McKAY, III, Chief Judge.

text:
    Michael Roger DAVIS v. Sandra Frisk Davis GRAVOIS.
    No. 2013-CA-0439.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 25, 2013.

      Beau P. Sagona, Daniel J. Poolson, Jr., Eric J. Derbes, The Derbes Law Firm, L.L.C., Metairie, LA, for Plaintiff/Appellant.
    Eugene P. Redmann, Metairie, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MADELEINE M. LANDRIEU).
   JAMES F. McKAY, III, Chief Judge.

|! This case deals with the partition of a military pension between former spouses. The plaintiff, Michael Roger Davis, appeals the trial court’s awarding the defendant, Sandra Frisk Davis Gravois, one-half of his monthly military pension benefit multiplied by the number of years of the plaintiffs service in the military during his marriage to the defendant, divided by the total number of years of the plaintiffs service in the military, retroactive to the date of the plaintiffs retirement from the military. The plaintiff has also filed a peremptory exception of prescription. For the following reasons, we affirm the trial court’s judgment as amended and maintain the plaintiffs peremptory exception of prescription, as well as remand the matter to the trial court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

On July 31, 1961, Michael Roger Davis began active duty service in the United States Marine Corps. At the time he enlisted, Mr. Davis was a resident of Michigan. On April 6, 1967, Mr. Davis married Sandra Frisk, a native of | ^Minnesota, in Waterton, South Dakota. Following their marriage, Mr. Davis adopted his wife’s two minor children. During the marriage, Mr. and Mrs. Davis lived in a number of states and he was posted overseas on several occasions.

On or about May 31, 1981, Mr. Davis relocated to Louisiana pursuant to military orders. Immediately before he relocated to Louisiana, he had been stationed overseas. Mrs. Davis also relocated to Louisiana in May of 1981. The parties had been having marital difficulties for some time and shortly after coming to Louisiana, Mrs. Davis announced that she wanted a divorce:

On August 26, 1981, Mr. Davis filed a petition for divorced based on the grounds that the parties had lived separate and apart for more than one year. However, on September 25, 1981, Mr. Davis moved to dismiss his petition. Then, on October 25, 1981, he filed a new petition for divorce. On November 4, 1981, the parties were divorced.

Following the divorce, Mrs. Davis was briefly remarried and her last name changed to Gravois (hereinafter she will be referred to as Ms. Gravois). She then returned to Minnesota and worked for the school system for eighteen years before retiring.

On November 18, 1983, Mr. Davis married his current spouse, Dianne Lemoine Davis. He was promoted in rank to master gunnery sergeant on August 1, 1985 and retired from the United States Marine Corps on July 1, 1987. Mr. Davis has continuously resided in Louisiana since 1981.

|3On October 3, 2011, Ms. Gravois filed a supplemental petition for judicial partition of community property and a sworn descriptive list of community property seeking a one-half interest in Mr. Davis’s military retirement. Mr. Davis filed an answer on December 14, 2011. Mr. Davis denied that a community ever existed and maintained that Ms. Gravois had no claim to his military retirement; he also asserted that Michigan law should apply in this case. The matter proceeded to trial on August 22, 2012.

At the time of trial, Mr. Davis received approximately $2,500.00 per month from his military pension. He also received $250.00 per month as a disabled veteran in addition to $1,250.00 in Social Security benefits. His current spouse received $750.00 per month from her pension as well as $132.00 from Social Security.

At the time of trial, Ms. Gravois received $1,000.00 per month from her Minnesota School System pension and $1,065.00 in Social Security benefits. Ms. Gravois had also lived with a Daniel Korn-mann for the past twelve years; she and Mr. Kornmann shared household expenses.

On November 30, 2012, the trial court issued its judgment applying Michigan substantive law to the case. The trial court awarded Ms. Gravois a portion of Mr. Davis’s military pension to be calculated as follows: one-half of Mr. Davis’s monthly pension benefit multiplied by the number of years of Mr. Davis’s sendee in the military during his marriage to Ms. Gravois, divided by the total |4number of years of Mr. Davis’s service in the military. The trial court also made its award retroactive to the date Mr. Davis began drawing his military pension. It is from this judgment that Mr. Davis now appeals. Mr. Davis has also filed a peremptory exception of prescription in this Court.

DISCUSSION

On appeal, Mr. Davis raises the following assignments of error: 1) while correctly recognizing that Michigan law applies, the lower court awarded to Ms. Gravois too much of Mr. Davis’s pension by failing to consider all factors in reaching a fair and equitable division of the property in light of all the circumstances, including the duration of the marriage, the current financial conditions of each party and Mr. Davis’s post-marital promotion; 2) the lower court erred in awarding reimbursement because Ms. Gravois failed to raise the reimbursement issue in her petition and subsequent pleadings; 3) the lower court erred in awarding reimbursement because Ms. Gravois failed to prove her reimbursement claim; and 4) the lower court erred in awarding Ms. Gravois’s reimbursement claim retroactive to Mr. Davis’s retirement in 1987. Under Louisiana procedural law, a claim for reimbursement is limited to ten years, so Mr. Davis’s exception of prescription should be granted.

In his first assignment of error, Mr. Davis contends that while the trial court was correct in determining that Michigan substantive law applied in this case, it | ¡¡failed to properly apply that law to the facts of the case. According to Michigan law, when dealing with the division of a marital estate including a pension, no one valuation method is required; rather, the trial court, when valuing a pension is obligated to reach a fair and equitable division of the property in light of all the circumstances. Heike v. Heike, 198 Mich.App. 289, 497 N.W.2d 220 (1993). The court may consider several factors, including: the duration of the marriage, the parties’ contributions to the marital estate, the parties’ stations in life and earning abilities, fault or past conduct, and other equitable circumstances which may exist. Vance v. Vance, 159 Mich.App. 381, 406 N.W.2d 497 (1987); Pelton v. Pelton, 167 Mich.App. 22, 421 N.W.2d 560 (1988). Overall, under Michigan law, the courts have vast discretion in the division of property in a divorce action. Gibbons v. Gibbons, 105 Mich.App. 400, 306 N.W.2d 528 (1981); Kurz v. Kurz, 178 Mich.App. 284, 443 N.W.2d 782 (1989).

The only asset in the marital estate between Mr. Davis and Ms. Gravois was Mr. Davis’s military pension. The trial court found that the most equitable and reasonable distribution of this asset would be to award Ms. Gravois one-half of that portion of the pension that Mr. Davis earned during their marriage. There is no indication in the trial court’s reasons for judgment that it specifically relied on certain factors more than others in reaching its judgment. The trial court attempted to reach a fair and equitable division of the property in light of all the circumstances. Based on the vast discretion afforded to the trial court under Michigan law, the trial court in no way abused its discretion in the division of this |fiasset. Accordingly, we find no merit in the appellant’s argument regarding this issue.

In his second assignment of error, Mr. Davis contends that the trial court erred in awarding reimbursement of sums already disbursed because Ms. Gravois failed to raise the reimbursement issue in her petition and subsequent pleadings. In her sworn descriptive list attached to her supplemental petition for judicial partition of community property, the only asset listed by Ms. Gravois is the “military retirement for Michael Roger Davis” with the notation “Value unknown.” The listing of this asset makes no distinction between past payments and future payments but refers to the retirement in- globo. As such, Ms. Gravois asserted her claim to any and all interests she might have in Mr. Davis’s pension. Accordingly, the appellant’s second assignment of error is without merit.

In his third assignment of error, Mr. Davis contends that the trial court erred in awarding reimbursement because Ms. Gravois failed to prove her reimbursement claim. This assignment of error is also without merit. Ms. Gravois proved that she was married to Mr. Davis from 1967 until 1981. She also proved that Mr. Davis served in the military from 1961 until 1987. She further proved that Mr. Davis retired from the military in 1987 and has been receiving a pension since that time. This is proof enough for her claim of entitlement to reimbursement.

In his fourth assignment of error, Mr. Davis claims that the trial court erred in awarding Ms. Gravois’s reimbursement claim retroactive to 1987 because under Louisiana procedural law, a claim for reimbursement is limited to ten years and |7Ms. Gravois’s claim for reimbursement of sums older than ten years have prescribed. Prescriptive statutes, including those governing interruption and suspension of prescription, are procedural, rather than substantive, in nature. Dozier v. Ingram Barge Co., 96-1370 (La.App. 4 Cir. 1/28/98), 706 So.2d 1064. Therefore, Louisiana law applies as to this issue. Under Louisiana law, the right of reimbursement is a personal action claim of one spouse against the other subject to a liber-ative prescription of ten years. See LeBlanc v. LeBlanc, 2005-0212 (La.App. 3 Cir. 11/2/05), 915 So.2d 966, 970-971. See also La. C.C. art. 3499.

In the instant case, Mr. Davis began receiving payments from his military pension in 1987. Ms. Gravois, however, did not seek a portion of the pension until October 3, 2011, when she filed her supplemental petition for judicial partition of community property. Payments made to Mr. Davis before that date had already been disbursed and would be subject to a personal action for reimbursement between the parties. Therefore, any claim for reimbursement of funds Mr. Davis received more than ten years before October 3, 2011 have prescribed. Accordingly, Mr. Davis’s peremptory exception of prescription is maintained.

CONCLUSION

For the above and foregoing reasons, we affirm the judgment of the trial court but amend it to reflect that any claims Ms. Gravois has for reimbursement against Mr. Davis for military pension payments made to him before October 3, 2001 have prescribed. As such, Mr. Davis’s peremptory exception of prescription |sis maintained. Further, we remand this matter to the trial court to determine the amount of reimbursement due to Ms. Gravois in accordance with this opinion.

AFFIRMED AS AMENDED, EXCEPTION OF PRESCRIPTION MAINTAINED AND REMANDED

      . The calculation used by the trial court in reaching this award is quite similar to the one formulated in Sims v. Sims, 358 So.2d 919 (La.1978).

      . The general rule is that substantive rights are governed by the lex loci or the place where the action arose, while the procedural rights are governed by the lex fori or the place of the forum. See Matney v. Blue Ribbon, Inc., 12 So.2d 249 (La.App. 1 Cir.1942); Patterson v. Patterson, 436 So.2d 603, (La.App. 4 Cir.1983).


author: ROSEMARY LEDET, Judge. LANDRIEU, J.

text:
    Alfreda Melerine PIZANI, et al. v. ST. BERNARD PARISH, et al.
    No. 2012-C-1084.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 26, 2013.

      William M. McGoey, Chalmette, LA, for Defendants/St. Bernard Parish Government, et al.
    Thomas P. Anzelmo, Sr. Eugene T. Rhee, Lou Anne M. Gwartney, Hillard F. Kelly, III, McCraine Sistrucnk Anzelmo, Hardy McDaniel & Welch, LLC, Metairie, LA, for Defendants/Lake Borgne Basin Levee District.
    Robert T. Talley, Office of General Counsel, Baton Rouge, LA, for Plaintiffs/Alfreda Melerine Pizani, et al.
    (Court composed of Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

11 This is a commandeering case arising out of Hurricane Katrina. On July 10, 2007, Alfreda Melerine Pizani and Avis Melerine Juan (the “Plaintiffs”), commenced this suit against St. Bernard Parish (“St. Bernard”) and the Lake Borgne Basin Levee District (“LBBLD”) seeking just compensation under the Louisiana Constitution. Plaintiffs alleged that St. Bernard and LBBLD commandeered their property, removing 97,931 cubic yards of soil between October 24, 2005 and July 13, 2006, without their permission.

The underlying factual basis of Plaintiffs’ claim is set forth in detail in Pizani v. St. Bernard Parish, 2013 WL 1403817 (E.D.La.4/5/13), as follows:

The basis for this suit is the alleged damage to private properties caused by the actions of local and federal government entities while making emergency repairs to a levee damaged by Hurricane Katrina. Plaintiffs assert that this alleged damage occurred as a result of the commandeering of their property by defendants St. Bernard and LBBD.
On September 1, 2005, in response to Hurricane Katrina, St. Bernard Parish issued an Executive Order concerning emergency powers under the Louisiana Homeland Security and Emergency ^Assistance and Disaster Act, La.Rev.Stat. 29:271. Pursuant to these powers, St. Bernard signed an Order “Commandeering Property and Granting Irrevocable Right of Entry for Borrow, Access, and Construction (Repair and Rehabilitation) of the Lake Pontchartrain Louisiana and Vicinity Hurricane Protection Levee, St. Bernard Parish (“Commandeering Order”). This order allowed the use of certain private property to obtain borrow materials, gain access, and construct (repair and rehabilitate) the levee. The private property subject to the Commandeering Order lies within and is a part of the properties belonging to the plaintiffs. The Commandeering Order also granted an “irrevocable right of entry to these lands to the [LBBLD] for its use in obtaining borrow, access and construction of said levee repairs and rehabilitation. On September 30, 2005, LBBLD issued an “Authorization for Entry for Borrow, Access and Construction (Repair and Rehabilitation),” stating that it had acquired real property interests in the plaintiffs’ properties pursuant to the Commandeering Order and authorizing “the Department of the Army, its agents, employees, and contractors to enter upon these lands to obtain borrow, access, and construct ... said levee as set forth in the plans and specifications ... ”. On October 2, 2005, St. Bernard and the LBBLD entered into a “Cooperation Agreement” with the United States of America, represented by the U.S. Army Corps of Engineers (“USACE”). On October 17, 2005, these parties entered into an “Amended Cooperation Agreement.” Both of these agreements designate St. Bernard and LBBLD as “Public Sponsors” obligated to provide USACE “right of entry to all lands, easements, and rights-of-way, including suitable borrow and dredged or evacuated material disposal areas” as may be determined necessary by USACE. Olivier, The initial Cooperation Agreement stated that the Public Sponsors (St. Bernard and LBBD) would contribute “toward the construction of the Rehabilitation Effort in an amount equal to 0.0% of Rehabilitation Effort costs.” The Amended Cooperation Agreement provided that USACE would indemnify and pay just compensation to the owners of a compensable interest in the commandeered property.

Id. (citations to the record and to Olivier Plantation, LLC v. St. Bernard Parish, 744 F.Supp.2d 575 (E.D.La.2010), omitted).

LBBLD answered Plaintiffs’ petition. It also filed a motion for leave to file an amended answer and a third party demand against the United States Army Corps of Engineers (“USACE”). At the August 15, 2008 hearing on LBBLD’s motion, Plaintiffs moved to dismiss LBBLD with prejudice, reserving their rights Ragainst St. Bernard. On August 21, 2008, the trial court dismissed LBBLD with prejudice.

On October 31, 2008, St. Bernard filed a motion for leave to file an amended answer and a third party demand against LBBLD and USACE. In its third party demand, St. Bernard averred that “LBBLD was an original defendant in this matter but was dismissed by the Plaintiffs with no advance knowledge by St. Bernard Parish.” It further averred that LBBLD and USACE, as third party defendants, owed contribution to St. Bernard, as a third party plaintiff, for “any and all sums that Plaintiffs may be awarded in this action.” The basis averred for the contribution claim against LBBLD was that it “agreed to compensate property owners [Plaintiffs] for any actual damage as a result of this hurricane protection excavation work, pursuant to a Right of Entry document.” Both LBBLD and Plaintiffs opposed St. Bernard’s motion. Although St. Bernard’s motion for leave was filed in October 2008, it was not ruled upon until several years later.

On June 19, 2012, the trial court granted St. Bernard’s motion. Seeking review of that ruling, LBBLD filed a writ application with this court. Finding the trial court did not err in granting St. Bernard’s motion, this court denied LBBLD’s writ. Pizani v. St. Bernard Parish, 12-1084 (La.App. 4 Cir. 9/24/12) (unpub.). LBBLD then filed a writ application with the Louisiana Supreme Court. While LBBLD’s writ was pending before the Supreme Court, St. Bernard served USACE with the third party demand. In response, USACE removed the case to federal district court. On April 5, 2013, the federal district court dismissed St. Bernard’s third party demand against USACE as premature and remanded the remainder of the case to state court. Pizani v. St. Bernard Parish, 2013 WL 1403317 (E.D.La.2013).

On May 24, 2013, the Louisiana Supreme Court granted LBBLD’s writ application and remanded to this court “for briefing, argument and opinion.” Pizani v. St. Bernard Parish, 12-2208 (La.5/24/13) (unpub.). On remand, this court entertained oral and written argument from LBBLD, St. Bernard, and Plaintiffs. For the reasons that follow, this court finds the trial court did not abuse its discretion in granting St. Bernard’s motion for leave to add LBBLD as a third party defendant. Accordingly, LBBLD’s writ is granted, but its request for relief is denied.

DISCUSSION

The governing rules regulating the filing of a third party demand include La. C.C.P. articles 1033 and 1111. Article 1111 provides that a “defendant in a principal action by petition may bring in any person, including a codefendant, who is his war-rantor, or who is or may be liable to him for all or part of the principal demand.” La. C.C.P. art. 1111. Article 1033 provides that:

| sAn incidental demand may be filed without leave of court at any time up to and including the time the answer to the principal demand is filed.
An incidental demand may be filed thereafter, with leave of court, if it will not retard the progress of the principal action, or if permitted by Articles 1066 or 1092.

La. C.C.P. art. 1033.

Given that St. Bernard filed its third party demand over a year after this suit was commenced, St. Bernard was required to obtain leave of court to file its third party demand, which the trial court granted. “A trial court has broad discretion in deciding whether or not to allow an incidental demand to be filed after the answer to the principal demand has been filed.” Marshall v. Air Liquide-Big Three, Inc., 11-1239, p. 3 (La.App. 4 Cir. 4/11/12), 89 So.3d 427, 429 (citing Blalock v. Lord, 05-0939 (La.App. 3 Cir. 2/1/06), 927 So.2d 1142); see also Volume Shoe Corp. v. Armato, 341 So.2d 611 (La.App. 2d Cir.1977) (stating that a trial court has broad discretion in deciding whether to allow an intervention after the answer to the principal demand has been filed). The issue presented is thus whether the trial court abused its broad discretion in granting St. Bernard’s motion for leave to file a third party claim.

LBBLD contends that the trial court erred in granting St. Bernard’s motion for the following three reasons: (i) under Louisiana’s comparative fault law, there is no solidarity in non-intentional tort cases and thus no right of contribution against a released joint tortfeasor, see La. C.C. art. 2324(B); (ii) even assuming a ^solidary obligation exists, the dismissal of a defendant with prejudice eliminates any right to contribution against that defendant, see La. C.C. art. 1805 and comment (c) to that article; and (iii) a claim for contractual indemnification is premature when asserted before a judgment has been entered against the third party plaintiff.

St. Bernard counters that a trial court has broad discretion to grant leave to file a third party demand and that, under the circumstances of the instant case, the trial court did not abuse its discretion in granting its motion. St. Bernard further counters that LBBLD’s reliance on negligence cases is misplaced for two reasons. First, LBBLD and St. Bernard are alleged to have participated in intentional conduct— intentionally commandeering Plaintiffs’ property — and thus are solidarily liable. See La. C.C. art. 2324(A). Second, St. Bernard has alleged a contractual claim against LBBLD. According to St. Bernard, both LBBLD and USACE are contractually obligated to indemnify Plaintiffs. St. Bernard contends that it is a third party beneficiary of those contracts. See La. C.C. arts. 1978 to 1982. St. Bernard further contends that Plaintiffs’ dismissal with prejudice of |7their claims against LBBLD cannot preclude St. Bernard’s contractual indemnity claim against LBBLD. St. Bernard still further contends that its contractual indemnity claim against LBBLD is not premature.

LBBLD’s argument can be divided into two parts: St. Bernard’s third party demand for tort contribution and its third party demand for contractual indemnity. For purposes of discussion, we divide our analysis into those two parts.

Tort Contribution Claim

LBBLD contends that St. Bernard may only be liable for its own degree of fault and that it has no right of tort contribution against LBBLD. In support, LBBLD quotes the following statement from Dumas v. State ex rel. Dep’t of Culture, Recreation & Tourism, 02-0563, p. 14 (La.10/15/02), 828 So.2d 530, 538: “the right of contribution among solidary tort-feasors ... disappeared [with the adoption of La. C.C. art. 2324(B)] since it is no longer necessary in light of the abolishment of solidarity.” Id. LBBLD further contends that to the extent the obligation St. Bernard alleges is solidary, LBBLD’s dismissal with prejudice by Plaintiffs eliminated any right to contribution. See La. C.C. art. 1805, cmt. (c). As a result, LBBLD maintains that it is no longer Plaintiffs’ obligor and that no other party can stand in Plaintiffs’ shoes or have a cause of action against LBBLD based on the allegations of Plaintiffs’ petition.

LBBLD further maintains that after a co-defendant’s dismissal with prejudice, a remaining defendant’s remedy is limited to an empty-chair defense — “[a] trial tactic in a multiparty case whereby one defendant attempts to put all the fault on a defendant who ... settled before trial or on a person who was [not] ... |snamed as a party.” Bryan A. Garner, Black’s Law Dictionary, 567 (8th ed.2004). In support of this contention, LBBLD cites Harvey v. Travelers Ins. Co., 163 So.2d 915, 921-22 (La.App. 3 Cir.1964), which held that “where the claimant in a tort action settles with and releases one of two joint tort-feasors, reserving all of his rights against the other, the remaining tort-feasor is thereby deprived of his right to enforce contribution against the one who has been released.” See also Wall v. American Employers Ins. Co., 386 So.2d 79, 85 (La.1980). LBBLD still further maintains that a remaining defendant has no right to bring a third party demand for tort contribution against a previous co-defendant who has been dismissed with prejudice. LBBLD cites DiBenedetto v. Noble Drilling Co., 09-0073, 09-464, 09-1025 (La.App. 4 Cir. 10/21/09), 23 So.3d 400, as illustrative.

In DiBenedetto, supra, the plaintiff-tort victim dismissed two of the named defendants with prejudice. A remaining defendant filed a third party demand against the two dismissed defendants, which the plaintiff opposed, At the plaintiffs request, the trial court issued an order prohibiting the remaining defendant from filing a third party demand against the dismissed defendants. On appeal, the remaining defendant contended that pursuant to La. C.C.P. art. 1033 it had the “unfettered right” to file a third party demand against the dismissed defendants. Rejecting that contention, this court held that “Article 1033 addresses the issue of when leave of court is required to file an incidental demand, but the article does not authorize the filing of a third party demand against a previously dismissed defendant.” DiBenedetto, 09-0073 at p. 4, 23 So.3d at 404.

| aBased on the jurisprudence, we conclude that Article 1033 is a procedural rule that confers no substantive right on a defendant to join a previously dismissed defendant. We further conclude that to the extent LBBLD’s indemnity claim is based on negligence, it is precluded. We still further conclude that the Plaintiffs’ dismissal of their claims against LBBLD does not preclude St. Bernard from pursuing its alleged contractual claim for indemnity against LBBLD. See Perkins v. Scaffolding Rental and Erection Service, Inc., 568 So.2d 549, 552 (La.1990) (noting that under La. C.C.P. art. 1673, a plaintiff is not precluded from filing a suit against a previously dismissed party on a different cause of action); Reggio v. E.T.I., 07-1433, p. 11 (La.12/12/08), 15 So.3d 951, 958 (noting “[t]he action for indemnity is a separate substantive cause of action, independent of the underlying tort”).

Contractual Indemnity Claim

LBBLD contends that St. Bernard’s contractual indemnity claim is premature because no judgment has been entered against St. Bernard in this case. LBBLD’s prematurity argument is not without jurisprudential support. In Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, 51, the Louisiana Supreme Court found that: “[a]n in-demnitor is not liable under an indemnity agreement until the indemnitee ‘actually makes payment or sustains loss.’ ” Id. Nonetheless, as Justice Weimer aptly noted in his concurrence in Reggio, supra, “there is a distinction between the right to ‘claim’ indemnity and the right to ‘collect’ indemnity.” Reggio, 07-1433 at p. 13, 15 So.3d at 960 (Weimer, J., concurring).

This case squarely presents the unresolved issue raised by Justice Victory in his concurrence in Moreno v. Entergy Corp., 10-2268, p. 5 (La.2/18/11), 64 So.3d 761, 765-66; namely: “whether a third party indemnity claim is premature when the defendant [third party plaintiff] has not yet been cast in judgment.” Id. Expressing his position that such a claim is not premature, Justice Victory reasoned as follows:

The court of appeal found that such a claim is premature. However, a clear reading of La. C.C.P. arts. 1111-1116 demands that the third party demand is not premature. For example, La. C.C.P. art. 1111 states that a “defendant in a principal action by petition may bring in any person, including a codefen-dant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.” La. C.C.P. arts. 1112 and 1116 provides the same right to defendants in reconvention and third party defendants. Most significantly, La. C.C.P. art. 1113 provides harsh consequences for a defendant who fails to bring in such a third party defendant:
A defendant who does not bring in as a third party defendant a person who is liable to him for all or part of the principal demand does not on that account lose his right or cause of action against such person, unless the latter proves that he had means of defeating the action which were not used, because the defendant either failed to bring him in as a third party defendant, or neglected to appraise him that the suit had been brought. Similarly, La. C.C.P. art. 1091 allows
“a third party having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties ...” An important reason for allowing a third party claim for indemnity to be filed before the defendant is cast in judgment is because if the third party is not permitted to participate in the trial on the principal demand, it may be forced to indemnify the main defendant for a large judgment it could have otherwise averted.

Moreno, 10-2268 at p. 5 (La.2/18/11), 64 So.3d at 765-66 (Victory, J., concurring).

Justice Victory’s position that a third party indemnity claim is not premature is consistent with the legislative history and purpose of La. C.C.P. art 1111. Summarizing the legislative history and purpose of Article 1111, a commentator states:

| ^Louisiana adopted the procedural mechanism of the third-party action in 1954, with the adoption of the Third-Party Practice Act, formerly La.Rev. Stat. Ann. §§ 13:3381 et seq., the forerunner of La.Code Civ. Proc. Ann. arts. 1111 to 1116. See Automotive Finance Co. v. Daigle, 80 So.2d 579 (La.Ct.App. 1st Cir.1955) [ (citing Jeub v. B/G Foods, Inc., 2 F.R.D. 238 (D.Minn.1942)) ].
Third-party practice was adopted in Louisiana with these purposes in mind: to avoid multiple lawsuits; to facilitate and expedite the trial of litigation; and, wherever possible, consistent with orderly procedure and due regard for the rights of all litigants, to dispose of all phases of an action in a single proceeding. Breaux v. Texas & P. Ry. Co., 147 So.2d 693 (La.Ct.App. 1st Cir.1962). A third party demand is a device principally used for making claims of contribution or indemnity in the event the defendant loses on the principal demand; Union Service & Maintenance Co., Inc. v. Powell, 393 So.2d 94 (La.1980).

Hon. Max Tobias, Jr., John M. Landis, & Gerald E. Meunier, LA. PRAC. CIV. PRETRIAL § 10:69 (2012-13 ed.); see also Burns v. McDermott, Inc., 95-0195 (La.App. 1 Cir. 11/9/95), 665 So.2d 76, 78-79 (noting that under La. C.C.P. art. 1111 “[t]he contingent nature of some third party demands is specifically recognized and authorized.”).

As indicated, Article 1111 tracks the language of Federal Rule 14 verbatim. Summarizing the jurisprudence construing the applicability of Federal Rule 14 to third party indemnity claims, a noted commentator states:

Rule 14 allows defendant to implead one “who ... may be liable” to the third-party plaintiff for all or part of the plaintiffs claim against it. The words “may be liable” mean that defendant is permitted to join someone against whom a cause of action has not yet accrued, provided that the claim is contingent upon the success of plaintiffs action and will accrue when defendant’s liability is determined in the main action or plaintiffs claim is satisfied. In this context, resort to impleader has the effect of accelerating the determination of the third-party defendant’s liability.
The contingent claim normally stems from the third-party plaintiffs right of indemnity, subrogation, contribution, or warranty. It should be remembered, however, that there must be a substantive right to relief that will accrue to the third-party plaintiff under the | ^applicable law. When there is no possibility of a right coming into existence, impleader is improper.

6 Wright & Miller, FED. PRAC. & PROC. CIV. § 1451 (3d ed.)(“Wright & Miller”).

The application'of this feature of Rule 14 is illustrated by Jeub v. B/G Foods, Inc., 2 F.R.D. 238 (D.Minn.1942). Wright & Miller, supra. In Jeub, the plaintiffs sued B/G Foods, Inc. (“B/G”) seeking to recover for injuries they allegedly sustained as a result of eating contaminated ham at one of its restaurants. B/G responded by filing a third party demand against its supplier, Swift and Company (“Swift”), alleging that it purchased the contaminated ham from Swift and asserting contribution and indemnity claims. Opposing the third-party demand, Swift contended that it was premature. Swift argued that under the applicable state law (Minnesota law) no claim could be asserted until B/G had satisfied the plaintiffs’ claims. Rejecting this argument, the federal court reasoned:

The invoking of the third-party procedural practice must not do violence to the substantive rights of the parties. However, an acceleration or expedition of the presentation of such rights does not conflict with any Minnesota law. Rule 14 of the Federal Rules of Civil Procedure permits the impleader of a party “who is or may be liable.” The fact that an independent action for money recovery could not be brought at this time does not militate against B/G Foods’ right to invoke a procedure which will determine rights of the parties concurrently with that of the basic proceeding, and if and when any loss has been sustained as to which Swift and Company is liable over, the laws of this state in regard thereto may be made effective.

Jeub, 2 F.R.D. at 240.

Continuing, the federal court in Jeub, supra, explained the judicial economy of allowing B/G Foods’ third party demand for indemnity as follows:

The apparent purpose of Rule 14 is to provide suitable machinery whereby the rights of all parties may be determined in one proceeding. Manifestly, if Swift and Company is liable over to B/G Foods, Inc., for any or all damages sustained by reason of the tortious |isact alleged, no cogent reason is suggested why the original defendant should not avail itself of this rule. Otherwise, B/G Foods, Inc., would be required to await the outcome of the present suit, and then if plaintiffs recover, to institute an independent action for contribution or indemnity. The rule under consideration was promulgated to avoid this very circuity of proceeding.

Jeub, 2 F.R.D. at 241. Allowing a third party demand in this context promotes judicial economy by avoiding a “circuity of proceeding,” i.e., a multiplicity of suits. For these reasons, we find Justice Victory’s position that a third party indemnity claim is not premature persuasive.

CONCLUSION

Based On the above analysis, we find the trial court did not abuse its broad discretion in granting St. Bernard’s motion for leave to file a third party demand against LBBLD. Given the length of time this action has been pending (since July 2007), it would be judicially inefficient to require St. Bernard to bring a separate suit following a final judgment in this case to assert its indemnity claim against LBBLD. For these reasons, LBBLD’s writ is granted, but its request for relief is denied.

WRIT GRANTED; RELIEF DENIED.

LANDRIEU, J., concurs with reasons.

LANDRIEU, J.

concurs with reasons.

The clear language of La. C.C.P. art. 1111 allows a defendant to bring in to the lawsuit any person who may be liable to him for all or part of the principal demand. La. C.C.P. art. 1033 permits the trial court, in the exercise of its broad discretion, to allow the filing of a third party demand at any time if it will not retard the progress of the principal action. The allowing of the third party demand does not address itself to exceptions that may be filed by the third party defendant once in the suit.

On this basis, I respectfully concur in the result reached by the majority.

      . Under the Louisiana Constitution, property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation to the owner. La. Const. art. I, § 4.

      . As the federal district court in Pizani v. St. Bernard Parish, 2013 WL 1403317 (E.D.La.2013), noted, the factual background and procedural postures in this case are nearly identical to Olivier Plantation, LLC v. St. Bernard Palish, 744 F.Supp.2d [575 (E.D.La.2010)]."

      . LBBLD, on the other hand, maintains that it served all parties — including St. Bernard— with a copy of the proposed written judgment before it was signed and that there were no objections.

      . Although St. Bernard labels its third party demand as a contribution claim against LBBLD and USACE, its claim also includes a demand for contractual indemnity. Explaining the difference between these concepts, a commentator notes:
      The tortfeasor who pays tort damages may shift all or part of his burden to a third person, through the concepts of indemnity or contribution. Indemnity, which shifts all the burden to the third person, may arise out of contract or may be imposed by operation of tort law. Contribution, which in Louisiana is a form of subrogation, permits one who has paid more than his share of a solidary (joint and several) tort obligation to recoup from the other obligors their share of what he has paid.
      Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW, § 12-8 (1996).

      . On July 6, 2012, the trial court granted LBBLD’s request for a stay pending this court’s action on its writ.

      . Plaintiffs also filed a writ application seeking review of the trial court’s decision insofar as it allowed the third party demand against not only LBBLD, but also USACE. This court denied Plaintiffs’ writ. Pizani v. St. Bernard Parish, 12-1057 (La.App. 4 Cir. 7/17/12) (un-pub.). Plaintiffs then took a writ to the Louisiana Supreme Court. Plaintiffs, however, dismissed their writ following the federal district court’s ruling in Pizani v. St. Bernard Parish, 2013 WL 1403317 (E.D.La.2013), dismissing St. Bernard's third party demand against USACE as premature. The instant writ pertains solely to St. Bernard's third party demand against LBBLD.

      . La. C.C. art. 2324(B) provides:
      If liability is not solidary pursuant to Paragraph A, then liability for damages caused by two or more persons shall be a joint and divisible obligation. A joint tort-feasor shall not be liable for more than his degree of fault and shall not be solidarity liable with any other person for damages attributable to the fault of such other person, including the person suffering injury, death, or loss, regardless of such other person’s insolvency, ability to pay, degree of fault, immunity by statute or otherwise, including but not limited to immunity as provided in R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

      . La. C.C. art. 1805 provides:
      A party sued on an obligation that would be solidary if it exists may seek to enforce contribution against any solidary co-obligor by making him a third party defendant according to the rules of procedure, whether or not that third party has been initially sued, and whether the party seeking to enforce contribution admits or denies liability on the obligation alleged by plaintiff.
      La. C.C. art. 1805. Comment (c) to Article 1805 provides that "[a]n obligor who has been released by his obligee is no longer an obligor and therefore cannot be made a third party.”

        .See Constans v. Choctaw Transport, Inc., 97-0863, p. 6 (La.App. 4 Cir. 12/23/97), 712 So.2d 885, 890; Thomas v. W & W Clarklift, Inc., 375 So.2d 375, 378 (La.1979); Suire v. Lafayette City-Parish Consolidated Government, 04-1459, 04-1460, 04-1466 (La.4/12/05), 907 So.2d 37, 51.

      . La. C.C. art. 2324(A) provides: "[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person, for the damage caused by such act.”

      . At oral argument before this court, the issue was raised whether St. Bernard’s contractual indemnity claim based on its third party beneficiary status — -its stipulation pour autrui claim — was properly before us. We find it unnecessary to reach that issue. Nor do we find it necessary to reach the issue of whether St. Bernard has a valid contractual indemnity claim. For purposes of deciding the procedural issue presented we assume that St. Bernard has alleged an indemnity claim that can be classified as sounding in contract.

      . In DiBenedetto, the plaintiff opposed the motion for leave to amend on the basis that joining the dismissed defendants — two South African companies — would result in the case being removed to federal court. Although the same arguably was true in this case regarding the joinder of USACE, this writ pertains only to LBBLD.

      . We note that St. Bernard's claim for indemnity against USACE must be separately pursued in the federal court of claims following a final state court judgment in this case. Pizani v. St. Bernard Parish, 2013 WL 1403317 (E.D.La.2013).


author: PAINTER, Judge.

text:
    STATE of Louisiana v. Keren MEJIA.
    No. 13-440.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Chad Ikerd, Office of the District Defender, Lafayette, LA, for Defendant-Appellant Keren Mejia.
    J.N. Prather, Jr., Assistant District Attorney, Michael Harson, District Attorney, Fifteenth Judicial District Court, District Attorney’s Office, Lafayette, LA, for the State of Louisiana.
    Court composed of JIMMIE C. PETERS, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

In State v. Sarrabea, 13-1271 (La.10/15/13), 126 So.3d 453, 2013 WL 5788888, the Louisiana Supreme Court has upheld our decision in the same case (12—1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428), finding that La.R.S. 14:100.13 is unconstitutional. Accordingly, we vacate the conviction of Defendant, Keren Mejia.

FACTS AND PROCEDURAL HISTORY

On November 22, 2011, Defendant operated a vehicle without documentation of her lawful presence in the United States. She was charged with operating a motor vehicle as an alien student and/or a nonresident alien without documentation demonstrating that she was lawfully present in the United States, a violation of La.R.S. 14:100.13. Defendant was arrested on November 22, 2012, but the bill of information was not filed until December 19, 2012, after she filed a petition for writ of habeas corpus. She filed a motion to quash, arguing that the statute was not a valid exercise of police powers and was preempted by federal legislation. The State, represented by the Louisiana Attorney General’s Office, opposed the motion.

At a hearing, the trial court first denied Defendant’s petition for writ of habeas corpus. The trial court then indicated that it would “rule the same way” as it had in previous cases addressing this issue and denied the motion to quash. Defendant then entered a no contest plea pursuant to State v. Crosby, 338 So.2d 584 (La.1976), reserving her right to appeal the denial of the motion to quash. She was sentenced to serve twenty days in' the parish jail, with credit for time served, to run concurrently with any other sentence she might be serving. She now appeals the denial of the motion to quash.

|,DISCUSSION

Defendant argues that the trial court erred in denying her motion to quash and in finding that La.R.S. 14:100.13 is a proper exercise of state police powers. She further contends that the trial court erred in holding that the statute is not preempted by federal law.

Louisiana Revised Statutes 14:100.13(A) provides:

No alien student or nonresident alien shall operate a motor vehicle in the state without documentation demonstrating that the person is lawfully present in the United States.

The penalty for a violation is a fine of up to one thousand dollars and/or imprisonment for up to one year, with or without hard labor, making the offense a felony. La. R.S. 14:100.13(0; La.R.S. 14:2(A)(4).

In Sarrabea, the Louisiana Supreme Court found that La.R.S. 14:100.13 “operates in the field of alien registration and is, therefore, preempted by federal law under the Supremacy Clause of the U.S. Constitution.” Id. at 126 So.3d 453, 455. This follows the United States Supreme Court’s ruling in Arizona v. United States, — U.S.-, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012), where the United States Supreme Court noted that federal law requires aliens to carry proof of registration and concluded that “the Federal Government has occupied the field of alien registration.” Id. at 2502. Field preemption forecloses any state regulation, even when it parallels federal standards, so that “even complementary state regulation is impermissible.” Id. The United States Supreme Court further noted that “[e]ven if a State may make a violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law.” Id.

Both the Arizona statute and the Louisiana statute forbid the willful failure to carry documentation demonstrating a lawful presence in the United States and provide a penalty in excess of the penalty provided by federal law. This | .^inconsistency “creates a conflict with the plan Congress put in place ... underscoring] the reason for field preemption.” Id. at 2503.

In State v. Sarrabea, 12-1013 (La.App. 3 Cir. 5/1/13), — So.3d -, 2013 WL 1810228, writ granted, 13-1271 (La.6/26/13), 118 So.3d 428, the defendant was convicted under La.R.S. 14:100.13 and sentenced to three months in the parish jail. On appeal, he argued that the statute was unconstitutional, violated the Equal Protection clause, and was overly broad and vague. This court agreed, holding that Arizona is controlling jurisprudence, and stated, “To put it plain and simple, La.R.S. 14:100.13 is preempted by federal law; and the State of Louisiana lacks Constitutional authority to enforce it.” Id. at 17, — So.3d -. The conviction was reversed.

Likewise, this court adopted the Arizona reasoning in State v. Gomez, 12-1357 (La.App. 3 Cir. 5/22/13), 115 So.3d 1200. Finding that Louisiana’s statute is field and conflict preempted, this court held the statute unconstitutional and reversed the conviction. The second circuit reached the same conclusion in State v. Anaya-Espino, 48,025 (La.App. 2 Cir. 5/22/13), 114 So.3d 1248. The first circuit, in State v. Lopez, 12-2043 (La.App. 1 Cir. 3/21/13), 116 So.3d 1, reached the opposite conclusion. However, this split in the circuits has been resolved, and the finding that La.R.S. 14:100.13 is unconstitutional and preempted by federal law has been upheld by the Louisiana Supreme Court in Sarrabea, 126 So.3d 453. Thus, we must follow Sarrabea and reverse Defendant’s conviction on the ground that La.R.S. 14:100.13 is unconstitutional.

ldecree

We reverse the trial court’s ruling denying Defendant’s motion to quash and vacate her conviction.

REVERSED. CONVICTION VACATED.

      . The State has applied for a writ with the Louisiana Supreme Court in Gomez. Writs have also been granted to address this issue in State v. Marquez, 12-1316 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted 13-315 (La.5/3/13), 112 So.3d 851, and State v. Ramirez, 12-1245 (La.App. 3 Cir. 1/7/13) (unpublished writ), writ granted, 13-276 (La.5/3/13), 112 So.3d 851, in which a different panel of this court denied the defendants writ applications and held La.R.S. 14:100.13 constitutional.