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

text:
    STATE of Louisiana v. David R. EPPERLEY.
    No. 2012-KA-1094.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 19, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, Sr., Judge TERRI F. LOVE).
   JAMES F. McKAY, III, Chief Judge.

IvA review of the record reveals a patent error which is fatal to this appeal. While the minute entry for January 27, 2012 states that the trial court imposed a sentence of three years incarceration in the Louisiana Department of Corrections (“D.O.C.”) to run concurrent on each count upon the defendant in this case, the transcripts recorded in this case reveal that the trial court failed to actually impose sentence. The record reflects that the appellant pled guilty in several other cases involving charges of theft and misappropriation; that all pleas were tendered and accepted on November 30, 2011; and that the trial court reset sentencing in all of the cases until after it had conducted the restitution hearing. A status conference was held on December 15, 2011. A restitution hearing was held on January 20, 2012, and a final restitution and sentencing hearing on January 27, 2012. In none of these transcripts is there a record of an actual sentencing in this case. In simultaneously arriving at sentences in all of the cases, the trial court inadvertently failed to impose sentence in the instant matter, although it ordered the sentences in 12other cases to be served either concurrently or consecutively with the sentence in this case.

In the event of a discrepancy between the minutes of a hearing and the transcript, the transcript prevails. See State v. Watson, 2000-1580, p. 3 n. 4 (La.5/14/02), 817 So.2d 81, 83 n. 4; State v. Maten, 2004-1718 (La.App. 1 Cir. 3/24/05), 899 So.2d 711, 725. Therefore, this Court must conclude that although the trial court imposed the amount of restitution that the appellant must pay, it did not actually impose sentence in this case. La. C. Cr. P. art. 912C (1) provides that a defendant may appeal from a “judgment which imposes sentence.” See State v. Baxter, 343 So.2d 733 (La.1977). Thus, the appeal was taken prematurely. As per Baxter, we dismiss this appeal and remand the case for the imposition of sentences.

APPEAL DISMISSED; REMANDED FOR RESENTENCING

      . The trial court failed to impose sentences in CDC Case Nos. 500-897, 501-105 and # 503-758; the applicable companion cases are as follows; Nos. 500-897, 503-758, 508-897, 501-105, 500-898, 505-952, 508-935 and 508-788.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    OPELOUSAS GENERAL HOSPITAL AUTHORITY, et al. v. FAIRPAY SOLUTIONS, INC.
    No. 13-17.
    Court of Appeal of Louisiana, Third Circuit.
    July 3, 2013.

      John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Plaintiffs/Appellees Opelousas General Hospital Authority, a Public Trust, d/b/a Opelousas General Health System and Arklamiss Surgery Center, L.L.C.
    Steven G. Durio, Durio, McGoffin, Stagg & Ackermann, Lafayette, LA, for Defendant/Appellee Fairpay Solutions, Inc.
    Jerald R. Harper, Amber H. Watt, Harper Law Firm, Shreveport, LA, for Defendant/Appellee Fairpay Solutions, Inc.
    Patrick A. Juneau, Jr., Juneau David, APLC, Lafayette, LA, for Plaintiff/Appel-lee Patrick A. Juheau Jr., Special Master.
    John M. Landis, Douglas J. Cochran, Brooke C. Tigchelaar, Abigayle C. Farris, Stone, Pigman, Walther, Wittmann L.L.C., New Orleans, LA, for Intervenor/Appel-lant Qmedtrix Systems, Inc.
    Patrick Craig Morrow, Sr., Morrow, Morrow, Ryan & Bassett, Opelousas, LA, for Plaintiffs/Appellees Opelousas General Hospital Authority, a Public Trust, d/b/a Opelousas General Health System and Arklamiss Surgery Center, L.L.C.
    Stephen B. Murray, Arthur M. Murray, Murray Law Firm, New Orleans, LA, for Plaintiffs/Appellees Opelousas General Hospital Authority, a Public Trust, d/b/a Opelousas General Health System and Arklamiss Surgery Center, L.L.C.
    Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, Lake Charles, LA, for Plaintiffs/Appellees Opelousas General Hospital Authority, a Public Trust, d/b/a Opelousas General Health System and Arklamiss Surgery Center, L.L.C.
    R. Bray Williams, Williams Family Law Firm, L.L.C, Natchitoches, LA, for Plaintiffs/Appellees Opelousas General Hospital Authority, a Public Trust, d/b/a Opelousas General Health System and Arklamiss Surgery Center, L.L.C.
    David Coale, Attorney at Law, Dallas, TX, for Defendant/Appellee Fairpay Solutions, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

h Qmedtrix Systems, Inc. (Qmedtrix), an intervenor, appeals the trial court’s approval of a class action settlement between the defendant-appellee, Fairpay Solutions, Inc. (Fairpay) and the plaintiffs, Opelousas General Hospital Authority, A Public Trust, D/B/A Opelousas General Health System and Arklamiss Surgery Center, L.L.C. For the following reasons, we affirm the trial court’s ruling and, further, grant Fairpay’s motion to place documents under seal.

FACTUAL AND PROCEDURAL BACKGROUND

Qmedtrix and Fairpay provide workers compensation bill reviewing services to employers and their workers’ compensation insurers. Hundreds of Louisiana hospitals and ambulatory surgery centers have Sled class action lawsuits against Fairpay’s clients (and Qmedtrix also) claiming that Fairpay repriced their bills at levels below that required in La.R.S. 23:1020.1. There is pending litigation in both state and federal courts regarding these claims. This class action pertains to Fairpay’s attempts to settle the matter.

In March 2012, Fairpay and the class representatives (represented by plaintiffs) jointly filed a petition seeking certification and approval of a class action settlement agreement. The parties to the settlement further filed a joint motion to place the pricing methodology exhibit referred to in the class action settlement under seal. The district court sealed the documents that disclosed the Fairpay pricing methodology.

In April 2012, the parties to the settlement filed a joint motion for preliminary approval of the thirty-page settlement agreement, which was approved by the trial court. The settlement agreement proposed a payment by Fairpay of $6.9 million to compensate the class members for every alleged underpayment of 12workers’ compensation health care bills from October 21, 2003, through the effective date of the settlement. It further provided an agreement to reprice future workers’ compensation health care bills handled by Fairpay in accordance with the repricing methodology that the settlement agreement states is a trade secret under Louisiana law to be kept confidential and under seal. The settlement agreement states that the repricing methodology resulted in a payment of 72% of all bills processed for payment by Fairpay.

A deadline of June 29, 2012 was provided in order to file written objections to the settlement agreement. On August 2, 2012, Qmedtrix filed a motion for leave to intervene in the case in order to oppose the proposed class action settlement. Qmed-trix argued that the settlement would “adversely affect all competitors in the bill review industry,” and that it had a right to intervene to protect its own economic interests. Qmedtrix complained that the Future Fairpay Pricing Methodology component was a price-fixing agreement that is illegal under state and federal antitrust statutes. The trial court granted Qmed-trix leave of court to file an intervention and scheduled its objection to the settlement agreement for hearing on August 17, 2012, the day of the fairness hearing. On August 16, 2012, Qmedtrix filed a motion to unseal the record.

At the conclusion of the fairness hearing, the plaintiffs filed an Incidental Class Action Demand class against Qmedtrix alleging fraud in connection with its bill review practices. The cross-claim is currently pending.

On August 17, 2012, the trial court entered a final judgment approving the class settlement between approximately 185 ambulatory surgery centers and [sFairpay. The trial court found that any objections to the fairness, reasonableness, and adequacy of the settlement agreement lacked merit. The trial court further found that the settlement agreement was the result of “extensive and intensive arms-length negotiations undertaken in good faith by highly experienced counsel, with full knowledge of the risks inherent in this litigation.”

In September 2012, Qmedtrix filed a notice of removal attempting to remove the matter to federal court. In November 2012, the United States Court of Appeals for the Fifth Circuit (Fifth Circuit) dismissed Qmedtrix’s appeal and remanded the matter to the 27th Judicial District Court.

In November 2012, the plaintiffs filed a motion to certify a class against Qmedtrix. On this same day, Qmedtrix filed a permission to appeal the district court’s remand order with the United States Court of Appeals for the Fifth Circuit. In December 2012, Qmedtrix appealed the trial court’s August 17, 2012 judgment. In March 2013, Fairpay filed a motion to place documents under seal with this court.

ISSUES

Qmedtrix assigns as error:

1. The district court abused its discretion by approving the Settlement Agreement, which is an absolute nullity because it violated Louisiana’s statutory law and public policy.

2. The district court lacked jurisdiction to enter the order and judgment approving the Settlement Agreement.

DISCUSSION

The Settlement Agreement/Intervention

A class action settlement agreement is reviewed pursuant to an abuse of discretion standard. Orrill v. AIG, Inc., 09-0888 (La.App. 4 Cir. 4/21/10), 38 So.3d 457, writs denied, 10-0945, 10-1117 (La.9/17/10), 45 So.3d 1035, 1036. If the trial court did not abuse its discretion in finding that the class action settlement is “fair, reasonable, and adequate for the class,” we will not overturn its findings. La. Code Civ.P. art. 594(B). At the conclusion of the fairness hearing, the trial court denied Qmedtrix’s objection to the proposed settlement and found that “they have no standing in this fairness hearing and filed to intervene after the cutoff period. They’re not members of the class.” The trial court found that the settlement between the class members was fair, reasonable, and adequate for the class. We reviewed the testimony presented at the fairness hearing and find no abuse of the trial court’s discretion in finding that the settlement agreement was fair, reasonable, and adequate for the class. None of the class members contest that finding. Instead, Qmedtrix, who was not a party to the class action settlement contract, attacks its validity.

Qmedtrix does not contest the $6.9 million payment by Fairpay to the plaintiffs; rather, its main opposition to the agreement is the undisclosed pricing methodology agreed to by the class in the settlement agreement which it couches in terms of “price fixing agreements,” “illegal monopolization,” “violation of antitrust laws,” and “against public policy.” We agree with the trial court that Qmedtrix lacked standing to oppose the settlement agreement at the fairness hearing because Qmedtrix was not a party to the class action settlement agreement and it has other remedies available to it under the law that may be properly asserted. Beside the fact that the intervention was untimely, the merits of refusing to allow Qmedtrix to intervene are well supported.

It is well settled by jurisprudence that the requirements for intervention are twofold: the intervenor must have a jus-ticiable interest in, and connexity to, the principal action, and the interest | smuch be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. In re Succession of Walker, 836 So.2d [274] at 277 [(La.App. 5 Cir. 2002) ], (quoting from In re Interdiction of Campbell, 01-863 (La.App. 5 Cir. 1/15/02), 807 So.2d 908, 910, writ denied, 02-0499 (La.2/27/02), 810 So.2d 1148.) A “justiciable interest” is defined as “the right of a party to seek redress or a remedy against either [the] plaintiff or defendant in the original action or both, and where those parties have a real interest in opposing it.” The right, if it exists, must be so related or connected to the facts or object of the principal action that a judgment on the principal action will have a direct impact on the intervenor’s rights. Id.

Mike M. Marcello, Inc. v. Louisiana Gaming Control Bd., 04-488, 04-1224, pp. 4-5 (La.App. 1 Cir. 5/6/05), 903 So.2d 545, 548.

Qmedtrix failed to put on any evidence at the fairness hearing proving that it had a justiciable interest in the settlement. The settlement agreement has no res judicata effect on Qmedtrix’s claims, which can be asserted elsewhere, nor does it interfere with Qmedtrix’s ability to conduct business in the state. A competitor simply does not have the right to intervene in a contract between private companies because the company may gain a competitive advantage through a negotiated contract. This is a fundamental tenet of our free market society. Qmedtrix is free to come up with its own formula for repricing workers’ compensation bills and to negotiate contract terms with its clients. Any claims it has against Fairpay may be raised in a separate action. This assignment of error is without merit.

Jurisdiction

Qmedtrix argues that the Office of Workers Compensation (OWC) has exclusive jurisdiction to determine whether use of the pricing methodology satisfies the requirements of the Louisiana Workers’ Compensation Act (the Act). Fairpay says the claims against it do not arise under the Act, that the OWC could never possess jurisdiction over a class action, and that La.Code Civ.P. art. 5941 (¡requires trial court approval of approve action settlements. We agree with Fairpay. Pursuant to La.R.S. 23:1310.3(F), workers’ compensation judges are vested

with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, group self-insurance indemnity contract disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers or self-insurance group funds for indemnification or contribution, concursus proceedings pursuant to Louisiana Code of Civil Procedure Articles 4651 et seq. concerning entitlement to workers’ compensation benefits, payment for medical treatment, or attorney fees arising out of an injury subject to this Chapter.

The present matter simply does not arise under the Act as the Act does not regulate contracts between bill reviewers and medical care providers. “Mere involvement of workers’ compensation issues is insufficient; such disputes may ‘relate to’ to workers’ compensation matters, but they do not ‘arise out of the Act.” Broussard Physical Therapy v. Family Dollar Stores, Inc., 08-1013, p. 9 (La.12/2/08), 5 So.3d 812, 817. The contract claims resolved in this class action settlement involve a civil dispute between companies that provide bill review services to medical care providers. The district court properly had jurisdiction over this matter. This assignment of error is without merit.

Motion to Seal the Record

Although there is no specific statutory provision allowing a trial court to seal court records, pursuant to its supervisory powers it has discretion in sealing records based on the facts and circumstances of the case. See La.Code Civ.P. art. 191; Copeland v. Copeland, 07-0177 (La.10/16/07), 966 So.2d 1040. It is within the trial court’s purview to decide if information is sensitive such that it should not be disclosed to others. Id. Further, La. R.S. 44:3.2 recognizes the right of a party to |7shield its trade secrets from public view when conducting business with the state. We find no abuse of the trial court’s discretion in sealing Fairpay’s pricing methodology formula.

CONCLUSION

The trial court’s approval of the class action settlement is affirmed. All costs of this appeal are assessed against the inter-venor, Qmedtrix Systems, Inc.

AFFIRMED; MOTION TO SEAL THE RECORD GRANTED.

      . The second component of the agreement is referred to as the "Future Fairpay Pricing Methodology.”


author: BROWN, Chief Judge.

text:
    William Wesley CARNES, Plaintiff-Appellee v. Caleb WILSON, et al., Defendants-Appellants.
    No. 48,127-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 3, 2013.

      Mayer, Smith & Roberts by Kim Purdy-Thomas, Patrick F. Cole, J. Kris Jackson, for Defendant/Appellant, Select Energy Services d/b/a Pen Rob Well Services.
    Alexander S. Lyons, for Plaintiff/Appel-lee, William Carnes.
    Before BROWN, MOORE, and PITMAN, JJ.
   BROWN, Chief Judge.

|, While at work, plaintiff, William Wesley Carnes, was physically beaten by a coworker. Plaintiff filed a petition for damages against the co-worker, Caleb Wilson, and their employer, Select Energy Services, L.L.C., d/b/a Pen Rob Well Services (“Select Energy”). Select Energy filed a motion for summary judgment claiming that workers’ compensation was the exclusive remedy for Carnes’s injuries; Carnes filed a cross-motion for summary judgment on June 25, 2012. The trial court rendered judgment denying Select Energy’s motion for summary judgment and granting Carnes’s cross-motion for summary judgment on the issue of vicarious liability. Select Energy appeals. For the following reasons we affirm.

Law

Motion for Summary Judgment

Appellate courts review summary judgments de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Cote v. City of Shreveport, 46,571 (La.App.2d Cir.09/21/11), 73 So.3d 435. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). The procedure is favored under Louisiana law and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

12Under the current summary judgment standard, if the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. art. 966(C); Berzas v. Oxy USA, Inc., 29,835 (La.App.2d Cir.09/24/97), 699 So.2d 1149.

Tort Immunity

The Louisiana Workers’ Compensation Act provides for the payment of compensation if an employee sustains personal injury as the result of an accident arising out and in the course of employment. La. R.S. 23:1031. Except for intentional acts, the rights and remedies granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation, shall be exclusive. La. R.S. 23:1032. Thus, an employer has tort immunity, except an employee may recover from his employer under general tort law for an intentional act. Benoit v. Capitol Manufacturing Company, 617 So.2d 477 (La.1993).

Vicarious Liability

An employer can be vicariously liable for its own intentional acts and the intentional acts of its employees. Benoit, supra. The employer’s liability, however, extends only to those acts which are within the course and scope of the tortfeasor’s employment, as compared with conduct instituted by purely personal considerations entirely extraneous to the 13employer’s interest. Wearrien v. Viverette, 35,446 (La.App.2d Cir.12/05/01), 803 So.2d 297.

The test for employer liability has been established in LeBrane v. Lewis, 292 So.2d 216 (La.1974). LeBrane held that an employer is responsible for an employee’s intentional tort when the conduct is so closely connected in time, place and causation to the employment duties that it constitutes a risk of harm attributable to the employer’s business. In LeBrane, a supervisor terminated an employee’s job and walked him outside the building where a fight began. The supervisor then knifed the former employee. The fight was found to be “employment-rooted.” Id. at 218. The supervisor’s act was so closely connected to his employment duties that it was a risk of harm attributable to the employer’s business. Thus, the tort was within the scope of the supervisor’s employment, making the employer liable in tort to the discharged employee. LeBrane, 292 So.2d at 219; Benoit, 617 So.2d at 479.

In Benoit, supra at 479, the court observed that “[T]he broom stick battery on Benoit was clearly ‘employment-rooted.’ The issue was temperature in the work place (a dispute over whether the rear door should be opened or closed). While Bennett’s striking Benoit did not benefit the employer, neither did Lewis’ cutting LeBrane.”

Facts and Procedural Background

Both Carnes and Wilson were employees of Select Energy at the time of the altercation. Prior to the fight, the two men had worked on a crew together for approximately one month. Carnes was the welder and Wilson 14was the welder’s helper. During their time working together, Carnes complained about Wilson’s conduct while on the job numerous times to his supervisors. Specifically, Carnes complained of Wilson’s hot-temperedness, repeated failures to show up for work, and his suspected drug use during the work day. All of the complaints related to workplace safety and/or involved acts specifically prohibited by the company’s employee handbook.

Following multiple complaints, Carnes demanded Wilson’s termination or transfer. Rhett Schrode, a supervisor, removed Wilson from Carnes’s crew and restricted Wilson from leaving the work site for lunch. Approximately three weeks later, on July 21, 2010, Wilson was reassigned to work on Carnes’s crew. During the work day, Carnes and Wilson had limited interaction other than “simple work communication.” At 4:45 p.m., as the work crew was finishing up for the day, Carnes was smoking a cigarette when he was blindsided by Wilson. Carnes was knocked to the ground, temporarily lost consciousness, and awoke to find Wilson on top of him hitting him repeatedly. As a result of the unprovoked attack, Carnes suffered a broken jaw and permanent nerve damage to the right side of his face. Both Carnes and Wilson were subsequently terminated by Select Energy due to the company’s anti-fighting policy. As a result of the attack, Carnes received workers’ compensation benefits and Wilson pled guilty to second degree battery.

In his suit, Carnes argued that Wilson was liable for damages and that Select Energy should be held vicariously liable for Wilson’s intentional act. | r,Carnes also argued that Select Energy was negligent in its retention of Wilson. Select Energy answered, denying any fault and/or negligence in bringing about the July 21, 2010, altercation. Select Energy filed a motion for summary judgment and Carnes filed a cross-motion for summary judgment. The trial court denied Select Energy’s motion for summary judgment and granted Carnes’s cross-motion for summary judgment on the issue of vicarious liability.

Analysis

The determination of an employer’s vicarious liability revolves around the particular facts of the case. It is uncontested that the attack occurred on Select Energy’s premises and during work hours; therefore, it must be determined whether the attack was either employment-rooted or reasonably incidental to Wilson’s employment duties.

A review of the record shows that Carnes made numerous complaints to his and Wilson’s supervisors informing them of issues that could compromise the work site safety of Carnes and his crew. In response, Select Energy prohibited Wilson from leaving the work site for lunch and transferred him from Carnes’s crew. Nevertheless, three weeks later they put Wilson back on Carnes’s crew and Wilson attacked Carnes.

The facts in Garcia v. Furnace and Tube Service, Inc., 40,517 (La.App.2d Cir.01/27/06), 921 So.2d 205, are similar to the factual scenario in the present case. In Garcia, the employer contended that the trial court erred in finding that it was vicariously liable for the damages inflicted upon | (¡Garcia by a coworker, Broussard. Both were welders. The employer acknowledged that Broussard committed an intentional tort on Garcia and that the initial verbal argument between the two men stemmed from Broussard’s comments made to the quality control inspector regarding Garcia’s workmanship. The two employees separated after the initial verbal confrontation and Garcia walked to the foreman’s truck. When Broussard went over to the truck, the fight ensued. This court determined that there was no evidence to suggest personal motivation on the part of the tortfeasor and that, in fact, “it could be seen as an issue which would promote the interest of the employer if indeed Garcia’s work was found to be substandard.” Garcia, 921 So.2d at 211.

Select Energy tries to distinguish Garcia from the present situation by arguing that in Garcia, the tortfeasor was the employee who questioned the quality of Garcia’s work, as opposed to the present matter wherein Carnes was the one reporting questionable work behavior. While we note the distinction, we find that it does not alter the underlying cause of the altercation, which is that it was employment-rooted. Carnes testified that he and Wilson did not know each other outside of work and that on the day of the attack he and Wilson talked only about work. The obvious reason for the physical attack on Carnes was that it was in direct response to the complaints Carnes had made regarding Wilson’s job performance and workplace safety. We find it highly improbable that Wilson was unaware of the complaints since he had been prohibited from leaving the work site for lunch and had been transferred from Carnes’s crew.

|7In addition to concluding that the altercation was employment related, we also find that Select Energy might have prevented the attack had it not put Wilson back on Carnes’s crew. Carnes’s supervisors were aware of the issues Carnes had with Wilson, as well as Wilson’s propensity towards violence as Carnes testified that supervisors were aware of a previous shoving altercation initiated by Wilson against another employee. Nonetheless, they assigned Wilson to assist Carnes on the date in question. While, as Select Energy argues, Wilson attacking Carnes does not further its business interests, it is illogical to think that workplace violence ever advances a corporate interest. Apparently, Select Energy’s business interests were advanced on that particular day by having Wilson on Carnes’s work crew. Coupling that with the fact that Wilson had been reported to have a hot temper and substance abuse problems, it was reasonably foreseeable that an attack could occur.

Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed when the masters or employers might have prevented the act which caused the damage, and have not done it. La. C.C. art. 2320. In this case, Select Energy assigned Wilson to Carnes’s crew with full knowledge of the tension between the two employees. Had it not done so, the altercation may have been prevented.

Regardless, based upon our de novo review, we find that the trial court was correct in its determination that the altercation resulted from a dispute over employment-related issues and, further, that no genuine issue |sof material fact exists. Accordingly, the trial court’s granting of plaintiffs partial motion for summary judgment is affirmed.

Conclusion

For the foregoing reasons, the judgment of the trial court denying the motion for summary judgment of defendant, Select Energy Services, L.L.C., d/b/a Pen Rob Well Services, is affirmed. Furthermore, the judgment of the trial court granting the partial motion for summary judgment in favor of plaintiff, William Wesley Carnes, against Select Energy is also affirmed. Costs of this appeal are assessed against Select Energy.

      . We note that Wilson failed to answer the petition and, as such, the trial court deemed plaintiffs motion for summary judgment against him premature.

      . Plaintiff did not address the issue of negligent retention in his brief.


author: AMY, Judge. SAUNDERS, J.,

text:
    Joseph B. FREEMAN, Jr., et al. v. BLOCK “T” OPERATING, LLC, et al.
    No. 13-58.
    Court of Appeal of Louisiana, Third Circuit.
    July 10, 2013.

      Raymond A. Beyt, Aaron D. Beyt, Beyt & Beyt, Lafayette, LA, for Plaintiffs/Ap-pellees, Joseph B. Freeman, Jr., Mabel T. Freeman, John T. Block, Sally G. Block.
    Karen Daniel Ancelet, Onebane Law Firm, APLC, Lafayette, LA, for Defendants/Appellants, Block “T” Operating, LLC, Block “T” Petroleum, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

l,The plaintiffs filed suit, seeking payment of overriding royalty interests they assert were owed on three subject oil wells. The defendants, the well operator and a partial working interest and net revenue interest owner, rejected the plaintiffs’ demand, citing a defense under the public records doctrine. On cross motions for summary judgment, the trial court ruled in favor of the plaintiffs, finding the public records doctrine inapplicable in this case. Instead, it found that the plaintiffs’ overriding royalty interests were created from a retained leasehold interest which was, in fact, commemorated in the public records. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiffs, Joseph B. Freeman, Jr., Mabel T. Freeman, John T. Block, and Sally G. Block, allege that Kurios Oil & Gas, LLC assigned overriding royalty interests in three oil wells to each of them by virtue of December 2008 assignments. The Assignments of Overriding Royalty Interests filed into the record indicate that Kurios Oil & Gas, LLC conveyed each couple “2.500% of 8/8ths” of the overriding royalty interests in two of the wells at issue (hereinafter referred to as the Thibo-deaux No. 1 Well and the Domingue No. 1 Well) situated in Acadia Parish. Kurios additionally assigned each couple “2.456116% of 8/8ths” of the overriding royalty interests in an additional well (hereinafter referred to as the Victory Financial No. 1 Well) situated in Jefferson Davis Parish. While the assignments at issue were executed in December 2008, they were not recorded in the public records of their respective parishes at that time. The record establishes that Kurios began payment of the overriding royalty interests to the plaintiffs.

By a March 1, 2010 Assignment and Bill of Sale, Kurios conveyed to Block “T” Operating, LLC, a 20% working interest and a 14% net revenue interest in the |2Thibodeaux No. 1 Well and a 20% working interest and a 14% net revenue interest in the Domingue No. 1 Well. Additionally, Kurios assigned to Block “T” Operating a 45.9294% working interest and a 31.623975% net revenue interest in the Victory Financial No. 1 Well. The assignments and bills of sale were recorded in their respective parishes on March 3, 2010. Various other parties also received working interests in the subject wells by those assignments.

Beginning in October 2010, Block “T” Operating assumed payment of the plaintiffs’ overriding royalty interests. It distributed those payments until April 2011. In July 2011, the assignments of overriding royalty interests to the plaintiffs (and others) were recorded in the public records. Thereafter, the plaintiffs made demand on Block “T” Operating for the royalties pursuant to La.R.S. 31:212.21, et seq. Block “T” Operating rejected the plaintiffs’ demand, asserting that the public records did not evidence the plaintiffs’ overriding royalty interests.

IsThereafter, the plaintiffs filed this matter, naming Block “T” Operating and Block “T” Petroleum, Inc., the wells’ operator, as defendants. In their petition, the plaintiffs rejected the defendants’ defense under the public records doctrine. Instead, the plaintiffs set forth the attendant public records from the wells, noting that for both the wells in Acadia Parish and the well in Jefferson Davis Parish, the landowners’ reserved a certain royalty. Thereafter, the assignments of working interests by Kurios to the various working interest parties, including Block “T” Operating, was based on only a portion of the overall net revenue interest. The plaintiffs asserted that addition of the landowners’ reservation of royalties and that conveyed by the assignments of working interest participation demonstrated that Kurios retained a sufficient leasehold interest so as to have permitted it to convey the overriding royalty interests to the plaintiffs. This retention of the leasehold interest was apparent on the public records, the plaintiffs asserted, so as to defeat the defendants’ contention that they did not have notice of the unrecorded overriding royalty assignments.

The defendants responded to the petition with an exception of nonjoinder of a party. They alleged that the overriding royalty interests claimed by the plaintiffs arise from the working interests of the wells’ lessees. Block “T” Operating noted that it is only one such working interest owner and that any ruling would affect all of the working interest owners. It asserted that payment of an overriding royalty would decrease the working interest of each of the working interest owners, and, therefore, the plaintiffs’ claimed relief could not be accorded without the inclusion |4of all of the owners. The plaintiffs opposed the exception, denying the existence of a dispute that would require the joinder of all working interest owners. Rather, the plaintiffs argued that the public records verified its contention that they were owed an overriding royalty interest, that the working interest owners’ participations were similarly fixed in the public record, and that Block “T” Operating was the appropriate obligor for those royalties pursuant to La.R.S. 31:212.21, et seq. The trial court denied the exception of nonjoin-der.

The plaintiffs and Block “T” Operating filed motions for summary judgment, advancing the above theories. Block “T” Petroleum also filed a motion for summary judgment asserting that it is not an obligor of the plaintiffs. Instead, Block “T” Petroleum contended that it is only the contract operator of the wells pursuant to a 2007 Operating Agreement entered into with the wells’ working interest owners. Noting that the plaintiffs are not working interest owners, Block “T” Petroleum argued that it had no contractual relationship with the plaintiffs and did not have any other legal obligation to the plaintiffs as alleged.

Following a hearing on the three motions for summary judgment, the trial court granted summary judgment in favor of the plaintiffs and against Block “T” Operating. The trial court denied the motions of the defendants. It further made | Bthe judgment a final judgment for purposes of appeal under La.Code Civ.P. art. 1915.

Block “T” Operating and Block “T" Petroleum appeal and present the following issues for review in their brief to this court:

Whether under the Louisiana Public Records Doctrine, the Assignment of Overriding Royalty Interest held by Plaintiffs burdens the interest held by Block “T” Operating LLC in the leases and wells at issue.
Whether Block “T” Operating LLC, as owners of only a partial working interest in the wells and leases at issue, can be held to Plaintiffs for the entirety of any overriding royalties due from the wells at issue.
Whether the Judgment is an absolute nullity because the Judgment sought by the Plaintiffs and entered by the District Court burdens the real rights of persons not made parties to the lawsuit by Plaintiffs.
Whether Block “T” Petroleum, Inc. who is only a contract operator of the wells at issue and does not own any interest in the leases or wells at issue, owes any obligation to Plaintiffs for payment of overriding royalties.

Discussion

Louisiana Code of Civil Procedure Article 966

Largely, this appeal addresses the trial court’s rulings on three motions for summary judgment. Accordingly, we begin our consideration of those matters in reference to La.Code Civ.P. art. 966(B)(2), which provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogato-ríes, and admissions, together with the affidavits, if any, show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” As for the burden of proof on the motion, Article 966(C)(2) indicates that:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is Rbefore the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

On appeal, an appellate court reviews a summary judgment de novo using the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate. Louisiana Safety Ass’n of Timbermen-Self Insurers Fund v. Louisiana Ins. Guar. Ass’n, 09-0023 (La.6/26/09), 17 So.3d 350.

Public Records Doctrine

The defendants’ argument in opposition to the plaintiffs’ motion for summary judgment and in support of the Block “T” Operating motion for summary judgment rests upon the public records doctrine. In this regard, Louisiana Civil Code Article 3338 provides:

The rights and obligations established or created by the following written instruments are without effect as to a third person unless the instrument is registered by recording it in the appropriate mortgage or conveyance records pursuant to the provisions of this Title:
(1) An instrument that transfers an immovable or establishes a real right in or over an immovable.
(2) The lease of an immovable.
(3) An option or right of first refusal, or a contract to buy, sell, or lease an immovable or to establish a real right in or over an immovable.
(4) An instrument that modifies, terminates, or transfers the rights created or evidenced by the instruments described in Subparagraphs (1) through (3) of this Article.

In Cimarex Energy Co. v. Mauboules, 09-1170, pp. 19-20 (La.4/9/10), 40 So.3d 931, 944, the Louisiana Supreme Court noted that La.Civ.Code art. 3338 |7now generally sets forth the public records doctrine, and explained that the “doctrine has been described as a negative doctrine because it does not create rights, but, rather, denies the effect of certain rights unless they are recorded.” It further stated that:

In explaining the negative nature of the doctrine, this Court has stated that third persons are not allowed to rely on what is contained in the public records, but can rely on the absence from the public records of those interests that are required to be recorded. The primary focus of the public records doctrine is the protection of third persons against unrecorded interests.

Id. (Citations omitted.)

In support of their argument, the defendants point out that the assignments of overriding royalty interests were confected between Kurios and the plaintiffs. The resulting assignments were not recorded in the public records until after Kurios transferred certain working interests and net revenue interests to various parties. Thus, the defendants contend, La.Civ.Code art. 3338 indicates that the overriding royalty interests are without effect to them, insofar as they are third parties. However, this argument wrongfully places the focus of this case on Block “T” Operating’s role as an interest owner in the wells at issue.

Review of the plaintiffs’ petition, their submission in support of their motion for summary judgment, and the hearing transcript reveals that this case is one directed to Block “T” Operating in its role as the party who distributes the revenues from wells. Block “T” Operating’s role as one of the working interest and net revenue interest owners is largely relevant to its own motion for summary judgment, discussed below.

With regard to their motion for summary judgment, the plaintiffs submitted the various assignments at issue in this case, including the assignments of overriding royalty interests, the assignments of oil, gas and mineral leases to | ¿various leaseholders, and assignments and bills of sale executed between Kurios and Block “T” Operating. It is unquestioned that the assignment of overriding royalty interests were not recorded in the public records until after Block “T” Operating acquired its ownership interest. However, the recorded documents indicate that the net revenue interest owners received only a portion of the leasehold interest of each well. The retained leasehold, the assignments demonstrate, was sufficient so as to create the overriding royalty interest in the percentages claimed by the plaintiffs. The trial court recognized the retention of a sufficient leasehold by the plaintiffs so as to create the overriding royalty interests, and we do not find error in that recognition in light of the percentages assigned to the working interest owners.

The plaintiffs’ submission further indicates, through the affidavit of Mr. Freeman and Mr. Block, that Kurios paid all royalties accrued until September 2010. Block “T” Operating began doing so thereafter. After demand and in correspondence, Block “T” Operating responded that it “is responsible for properly distributing oil and gas revenues from the properties in which your clients claim an interest.” Further, at the hearing on the motions for summary judgment, counsel for the defendants explained that Block “T” Petroleum is the operator of the wells and that Block “T” Operating is “the one paying.” Thus, the trial court did not err in finding that Block “T” Operating is the appropriate party to be cast in judgment for payment of the overriding royalty interests.

Finally, we find no merit in Block “T” Operating’s argument that the trial court erred in denying its own motion for summary judgment. As stated above, Block “T” Operating’s argument is premised on the application of the public records doctrine and focuses on the recording date of the overriding royalty interests. However, as recognized by the trial court, the percentage of interests 19received by Block “T” Operating, in its capacity as an owner of the working interest and net revenue interest, is fixed by the various assignments at issue. Despite its assertion, there is no indication that payment of the plaintiffs’ overriding royalty interest affects the percentage of net revenue interest ultimately received by Block “T” Operating which is, in fact, commemorated by the public records.

Accordingly, we find no merit in the defendants’ contention that the trial court erred in granting the motion for summary judgment filed by the plaintiffs and in denying that filed by Block “T” Operating.

Exception of Nonjoinder of a Party

Block “T” Operating also questions the trial court’s denial of its exception of nonjoinder of a party. In its motion, Block “T” Operating observed that it is only one of multiple working interest owners in the wells and attendant leases. As the overriding royalty claim burdens all of the working interest claims, Block “T” Operating claims, all working interest owners must be made party to the suit.

Louisiana Code of Civil Procedure Article 641 provides that:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:
(a) As a practical matter, impair or impede his ability to protect that interest.
(b) Leave any of the persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations.

In the event an adjudication is made without making a person described in La.Code Civ.P. art. 641 a party, the judgment is an absolute nullity. Avoyelles Parish Sch. Bd. v. Bordelon, 11-126 (La.App. 3 Cir. 10/5/11), 77 So.3d 985 (quoting Stephenson v. Nations Credit Fin. Servs. Corp., 98-1688 (La.App. 1 Cir. 9/24/99), 754 So.2d 1011).

On review, we do not disturb the trial court’s denial of the exception of nonjoin-der. We first point out that the plaintiffs’ suit was not directed to Block “T” Operating in its capacity as a working interest owner, although it held this status as well. Rather, the action, and resulting judgment, was directed to Block “T” Operating as the party responsible for properly distributing the revenues from the well, as discussed above. Furthermore, we note that the judgment denying the exception of nonjoinder of parties provided leave to the defendants “to join all parties as third party defendants whom defendants reasonably believe may have an interest in the subject matter of this litigation.” The record contains no such action by the defendants.

This argument lacks merit.

Block “T” Petroleum, Inc.

Finally, Block “T” Petroleum contests the trial court’s denial of its motion for summary judgment. It further notes that, in reasons for ruling, the trial court stated that “Block “T” Petroleum has an obligation, as the contract operator, to account for and pay for production from the well to the rightful owners.” Block “T” Petroleum objects to such a determination, pointing out that any duties it owes are to the working interest owners. Insofar as the plaintiffs are not working interest owners and allege only that they are overriding royalty interest owners, Block “T” Petroleum argues, it has no legal or contractual obligations to the plaintiffs. Thus, Block “T” Petroleum asserts that the trial court erred in failing to grant its motion for summary judgment.

| „In discussion of this aspect of the defendants’ appeal, we first point out that a trial court’s reasons for ruling form no part of the judgment and are not reviewed by an appellate court. Wooley v. Lucksinger, 09-0571 (La.4/1/11), 61 So.3d 507. Instead, appeals are taken from a judgment only. Id.

Additionally, consideration of the complained of statement within a larger context is helpful for discussion purposes. First, the trial court’s judgment did not impose duties or obligations on Block “T” Petroleum. Rather, and although the judgment denied the defendant’s motion for summary judgment, the judgment entered ordered only Block “T” Operating to take any action. Second, the context of the complained of statement in the reasons for ruling confirms that the focus of the trial court’s ruling was only Block “T” Operating. The trial court stated, in part:

Block T Operating is the responsible party to properly distribute the oil and gas revenues from the wells at issue. (Block T Petroleum has an obligation, as the contract operator, to account for and pay for production from the well to the rightful owners.) By virtue of the assignment between Kurios Oil & Gas, LLC to Block T Operating of a 20% working interest and 14% net revenue interest, Kurios thereby reserved a leasehold interest sufficient to create the overriding royalty interest to the plaintiffs. Thus, on the face of the public records, Block T Operating is vested with a 14% net revenue interest. The subsequent recorded assignment to plaintiffs do not have any [ejffect on the participation of Block T Operating in production. Block T Operating still pays its joint interest billing based upon 20% working interest and receives a 14% net revenue interest. Royalty interests subsequently assigned by Kurios Oil & Gas have no [ejffect on the participation in production of Block T Operating. Block T Operating cannot create greater rights than those created by the assignment from Kurios.
Thus, plaintiffs are entitled to all overriding royalties due to them through the current date, together with legal interest thereon, as required by law. The remaining issue regarding the bad faith of defendants in denying payment of such funds will be reserved for a later date.

While the trial court references Block “T” Petroleum within the parenthetical comment, it included no similar determination within the judgment. Again, it is |i2the judgment that is on appeal and reviewed, not the reasons for reasons for ruling. See Wooley, 61 So.3d 507.

Finally, and with regard to Block “T” Petroleum’s contention that the trial court erred in denying its motion for summary judgment, we find no merit in this claim. Certainly, Block “T” Petroleum’s submission in support of its motion indicates that it is the contract operator of the well. Also, the president of Block “T” Petroleum states in his affidavit that the corporation owns no interest in the leases covering the wells. However, beyond those statements and the excerpt from an operating agreement entered into evidence, the relationship between Block “T” Petroleum and Block “T” Operating is ill-defined in the record. Accordingly, we find the trial court acted appropriately in rejecting Block “T” Petroleum’s motion for summary judgment.

This argument lacks merit.

DECREE

For the foregoing reasons, the judgment entered by the trial court is affirmed. All costs of this proceeding are assessed to the appellants, Block “T” Operating, LLC and Block “T” Petroleum, Inc.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

|,In my view, the pivotal issue before us is whether plaintiffs overriding royalty interests burdened Block “T” Operating’s interests. Plaintiffs point to no evidence in the record that proves that their interests are mutually exclusive from those of Block “T” Operating.

Clearly, an issue of fact exists as to the effect of paying plaintiffs’ overriding royalty interests. Whether plaintiffs’ overriding royalty interests burden Block “T” Operating’s or any working interest holder’s interest is determinate of whether the public records doctrine is applicable. If plaintiffs’ interests have no effect on Block “T” Operating’s interests, then who recorded their real right first is irrelevant. Conversely, if plaintiffs’ overriding royalty interests affect Block “T” Operating’s interests, then who recorded their real right first is dispositive between them.

As such, I would find that a material fact exists on this issue and reverse the trial court’s grant of plaintiffs’ motion for summary judgment. Further, I would order that all entities having a working interest in the wells be joined in the litigation.

      . Entitled, "Nonpayment of production payment or royalties; notice prerequisite to judicial demand[,]” La.R.S. 31:212.21 provides:
      If the owner of a mineral production payment or a royalty owner other than a mineral lessor seeks relief for the failure of a mineral lessee to make timely or proper payment of royalties or the production payment, he must give his obligor written notice of such failure as a prerequisite to a judicial demand for damages.

      . The record contains Block "T" Operating's correspondence in response, which indicates:
      Block T Operating is responsible for properly distributing oil and gas revenues from the properties in which your clients claim an interest.
      The real property records indicate no reservation, or conveyance of override royalties, until very recently, and only then from Kurios to your clients. Prior to the conveyances of these override royalties, Kurios had previously assigned working interests out to numerous individuals and entities without a reservation or conveyance of override royalties.
      As the real property records define the legal ownership of real property, including overriding royalties, Block T is liable for distribution in accordance with the recording statutes of the State of Louisiana.
      Block T has obtained legal counsel with experience in oil and gas law and recording statutes within Louisiana. It has been advised that it would face liability to the working interest owners by paying out on previously unrecorded override royalty interests, unless it were to receive a release from the working interest owners. In accordance with this advice, Block T has sent out releases to the working interests owners. If it was the intent of the participation or other agreements to assign an override royalty interest to Kurios, (which was subsequently conveyed to your clients), and those working interest owners wish to release Block T Operating to release those override royalties, Block T will do so after receiving a release from those working interest owners.

      . Judgment was rendered, in part, as follows:
      [TJhere is judgment in favor of plaintiffs, JOSEPH B. FREEMEN, JR., MABEL T. FREEMAN, JOHN T. BLOCK and SALLY G. BLOCK, and against defendant, BLOCK "T” OPERATING, LLC, for all unpaid sums accruing to their overriding royalty interests from production of oil and gas from those oil and/or gas wells known as Thibo-deaux No. 1 Well and the Domingue No. 1 Well, situated in the South Bayou Mallet Field, Acadia Parish, Louisiana, equal to 2.5% of 8/8ths to plaintiffs, JOSEPH B. FREEMAN, JR. and MABEL T. FREEMAN, and 2.5% of 8/8ths to plaintiffs, JOHN T. BLOCK and SALLY G. BLOCK, and, the Victory Financial No. 1 Well, situated in the Welsh Field, Jefferson Davis Parish, Louisiana, equal to 2.456116% of 8/8ths to plaintiffs, JOSEPH B. FREEMAN, JR. and MABEL T. FREEMAN, and 2.456116% of 8/8ths to plaintiffs, JOHN T. BLOCK and SALLY G. BLOCK, together with legal interest thereon from date due until paid.


author: DANIEL L. DYSART, Judge. JENKINS, J.,

text:
    STATE of Louisiana v. Don C. FLEMINGS.
    No. 2012-KA-1345.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 17, 2013.
    Rehearing Denied Aug. 21, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge DANIEL L. DYSART, Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   DANIEL L. DYSART, Judge.

| iDon C. Flemings seeks review of the trial court’s denial of his motion to reconsider sentence. Defendant was sentenced on Count I, violation of La. R.S. 14:(27)30.1, attempted second degree murder, to thirty-six years at hard labor, without benefit of probation, parole or suspension of sentence. He was sentenced on Count II, violation of La. R.S. 14:64.3, armed robbery with a firearm, to thirty years at hard labor, without benefit of probation, parole or suspension of sentence. The sentences were ordered to run concurrently, with credit for time served.

For the following reasons, we affirm the convictions on both counts and the sentence as to the attempted second degree murder conviction, but vacate the sentence on Count II, and remand for re-sentencing.

FACTUAL BACKGROUND:

Based on testimony at trial, the victim, Romalace James, walked outside his mother’s home to smoke a cigarette. While leaning against his mother’s car in the 12lot next door, which his mother also owned, he was initially approached by three men, one of whom walked away prior to the incident. He recognized one of the remaining men as the defendant, and testified that he was the grandson of a friend of his father’s. The man whom James did not recognize held a gun and ordered him to throw down his cell phone and car keys. The man with the gun left. The defendant, who was also carrying a gun, shot James in his neck and stomach. James ran to his mother’s house, while being chased by the defendant. Before he could get in the door, the defendant shot him again in the leg. James told his mother that “Mr. Allen’s grandson” had shot him. It was established at trial that Mr. Allen’s grandson was the defendant.

DISCUSSION:

In both of his assignments of error, the defendant raises questions regarding his competency and the trial court’s failure to grant his motion to reconsider sentence and order a nunc pro tunc competency hearing.

The State argues, and the record supports, that the first time the defendant’s competency was called into question was at the sentencing hearing. At the hearing on defendant’s motion to reconsider sentence, defense counsel stated that the record contained medical records evidencing the defendant’s medical history, including proof of his bi-polar disorder and schizophrenia.

IsThe State further maintains that the defendant at no time offered any evidence that he suffered from schizophrenia and/or bi-polar disorder at the time of commission of the crimes or trial.

The record indicates that the first time the district court became aware of the defendant’s possible mental deficiency issues was at the original sentencing hearing when the defendant’s mother testified that he suffered from schizophrenia and bi-polar disorder since the age of fourteen. He had been hospitalized on two occasions. No medical evidence was offered to support her statements. She also told the court she was unhappy with defense counsel because he was not thorough.

There exists a general legal presumption that a defendant is sane and competent to proceed to trial. State v. Carmouche, 01-0405 (La.5/14/02), 872 So.2d 1020, 1041. When a trial court becomes aware of a bona fide doubt concerning a defendant’s competency, due process requires that the defendant be afforded a competency hearing. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). In this case, the trial court did not become aware of any limitations on the defendant’s ability to stand trial until after he was tried.

We thus find that this issue is not properly before us, and would be more properly raised in an application for post-conviction relief. See Zapata v. Estelle, 588 F.2d 1017 (5th Cir.1979). Therefore, we will not address the merits on direct appeal.

|4We must, however, address an error patent, namely the district court’s failure to sentence the defendant to an additional five years imprisonment pursuant to La. R.S. 14:64.3(A). Failure to do so results in an illegally lenient sentence. Therefore, we remand this matter to the trial court for resentencing.

Accordingly, we affirm the convictions on both counts and the sentence on Count I, vacate the sentence on Count II, and remand to the trial court for resentencing in compliance with La. R.S. 14:64.3(A).

CONVICTIONS AFFIRMED; SENTENCE ON COUNT I AFFIRMED; SENTENCE ON COUNT II VACATED; REMANDED FOR RE-SENTENCING.

JENKINS, J.,

concurs and assigns reasons.

hi concur in the result, but I add the following reasoning.

The record reflects that the defendant’s Motion to Reconsider Sentence did not include any attached medical documentation. “[T]his court is a court of record, which must limit its review to the evidence in the record before it.” Bd. of Directors of Indus. Dev. Bd. of City of New Orleans v. All Taxpayers, Prop. Owners, Citizens of City of New Orleans, 2003-0826, p. 4 (La.App. 4 Cir. 5/29/03), 848 So.2d 740, 744. The record also does not reflect that defense counsel properly introduced medical reports as evidence at the hearing on the Motion to Reconsider Sentence in order to support the argument that the defendant has suffered from schizophrenia and bi-polar disorder. Due to the lack of sufficient evidence in the record as to the issue of mental competency, this issue is more appropriately addressed through an application for post-conviction relief, filed in the trial court where a full evidentiary hearing can be conducted, rather than direct appeal. See State v. Bordes, 98-0086 (La.App. 4 Cir. 6/16/99), 748 So.2d 143; see also State v. Robinson, 12-22 (La.App. 5 Cir. 10/16/12) 102 So.3d 922.

      . The defendant filed in the record in this Court a motion to supplement the record with medical documentation he claims to have been lost by the district court. The trial attorney attached an affidavit to the motion attesting that he tendered the documents to the minute clerk at the hearing. The State countered with the affidavit of the trial ADA, who stated that the motion to reconsider was served on him, but did not have any medical records attached.
      We have denied the defendant’s motion to supplement based on the affidavits and the transcript of the hearing on the motion to reconsider sentence. The record before us does not indicate that medical evidence was properly introduced into the record. Therefore, because we are a court of record, we will not consider the medical records sought to be submitted by the defendant.


author: JOY COSSICH LOBRANO, Judge. JOY COSSICH LOBRANO, Judge. BELSOME, J.,

text:
    ROBERT L. MANARD III PLC & Robert L. Manard III v. FALCON LAW FIRM PLC, Timothy J. Falcon, Frank M. Buck, Jr. PLC & Frank M. Buck, Jr.
    No. 2012-CA-0147.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 16, 2012.
    Opinion on Rehearing April 10, 2013.

      Russ M. Herman, Steven J. Lane, Soren E. Gisleson, Herman Herman Katz <& Cot-lar, New Orleans, LA, for Plaintiffs/Appellants.
    Frank M. Buck, Jr., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge ROLAND L. BELSOME, Judge MADELEINE M. LANDRIEU, Judge JOY COSSICH LOBRANO).
   JOY COSSICH LOBRANO, Judge.

| ¡This appeal arises from a dispute involving three attorneys and their respective law firms over a division of fees from a class action lawsuit. The plaintiffs, Robert L. Manard, III, and Robert L. Manard, III, PLC, appeal a trial court judgment sustaining an exception of lis pendens raised by the defendants, Timothy J. Falcon, Falcon Law Firm, PLC, Frank M. Buck, Jr., and Frank M. Buck, Jr., PLC. For the following reasons, we reverse the trial court judgment and remand the case for further proceedings.

On December 20, 2002, Mr. Falcon and Mr. Buck filed a class action lawsuit in Civil District Court for the Parish of Orleans titled Warren Lester, et al. v. Exxon Mobil Corporation, et al., C.D.C. No. 2002-19657, Division N (“Lester”). In April 2003, Mr. Manard filed a petition to intervene in the suit, asserting a claim for a share of the attorneys’ fees. The trial court stayed the intervention, because it had not yet scheduled the matter for trial and no attorneys’ fees had been awarded.

| ¡At some point, the trial court divided the Lester plaintiffs’ claims into groups or “flights” for purposes of trial. One flight, the “French Jordan Flight” consisted of the claims by workers who allegedly had radiation exposure from cleaning pipes at the French Jordan/ Shield Coat yard in Houma, Louisiana.

Prior to trial, Mr. Falcon and Mr. Buck settled the claims of the French Jordan Flight plaintiffs. Mr. Manard then re-urged his petition for intervention, asserting a claim for a share of the attorneys’ fees generated from the French Jordan Flight settlement. Mr. Falcon and Mr. Buck filed a motion to dismiss the petition for intervention, arguing that Mr. Manard was not entitled to a portion of the attorneys’ fees in the Lester case because he was not a party to any written contingency fee contract with any of the plaintiffs, citing deReyna v. Pennzoil Exploration, 2004-97 (La.App. 3 Cir. 8/4/04), 880 So.2d 124, writ denied, 2004-2261 (La.11/19/04), 888 So.2d 197. In response, Mr. Manard argued that his petition for intervention asserted not only a claim to a share of the contingency fee, but also claims of unjust enrichment and quantum meruit.

Following a hearing on November 6, 2009, the trial court rendered a judgment on December 10, 2009, that stated, in part, “IT IS HEREBY ORDERED that the Motion to Dismiss Intervention of Robert L. Manard, [III] individually and Robert L. Manard, [III,] PLC is GRANTED with prejudice with each party to bear its own costs.” However, in the heading (not the body) of the judgment, immediately under the case name, it stated, “FRENCH JORDAN FLIGHT ONLY” (emphasis in original). Mr. Manard did not seek review of the December [olO, 2009 judgment, and it became final and definitive. Thereafter, Mr. Manard filed a motion to lift the stay of the petition for intervention in the Lester case as to the remaining plaintiffs’ claims. The trial court denied the motion.

Meanwhile, on November 5, 2009, Mr. Manard and Robert L. Manard, III, PLC filed a petition for breach of contract against Mr. Falcon, Mr. Buck and their respective law firms, asserting claims of breach of contract, unjust enrichment, and quantum meruit. According to the petition, in June 2001, Mr. Falcon contacted Mr. Manard to assist him in representing individuals who were exposed to NORM while cleaning contaminated oilfield pipes. At the time, Mr. Manard employed Mr. Buck as an attorney at his firm, Robert L. Manard, III, PLC. Mr. Falcon proposed a joint venture to divide efforts, allocate resources, and lessen the burden of litigating a class action lawsuit. Pursuant to the joint venture, Mr. Falcon would fund 75% of the litigation costs and Mr. Manard 25%. Regarding attorneys’ fees, Mr. Falcon would receive 55% of the fees and Mr. Manard would receive the remaining 45%. In turn, Mr. Manard would pay Mr. Buck 44% of his 45% fee. The petition further alleged that after Mr. Falcon and Mr. Ma-nard orally agreed to the joint venture in October 2001, Mr. Manard sent him a capital contribution check in the amount of $2,311.50 and paid advertising and other litigation costs. On February 13, 2002, Mr. Falcon attempted to dissolve the joint venture, and in March 2002, he returned the capital contribution check to Mr. |4Manard uncashed. Meanwhile, Mr. Buck terminated his employment with Robert L. Manard, III, PLC, and formed his own professional corporation, Frank M. Buck, Jr., PLC.

In response, the defendants raised decli-natory exceptions of lis pendens and insufficiency of service of process, as well as peremptory exceptions of no cause of action, res judicata and prescription.

At a hearing on the exceptions, the defendants argued that lis pendens applied because the petition for breach of contract filed by Mr. Manard in the instant case was identical to his petition for intervention in the Lester case. Mr. Manard, on the other hand, argued that the petitions were not the same. He explained that his petition for intervention in Lester was dismissed only as to the French Jordan Flight plaintiffs, because he was not a party to any of their written contingency fee contracts. He argued that the underlying petition for breach of contract asserted alternative theories of recovery, i.e., breach of contract, unjust enrichment and quantum meruit as to the French Jordan Flight claims and the other Lester plaintiffs’ claims in which he was not a party to the contingency fee contracts. After reviewing the petition for intervention in Lester and the underlying petition for breach of contract, the trial court concluded they were identical and rendered a judgment, sustaining the exception of lis pendens, pretermitting a ruling on the other exceptions. This appeal followed.

The standard of review on appeal of a ruling on an exception is the manifest error — clearly wrong standard. See Guitreau v. Kucharchuk, 99-2570, p. 8 (La.5/16/00), 763 So.2d 575, 580-81, citing Stobart v. State of Louisiana, through Department of Transportation and Development, 92-1328 (La.4/12/93), 617 So.2d 880.

Louisiana Code of Civil Procedure article 531, relative to lis pendens, provides:

When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in La. Code Civ. Proc. Ann. Art. 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.

For lis pendens to be maintained the object of the suit needs to be the same in both suits. Estilette v. Rogers, 301 So.2d 372 (La.App. 4th Cir.1974). The test for lis pendens is to determine whether a final judgment in the first suit would be res judicata in the second suit. Glass v. Alton Ochsner Medical Foundation, 2002-0412, p. 4 (La.App. 4 Cir. 11/6/02), 832 So.2d 403, 406.

Res judicata is an issue preclusion device whose purpose is to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Terrebonne Fuel & Lube, Inc. v. Placid Refining Co., 95-0654, 95-0671 (La.1/16/96), 666 So.2d 624, 631. Under Louisiana law, after a final judgment, res judicata bars relitigation of any subject matter arising from the same transaction or occurrence of a previous suit. Cochrane v. Louisiana Tax Commission, 2004-1671, p. 7 (La.App. 4 Cir. 5/18/05), 905 So.2d 353, 358; La. R.S. 13:4231; La.C.C.P. art. 425. Louisiana’s res judicata statute, La. R.S. 13:4231, provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of the final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The Louisiana Supreme Court set forth five criteria that must be met for a matter to be considered res judicata: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

In the instant case, there is no dispute that the first two requirements of La. R.S. 13:4231, the existence of a valid and final judgment, are met (the Decem-berJjlO, 2009 judgment). Also, the third criterion is met, as Mr. Manard named Mr. Falcon, Falcon Law Firm, PLC, Mr. Buck and Frank M. Buck, Jr., PLC, as defendants in both the Lester suit intervention claim and the present breach of contract suit. The fourth criterion is satisfied because the causes of action (breach of contract, unjust enrichment and quantum me-ruit) asserted in the present suit existed at the time of the final judgment in the first litigation (the Lester suit intervention claim). The fifth criterion is also satisfied. The cause of action asserted in the second suit arose out of the same transaction or occurrence that was the subject matter of the intervention: Mr. Manard filed the present breach of contract suit for remuneration for services rendered in the Lester case. Thus, based upon the foregoing analysis, it would appear that the matter is res judicata.

However, La. R.S. 13:4231(3) provides that a judgment in favor of either the plaintiff or the defendant is conclusive in any subsequent action between them with respect to any issue actually litigated and determined. In the present case, no court has litigated and rendered a judgment on Mr. Manard’s claims of breach of contract, unjust enrichment and/or quantum meruit. The record indicates the trial court rendered the December 9, 2009 judgment, dismissing Mr. Manard’s intervention in the Lester suit only as to the French Jordan Flight plaintiffs’ claims, solely because he was not a party to their contingency fee contracts. Thus, the December 9, 2009 judgment, although final, is not res judica-ta as to Mr. Manard’s breach of contract suit arising from the defendants’ representation of the Lester plaintiffs, including the French Jordan Flight plaintiffs. Absent a finding of res judicata to bar this second suit, we find the trial court erred in sustaining the defendants’ exception of lis pendens.

| sFinally, we note that the defendants have raised the exception of prescription in their appellee brief in the event we reverse the trial court’s sustaining of the exception of lis pendens. They argue that Mr. Ma-nard’s breach of contract suit is merely a claim for compensation for services rendered that has prescribed because more than three years have elapsed between the work he performed and the date he filed his suit, citing La. C.C. art. 3494(1).

Mr. Manard has acknowledged in his appeal brief that his claim for damages for breach of contract, unjust enrichment and quantum meruit for work he allegedly performed in the Lester suit is derived from the written contingency fee contracts between the defendants herein and the Lester plaintiffs. In a contingency fee agreement between a plaintiff and his attorney, the three year prescriptive period provided in La. C.C. art. 3494 does not commence until the payment has been realized. See La. C.C. art. 3495 (“This prescription commences to run from the day payment is exigible”). In the context of a contingency fee, the payment of the attorneys’ fees becomes exigible when the plaintiffs underlying claim is paid. In this case, the three-year prescriptive period for Mr. Manard’s breach of contract claims against the defendants commences to run when the Lester plaintiffs’ claims are paid. Because the record contains no evidence that the Lester plaintiffs’ claims have been paid, the exception of prescription is overruled.

1 ^DECREE

Accordingly, for the above reasons, the judgment of the trial court sustaining the exception of lis pendens is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED

ON APPLICATION FOR REHEARING

JOY COSSICH LOBRANO, Judge.

| ,On the application of the defendants, we grant rehearing to reconsider our November 16, 2012 opinion insofar as we overruled the peremptory exception of prescription re-urged in their appellee brief.

In overruling the exception, we concluded that Mr. Manard’s breach of contract suit filed on November 5, 2009, is merely a claim for compensation for services rendered under La. Civ.Code art. 3494(1) with a three-year prescriptive period that commences to run when the Lester plaintiffs’ claims are paid and their attorneys, the defendants herein, collect their fees pursuant to their written contingency fee contracts, citing La. Civ.Code art. 3495. Upon further review, we now conclude we erred in holding such.

Mr. Manard’s petition alleges a claim for damages resulting from a breach of contract, or unjust enrichment and quantum meruit, all arising from a joint venture or fee sharing arrangement that he and Mr. Falcon orally agreed to in October 2001.

|2In Duer & Taylor v. Blanchard, Walker, O’Quinn and Roberts, 354 So.2d 192 (La.1978), the Louisiana Supreme Court held that where an attorney retained in a case employs or procures the employment of another attorney to assist him, the agreement constitutes a joint venture or special partnership with respect to division of the fee. Id. at 194-95, citing McCann v. Todd, 208 La. 631, 14 So.2d 469 (1943). Each attorney shares “the right to participate in the fund resulting from the payment of the fee by the client.” Id. at 195. Accordingly, in that case the Court concluded that a suit by one attorney against the other attorney to recover a portion of the collected fee pursuant to the agreement is not one seeking recovery of attorney’s fees governed by the three-year prescriptive period of former La. Civ.Code art. 3538, but rather was one for breach of the agreement to share in the fund resulting from the payment of the fee and governed by the ten-year prescriptive period of former La. Civil Code art. 3544. Id.

However, the courts have declined to apply the joint venture theory to support an equal division of the fee when the attorneys have not been jointly involved in the representation of the client. See Dukes v. Matheny, 20002-0652, p. 5 (La.App. 1 Cir. 2/23/04), 878 So.2d 517, 520, citing Brown v. Seimers, 98-694 (La.App. 5 Cir. 1/13/99), 726 So.2d 1018, 1022, writ denied, 99-0430 (La.4/1/99), 742 So.2d 566 and Matter of P & E Boat Rentals, Inc., 928 F.2d 662, 665 (5th Cir.1991). Rather, the apportionment of the fee in those types of cases has been based on quantum meruit. Brown, 726 So.2d at 1023. On a quantum meruit basis, an attorney may receive payment only for the services he performed and the responsibilities he assumed. See Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102 (La.1978).

The defendants argue that the three-year prescriptive period of La. Civ.Code 3494(1) applies in this case rather than the ten-year prescriptive period of La. Civ. Code art. 3499 because Mr. Manard is merely seeking compensation for professional services rendered.

Louisiana jurisprudence is well settled that the character of an action as disclosed in the pleadings determines the applicable prescriptive period. SS v. State ex rel. Dept. of Social Services, 02-0831, p. 7 (La.12/4/02), 831 So.2d 926, 931; Starns v. Emmons, 538 So.2d 275, 277 (La.1989); Qayyum v. Morehouse General Hospital, 38,530 (La.App. 2 Cir. 5/12/04), 874 So.2d 371, 374. It is equally well settled that prescription is stricti juris and the statutes on the subject cannot be extended from one action to another. Duer, 354 So.2d at 194.

“The declinatory exception, the dilatory exception, and the peremptory exception when pleaded before or in the answer shall be tried and decided in advance of the trial of the case.” La. Code of Civ. Proc. art. 929(A). “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” La.Code of Civ. Proc. art. 931.

14As noted in our original opinion, the defendants raised declinatory exceptions of lis pendens and insufficiency of service of process, as well as peremptory exceptions of no cause of action, res judi-cata and prescription. The trial court held a hearing on September 9, 2011, and the transcript of the hearing indicates the court considered only the exception of lis pendens. Thereafter, the trial court sustained that exception and pretermitted ruling on the other exceptions. Although the parties introduced evidence at the hearing, the evidence does not clearly establish the nature of the relationship between the parties. Thus, we cannot determine the appropriate prescriptive period for the purpose of ruling on the exception of prescription.

DECREE

Accordingly, for the reasons set forth herein and in our original opinion, the judgment of the trial court sustaining the exception of lis pendens is reversed and the case is remanded to the trial court for further proceedings, including a trial of the defendants’ peremptory exception of prescription.

REVERSED AND REMANDED.

BELSOME, J.,

concurs in part and dissents in part with reasons.

hi agree that the application for rehearing should be granted for the sole purpose of clarifying this Court’s denial of the defendants’ exception of prescription. Unlike the majority, however, I believe that the appropriate prescriptive period is determinable from the record.

Manard originally filed an intervention in Warren Lester, et al. v. Exxon Mobil Corp., et al., district court case number 02-19657, to recover his attorney’s fees for services rendered, with respect to a distinct group of plaintiffs known as the “French Jordan Flight” plaintiffs. After some discovery, Manard learned that he was not named on the contingency fee contracts with the clients, and the trial court dismissed the intervention with prejudice as to the French Jordan Flight plaintiffs only.

Manard filed the instant lawsuit asserting breach of contract claims pursuant to a joint venture and alternative claims of quantum meruit or unjust enrichment. The defendants filed declinatory exceptions of insufficiency of service of process and lis pendens, as well as peremptory exceptions of no cause of action, res judi-cata, and prescription. The trial court granted defendants’ exception of lis pen-dens and pretermitted the remaining issues.

lain this Court’s original opinion on appeal, we held that Manard’s non-contingency fee claims (breach of contract, unjust enrichment, and quantum meruit) were not barred by res judicata, because the original intervention was dismissed solely on the grounds that Manard was not named in the contingency fee contracts; therefore, the trial court’s ruling granting the lis pendens exception was erroneous. Yet, when overruling the defendants’ exception of prescription, this Court applied the three-year prescriptive period associated with actions for services rendered finding that Manard performed work which derived from the contingency fee contracts executed between the defendants and the Lester plaintiffs. In particular, this Court observed that the applicable prescriptive period relative to contingency fee contracts did not commence until the plaintiffs received payment for their claims, and, further, that the record in this case did not reflect that the Lester plaintiffs had received payment.

Since the instant claims do not involve claims made pursuant to the Lester contingency fee contracts, it was inappropriate to employ the prescriptive rules used in a contingency fee context to support the conclusion that the prescriptive period for the plaintiffs suit had not elapsed. Nevertheless, this Court’s denial of the prescription exception is sound.

Here, the majority finds that it could not determine the appropriate prescriptive period from the record, suggesting that the applicable period may be either three years, if the action is for services rendered, or ten years, if it is for breach of contract or quantum meruit. I disagree.

The pleadings and evidence clearly allege an action for a breach of contract pursuant to a joint venture and an alternative action under quantum meruit, or |3unjust enrichment, not a claim for services rendered. Both causes of action are subject to a liberative prescription period of ten years. See Duer and Taylor v. Blanchard, Walker, O’Quin and Roberts, 354 So.2d 192, 194-95 (La.1978), where the Court held that breach of a joint venture, or fee sharing, agreement is subject to a ten-year prescription period; and Bazile v. Arnaud Coffee Co., 465 So.2d 111, 115 (La.App. 4 Cir.1985), writ denied, 468 So.2d 1212 (La.1985), where this Court held that the ten-year liberative prescription applies to claims for unjust enrichment.

Manard’s lawsuit asserts that the joint venture was formed in October of 2001. He filed suit on November 5, 2009. Since the lawsuit was filed within ten years of the date of the alleged agreement itself, these claims are undoubtedly within the prescriptive period. Thus, I would grant the application for rehearing for clarification purposes only and maintain this Court’s denial the prescription exception.

      . The Lester plaintiffs included individuals who worked at various sites where oilfield drilling pipes contaminated with naturally occurring radioactive material ("NORM”) were cleaned.

      . A copy of the motion to lift the stay does not appear in the record. However, the defendants refer to it in their appeal brief and the trial court referred to it at the September 9, 2011 hearing on the exception of lis pendens, the transcript of which is in the record.

      . The breach of contract suit was allotted to Division "K” of Civil District Court and subsequently transferred to Division "N,” the section in which the Lester case was pending.

      . La. C.C.P. art. 425 provides, in part:
      Preclusion by judgment
      A. A party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.

      . La. C.C. art. 3494, provides, in pertinent part:
      The following actions are subject to a liber-ative prescription of three years:
      (1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board[.]

      . A joint venture "is defined as resulting from the undertaking by two or more persons to combine their property or labor in the conduct of a particular line of trade or general business, for joint profits, creating the status of partnership.’ " Parry v. Administrators of the Tulane Educational Fund, 2002-0382, p. 12 (La.App. 4 Cir. 9/4/02), 828 So.2d 30, 38, quoting Villarrubia v. Roy, 162 So.2d 86, 89 (La.App. 4th Cir.1964).

      . Former La. Civ.Code art. 3538 provided a three-year prescriptive period for actions by "attorneys for their fees and emoluments.” The article and former La. Civ.Code art. 3534, which had provided a liberative prescription of one year for certain actions, were replaced by current La. Civ.Code art. 3494, which establishes a single prescription of three years, by Acts 1983, No. 173, § 1, eff. Jan. 1, 1984.

      . Former La. Civ.Code art. 3544 provided, "In general, all personal actions, except those before enumerated, are prescribed by ten years." The substance of the article was reproduced as current La. Civ.Code art. 3499 by Acts 1983, No. 173, § 1, eff. Jan. 1, 1984.

      . La. C.C. art. 3494(1) states that the following is subject to a three-year liberative prescriptive period: An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, fees and emoluments of public officials, freight passage, money, lodging, and board[.]

      . As discussed by the majority, in Duer and Taylor v. Blanchard, Walker, O’Quin and Roberts, 354 So.2d 192, 194-95 (La.1978), the Louisiana Supreme Court specifically held that a suit by an attorney against another attorney to recover a portion of the fee collected by latter party from client pursuant the attorneys’ agreement for division of fee, is not one for recovery of attorney fees, but rather is one for breach of agreement to share in fund resulting from payment of fee.