author: PARRO, J.

text:
    Kathi BLANCHARD v. Henry Joseph BLANCHARD.
    No. 2012 CA 0106.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2012.
    Rehearing Denied Jan. 31, 2013.

      Benn Hamilton, Baton Rouge, LA, for Plaintiff-Appellant/Defendant-in-Recon-vention Kathi Blanchard.
    Scotty E. Chabert, Jr., Baton Rouge, LA, for Defendants-Appellees/Plaintiffs-in-Reconvention Henri M. Saunders and Dominick M. “Rusty” Bianca.
    Before PARRO, HUGHES, and WELCH, JJ.
   PARRO, J.

12Kathi Blanchard appeals a judgment dismissing her claims against Henri M. Saunders and Dominick M. Bianca, the attorneys who represented her ex-husband, Henry Joseph Blanchard, in a maritime personal injury suit. For the following reasons, we vacate in part, reverse in part, render in part, and remand with instructions to transfer a portion of this matter to the Nineteenth Judicial District Court.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2008, Kathi Blanchard (Kathi) asked attorney Benn Hamilton to handle a divorce and community property settlement for her and her estranged husband, Henry Joseph Blanchard (Henry). The couple had worked out and agreed to all the details of their divorce and needed someone to formalize the documents and take their case before the court. The parties eventually obtained a divorce and entered into a voluntary settlement of community property and an agreement as to final spousal support. Henry had been injured -in a maritime accident and agreed that one-third of his personal injury settlement would be paid to Kathi as final spousal support within fifteen days after he received those proceeds. On June 3, 2008, The Family Court judge signed a judgment of divorce incorporating this agreement, as follows:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, within fifteen (15) days of HENRY JOSEPH BLANCHARD’S settlement or compromise of his personal injury claims, he shall cause to be made by his personal injury attorney, representative or other agent to KATHI BLANCHARD a final one-time payment of spousal support in the amount of thirty-three and one-third (33 1/3%) per cent of his personal injury settlement.

The judgment of divorce also included provisions for Henry to pay Kathi final periodic spousal support in the amount of $500 per month, to continue until he settled his maritime personal injury claim and paid her one-third of the settlement; this payment would constitute a final payment of spousal support.

Kathi and Henry also filed a “Compromise, Release and Community Property | .«¡Settlement,” which included the following paragraph:

NOW THEREFORE for and in consideration of the sum of thirty-three and one-third (33 1/3) per cent of any and all proceeds to be paid to HENRY JOSEPH BLANCHARD for personal injuries sustained by him, KATHI BLANCHARD settles and compromises her claim for final spousal support.

On or about April 11, 2011, Henry settled his maritime personal injury claim for $500,000. His attorneys, Saunders and Bianca, computed and deducted the fees, expenses, and advances incurred during the pendency of the suit and presented Kathi with a check in the amount of $24,481.24, which purportedly represented her one-third of the net proceeds. They also gave her a client disbursement sheet showing all case expenditures, loans, cash advances, and litigation expenses.

Kathi disagreed with the attorneys’ computation of the net proceeds and, on May 26, 2011, filed in The Family Court a petition seeking a declaratory judgment, as well as to enforce the divorce judgment and community property settlement, to object to the calculation of her portion of the settlement proceeds, and to question and contest certain expenses included in the settlement computations. Her petition also claimed past-due spousal support, contempt of court, attorney fees, and court costs from Henry. She named as defendants her ex-husband and his two personal injury lawyers. Her petition asked the court to define and declare her rights under the divorce judgment and compromise, release, and community property settlement rendered and filed in The Family Court. She claimed Saunders and Bianca used an improper method of computing her one-third share of Henry’s personal injury settlement, claiming she and Henry had agreed that her portion would be one-third of the gross settlement amount. She also claimed certain deductions were erroneous and/or were advances made to Henry designed to reduce her portion of the settlement. She deposited the check for $24,481.24 in the registry of the court and asked for a rule to show cause against Henry, Saunders, and Bianca.

Henry did not file any responsive pleadings to Kathi’s petition. Saunders and |4Bianca answered the petition and filed a reconventional demand against Kathi for filing a frivolous lawsuit, malicious prosecution, defamation, and intentional and negligent infliction of emotional distress. They also raised declinatory exceptions raising the objections of improper venue, lack of jurisdiction over the person of the defendants, and lack of jurisdiction over the subject matter of the action. In addition, they raised dilatory exceptions raising the objections of improper cumulation of actions and/or improper joinder of parties, and peremptory exceptions raising the objections of no cause of action and no right of action.

After a hearing on the exceptions on September 6, 2011, at which evidence was presented and Kathi testified, the court denied the exceptions of improper venue, lack of subject matter jurisdiction, and improper cumulation of actions, and granted the exceptions of lack of personal jurisdiction, improper joinder of parties, no cause of action, and no right of action. The judgment, which was signed September 23, 2011, dismissed with prejudice all claims against Saunders and Bianca and was designated as a final, appealable judgment. Kathi appealed the judgment; Saunders and Bianca answered the appeal, seeking an award of damages, attorney fees, and court costs for frivolous appeal, pursuant to LSA-C.C.P. art. 2164. Because it was clear that Kathi was owed at least the amount deposited in the registry of the court, the trial court ordered that those funds be released to her.

ISSUES ON APPEAL

Kathi presents the following issues for review: (1) Is a professional attorney-client relationship always necessary in order to justify a lawsuit against an adversary’s lawyer; (2) What are the legal standards for the exceptions of no cause of action and no right of action and how do they differ; and (3) What is the legal function of a petition for declaratory judgment and was it appropriate in this case?

Based on certain provisions concerning declaratory judgments, Kathi argues that she is an interested party with the right to seek a declaration and definition of the | ¡¡judgment in which she compromised her claim for final spousal support by agreeing to accept one-third of Henry’s personal injury settlement proceeds. See LSA-C.C.P. arts. 1871 and 1872. Under Article 1880, she joined the other parties, Saunders and Bianca, who were responsible for computing the amount of that payment, claiming their joinder was mandatory as parties who have an interest in or who would be affected by the declaratory judgment.

With reference to the exception raising the objection of no cause of action, she claims the well-pleaded facts of her petition set out a legal claim against Saunders and Bianca, as they were the ones who computed the ultimate amount that would be paid to her under the settlement, and she asserts they committed factual and legal errors in making those computations. She also accuses them of making “living expense” payments to Henry for a lavish lifestyle that was not necessary and contends that these payments were intended to reduce her ultimate share of the proceeds. Regarding the exception of no right of action, she asserts that she is the only person to whom the law grants the cause of action stated in her petition.

Saunders and Bianca claim that they had no contractual or other agreement with Kathi, and her claims are solely against her ex-husband, whose duty it was to “cause to be made” to Kathi a payment constituting one-third of his settlement proceeds. They |r,further claim that they owe her no duty. Because they felt the stipulated judgment of divorce lacked clarity, Saunders sent a letter to Kathi’s attorney, confirming that the “final, one-time payment” of spousal support from Henry’s settlement proceeds would be based on his “net recovery, after factoring in attorney’s fees and litigation expenses,” rather than on his gross recovery. They assert that by signing and returning the letter, a copy of which was admitted into evidence at the hearing, Hamilton agreed that this was his and his client’s understanding of the judgment.

Ultimately, their argument is that any cause of action stated in Kathi’s petition is against her ex-husband, acknowledging that if she has a cause of action, then she is the person who has the right to bring it against him. However, because they were not parties to the stipulations between Ka-thi and Henry, her right of action is not against them.

In their answer to the appeal, Saunders and Bianca claim they are entitled to damages for a frivolous appeal, because Kathi and her attorney represented to the court that they believed she was entitled to one-third of the gross settlement proceeds, when the letter signed and returned by Hamilton clearly acknowledged that the agreement was as to one-third of the net proceeds.

ANALYSIS

No Cause/No Right of Action

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South., Inc., 616 So.2d 1234, 1238 (La.1993). The function of an exception that raises the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Ramey v. DeCaire, 03-1299 (La.3/19/04), 869 So.2d 114, 118. No evidence may be introduced to support or controvert the exception raising the objection of no cause of faction. LSA-C.C.P. art. 931. All facts pled in the petition must be accepted as true. Rebardi v. Crewboats, Inc., 04-0641 (La.App. 1st Cir.2/11/05), 906 So.2d 455, 457. However, the jurisprudence recognizes an exception to this rule, which allows the court to consider evidence which is admitted without objection to enlarge the pleadings. Stephenson v. Nations Credit Fin. Services Corp., 98-1688 (La.App. 1st Cir.9/24/99), 754 So.2d 1011, 1021. In reviewing the petition to determine whether a cause of action has been stated, the court must, if possible, interpret it to maintain the cause of action. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Livingston Parish Sewer List. No. 2 v. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La.App. 1st Cir.9/22/00), 767 So.2d 949, 952, writ denied, 00-2887 (La.12/8/00), 776 So.2d 1175.

An action can only be brought by a person having a real and actual interest that he asserts. LSA-C.C.P. art. 681; Industrial Companies, Inc. v. Durbin, 02-0665 (La.1/28/03), 837 So.2d 1207, 1216. The function of the peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to a class of persons to whom the law grants the cause of action asserted in the suit. See LSA-C.C.P. art. 927(A)(6); Industrial Companies, 837 So.2d at 1216. The focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit; it assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation. Benoit v. Allstate Ins. Co., 00-0424 (La.11/28/00), 773 So.2d 702, 708. Evidence is admissible on the trial of an exception of no right of action to support or controvert the objections pleaded, when the grounds for the objections do not appear from the petition. LSA-C.C.P. art. 931. Whether a plaintiff has a right of action is a question of law; therefore, it is reviewed de novo on appeal. Gibbs v. Delatte, 05-0821 (La.App. 1st Cir.12/22/05), 927 So.2d 1131, 1135, writ denied, 06-0198 (La.4/24/06), 926 So.2d 548.

| sBased on the above, the first step for this court is to examine the petition to determine whether the law extends a remedy to Kathi against Saunders and Bianca under the factual allegations of the petition. In paragraph 5 of the petition, Ka-thi alleged that the divorce judgment and community property settlement between herself and Henry required him and his personal injury attorneys to pay her the sum of thirty-three and one-third percent of his personal injury settlement within fifteen days of settlement. In paragraph 7, she claimed, upon information and belief, that Henry had settled his personal injury claims against all liable parties on or about April 14, 2011, and was represented in this matter by Saunders and Bianca. Paragraph 8 stated that she sought a declaration of her rights under the divorce judgment and community property settlement rendered or filed in the family court lawsuit. Paragraph 9 alleged that Saunders intended to use an inappropriate and improper method of computing her thirty-three and one-third percent of Henry’s personal injury settlement. Paragraph 10 stated that she and Henry had agreed that the calculation of her percentage would be based on the proceeds of his gross settlement. Paragraph 11 alleged that Saunders and Bianca had improperly deducted from Henry’s personal injury settlement certain loans, cash advances, and/or expenses on behalf of Henry. In paragraph 12, Kathi stated that a Medicare allocation or set-aside for future medical services or future Medicare benefits to be received by Henry was improperly deducted from the personal injury settlement prior to the computation of petitioner’s portion, and in paragraph 13, she alleged that this calculation was based on inaccurate and incorrect information and was, therefore, defective in the calculation of her overall amount. Paragraph 14 stated that Saunders and Bianca had deducted from Henry’s personal injury settlement certain medical expenses and medical bills that should have been covered by Henry’s medical and hospitalization insurance. Finally, in paragraph 15, she stated that it appeared from the client disbursement sheet, which was prepared by Saunders, that certain expenses paid on behalf of 19Henry were duplicates, not necessary living expenses, or otherwise camouflaged advances designed to reduce her settlement portion. In paragraph 20, she stated that these incorrect and inappropriate computations resulted in a tender to her of the amount of $24,481.24, deemed to be full payment of her claim against Henry’s personal injury settlement.

Cause of Action/Right of Action in Non-Client Suit Against Attorneys

The issue is whether Kathi has stated a claim against Saunders and Bianca that, based on statutory law or jurisprudential rulings, entitles her to the relief she seeks. Or, as posed in her brief to this court, is a professional attorney-client relationship always necessary in order to justify a lawsuit against an adversary’s lawyer? In the case of Penalber v. Blount, 550 So.2d 577, 579 (La.1989), the supreme court addressed a situation in which the Livingston Parish Police Jury had filed an action against an adversary’s attorney, alleging that the attorney had knowingly violated statutory and constitutional prohibitions against seizure of public assets by seizing its property after intentionally failing to notify it of the seizure. The court noted that Louisiana subscribes to the traditional, majority view that an attorney does not owe a legal duty to his client’s adversary when acting in his client’s behalf. Id. A non-client, therefore, generally cannot hold his adversary’s attorney personally liable for either malpractice or negligent breach of a professional obligation. Id. at 581. The intent of this rule is not to reduce an attorney’s responsibility for his or her work, but rather to prevent a “chilling effect” on the adversarial practice of law and to prevent a division of the loyalty owed to a client. Id. Therefore, if the police jury had alleged facts establishing only a negligent wrongful seizure of police jury assets, the attorney’s exception of no cause of action would be sustained. Id. at 582. However, because the police jury’s petition asserted that the attorney’s action was intentionally tortious and set forth allegations of intentional culpable acts on the part of the attorney, the exception of no cause of action could not be sustained. The court stated, “Intentionally 1 lfttortious actions, ostensibly performed for a client’s benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client’s adversary, under the broad ambit of LSA-C.C. art. 2315, an attorney may be held personally accountable for his intentional tortious conduct....” Id.

In a later case, Montalvo v. Sondes, 93-2813 (La.5/23/94), 637 So.2d 127, the supreme court reiterated that since an attorney does not owe a legal duty to his client’s adversary when acting on the client’s behalf, the non-client could not hold the adversary’s attorney personally liable for malpractice or negligent breach of a professional obligation, but could bring a cause of action against the attorney based on intentional tort. Id. at 130. However, the supreme court stated that the Penalber requirement of only general intent to bring about a result that would invade the interest of another in a way that the law forbids, was too broad and would have a chilling effect on an attorney’s work on behalf of his client. Therefore, in the Montalvo case, the supreme court stated that the facts in the plaintiffs petition had to allege that the attorney defendants intended to cause direct harm to the plaintiff. Emphasizing this requirement, the court further stated, “[W]e believe it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney.” Id. (Emphasis added). Both Penalber and Montalvo address the situation in which a plaintiff files suit against his adversary’s present or former attorney. See also Crockett v. Crockett, 612 So.2d 89 (La.1993); Block v. Bernard, Cassisa, Elliott & Davis, 04-1893 (La.App. 1st Cir.11/4/05), 927 So.2d 339, 345; and Doyle v. Landry, No. 01-31482, 67 Fed.Appx. 241, 2003 WL 21108477, at *5 (5th Cir. April 21, 2003) (not published in Federal Reporter).

In footnote two of the Penalber opinion, the Louisiana Supreme Court clarified that the opinion did not address situations where the non-client is not an adversary, but a third-party beneficiary, citing Capital Bank & Trust Co. v. Core, 343 So.2d 284 (La.App. 1st Cir.1977), writ denied, 345 So.2d 504 and writ not considered. 345 So.2d 61 (La.1977), and Succession of Killingsworth, 270 So.2d 196 (La.App. 1st Cir.1972), writ granted, 273 So.2d 292 (La.1973), rev’d in part, aff'd in part, 292 So.2d 536 (La.1973). Penalber, 550 So.2d at 578 n. 2. In the Capital Bank case, the bank had advanced funds on the strength of a title opinion rendered to it by an attorney whom the bank did not retain. This court analogized this situation to a “stipulation pour autrui” under Louisiana law, pursuant to which one may bind himself for the benefit of a third party, and found that Capital Bank had alleged a cause of action for fraud against the attorney. Capital Bank, 343 So.2d at 288-89. Succession of Killingsworth involved a suit by legatees under a will that had been declared invalid against the attorneys who had prepared the will. This court held that evidence established that the will had been typed by the officiating notary public’s secretary, rather than by the notary/attorney, as was statutorily required. Succession of Killingsworth, 270 So.2d at 203. Therefore, the legatees’ claims against the notary/attorney could be maintained under Louisiana Civil Code article 2315. Id. at 205. The supreme court granted writs and reversed, finding that the testimony of subscribing witnesses to the testament was not supported by sufficient independent facts or reasonable inferences. Therefore, although the cause of action asserted by the legatees was not questioned, the will was declared valid. Succession of Killingsworth, 292 So.2d at 556 (on rehearing). In Joyner v. Wear, 27,631 (La.App. 2nd Cir.12/6/95), 665 So.2d 634, 640 n. 1, writ denied, 96-0040 (La.2/28/96), 668 So.2d 370, the court referred to footnote 2 in Penalber, noting that where the non-client was not an adversary, but a third-party beneficiary of the attorney’s actions, a negligence cause of action is recognized. See also Davis v. Parker, 58 F.3d 183 (5th Cir.1995). These cases demonstrate that non-client parties, whose interests as third-party beneficiaries of the attorney’s actions are negatively affected by his substandard work, can have a negligence cause of action against the attorney. Cf. Congress Square Ltd. P’ship. v. Polk, 2011 WL 837144, *11 n. 6 (E.D.La.3/4/11) (not reported in F.Supp.2d) (stating that the heightened intent requirement articulated in Montalvo 112logically extends to all claims of intentional tort asserted against an attorney by a non-client).

Examining the allegations of Ka-thi’s petition in the light of this jurisprudence, we note first that Kathi is not asserting a claim against an adversary’s attorneys; she was not an adversary to Henry in his maritime personal injury litigation. Rather, she was a non-client party for whose benefit the split of the settlement proceeds was intended, and claimed that the attorneys negligently and/or intentionally deducted expenses in a manner that damaged her interests. Her petition alleged that Saunders and Bianca made factual errors in computing some of the deductions from her portion of the settlement proceeds, including the Medicare set-aside; made deductions for medical expenses that should have been paid by Henry’s medical and hospitalization insurance; deducted some expenses twice; paid certain expenses that were not necessary living expenses, but were camouflaged advances designed to reduce her settlement portion; and used the wrong basis for her portion by tendering to her only net proceeds, rather than gross proceeds. Accepting all of these statements in the petition as true, as we are required to do in evaluating whether a cause of action has been stated, we conclude that Kathi has asserted a cause of action for negligence against the attorneys in their computation of her portion of the settlement proceeds. More importantly, given the somewhat murky standards stated in the jurisprudence on this issue, she has also alleged an intentional tort by stating that the attorneys deducted certain payments to Henry that were not necessary living expenses, but were camouflaged advances designed to reduce her portion. This allegation basically states that the attorneys intended, in fact, “designed” to directly harm her by reducing her portion of the settlement proceeds, and to achieve that end, made inappropriate advances to Henry that were camouflaged as legitimate and necessary cost-of-living expenses.

Usually, this would be the end of our inquiry as to the exception of no cause of action. However, in this case, because that exception was tried along with other 1 ^exceptions, including the exception of no right of action, which allows introduction of evidence, we may consider information beyond what was stated in the petition. Specifically, the record includes an August 6, 2008 letter from Saunders to Kathi’s attorney, asking Hamilton to confirm their recent conversation in which Hamilton had agreed with Saunders that it was his understanding, as well as his client’s, that the “one-third figure would be calculated from Henry’s net recovery, after factoring in attorney’s fees and litigation expenses incurred in connection with his personal injury claim.” Hamilton signed the letter to indicate his agreement, dated his signature August 8, 2008, and returned the signed letter to Saunders. Since an attorney acts as his client’s agent, Hamilton’s signature served as an expression of Kathi’s agreement to this calculation basis. Saunders and Bianca claim that the letter conclusively establishes that their computation was completed in accordance with Kathi and Henry’s agreement in the divorce and community property settlement.

The transcript of the hearing also includes Kathi’s testimony, in which she stated that although she had known of this letter, her understanding of it was that Hamilton did not sign it on her behalf, insisting she had never agreed that her portion would be based on net proceeds, as computed by Saunders and Bianca. She said she and Henry had agreed that the gross settlement amount would be split three ways, with Henry to get one-third, his attorneys to get one-third, and Kathi to get one-third. She testified that Saunders knew from their conversations, “all the way up through the trial,” that the calculation was based on her receiving one-third of the gross proceeds. She was particularly incensed that the disbursement sheet sent to her with the check showed that some of the deductions.were for the $500 per month spousal support that was awarded to her in the judgment of divorce, stating, “Why in the world would I want to be paying my own alimony ... ?” She also said that the disbursement sheet showed | useveral loans were made to Henry, including one for $6,000, plus $3,900 in interest. Unfortunately, the disbursement sheet was not introduced into evidence, so this court cannot review it.

Based on the wording of the confirmation letter between Saunders and Hamilton, the agreement was that Kathi’s one-third of the settlement proceeds would be calculated from Henry’s net recovery, after factoring in attorney’s fees and “litigation expenses.” The jurisprudence of this state, beginning with the case of Louisiana State Bar Ass’n. v. Edwins, 329 So.2d 437 (La.1976), has permitted attorneys to advance funds to their clients for minimal, necessary living expenses. See In re Maxwell, 00-3527 (La.3/30/01), 783 So.2d 1244, 1249. However, in Fountain v. Fountain, 93-2176 (La.App. 1st Cir. 10/07/94), 644 So.2d 733, this court examined a list of itemized expenses presented on a law firm’s invoice to determine whether they all qualified as “litigation expenses,” and found that many of those expenses, including payments of medical expenses, advances, and loans made to the client, were not true expenses of litigation. Id. at 743. Since April 2006, the circumstances and types of expenses that may be paid by an attorney to or on behalf of a client are listed in Rule 1.8 of the Rules of Professional Conduct, which states, in pertinent part:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except as follows.
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, provided that the expenses were reasonably incurred. Court costs and expenses of litigation include, but are not necessarily limited to, filing fees; deposition costs; expert witness fees; transcript costs; witness fees; copy costs; photographic, electronic, or digital evidence production; investigation fees; related travel expenses; litigation related medical expenses; and any other case specific expenses directly related to the representation undertaken, including those set out in Rule 1.8(e)(3).
| 1b(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
(4) In addition to costs of court and expenses of litigation, a lawyer may provide financial assistance to a client who is in necessitous circumstances, subject however to the following restrictions.
(i) Upon reasonable inquiry, the lawyer must determine that the client’s necessitous circumstances, without minimal financial assistance, would adversely affect the client’s ability to initiate and/or maintain the cause for which the lawyer’s services were engaged.
(iv) Financial assistance under this rule may provide but shall not exceed that minimum sum necessary to meet the client’s, the client’s spouse’s, and/or dependents’ documented obligations for food, shelter, utilities, insurance, non-litigation related medical care and treatment, transportation expenses, education, or other documented expenses necessary for subsistence.

Rule 1.8(e)(5) refers to the three types of financial assistance provided by a lawyer to a client as “court costs, expenses of litigation, or for necessitous circumstances.” Clearly, although loans and advances may be made by an attorney to a client for subsistence and in necessitous circumstances, such loans and advances are never to be considered “litigation expenses.” Even if the letter agreement between Saunders and Hamilton were interpreted as limiting Kathi’s recovery, it did not eliminate her cause of action for a declaration that certain deductions made by Henry’s attorneys from her portion of the settlement were not “litigation expenses” and were not in accord with the divorce judgment or the confirmation letter. Therefore, we conclude that Kathi has stated a cause of action against Saunders and Bianca.

With respect to Kathi’s right of action, having concluded that her petition states a valid cause of action, we conclude that she is the only person who has a legal interest in the settlement proceeds that are the subject of this litigation. Therefore, she has a right of action against Saunders and Bianca.

1 ^Declaratory Judgment Action/Improper Joinder/Jurisdiction

Louisiana Revised Statutes 13:1401 sets out the jurisdiction of The Family Court of East Baton Rouge. With reference to the matter before us, it states:

A. There is hereby established the family court for the parish of East Baton Rouge, which shall be a court of record with exclusive jurisdiction in the following proceedings:
(1) All actions for divorce, annulment of marriages, claims for contributions made by one spouse to the education or training of the other spouse, establishment or disavowal of the paternity of children, spousal and child support and nonsupport, and custody and visitation of children, as well as of all matters incidental to any of the foregoing proceedings, including but not restricted to the issuance of conservatory writs for the protection of community property, the awarding of attorney fees in judgments of divorce, the cumulation of and rendering executory of spousal and child support, the issuance of writs of fieri facias and garnishment under judgments of the court for spousal and child support and attorney fees, jurisdiction of which was vested in the Nineteenth Judicial District Court for the parish of East Baton Rouge prior to the establishment of the family court for the parish of East Baton Rouge.
(2)(a) All actions between spouses or former spouses for partition of community property and property acquired pursuant to a matrimonial regime.
(d) All actions between former spouses seeking the enforcement of a judicial or contractual settlement of claims provided in this Subsection. (Emphasis added).

The declaratory judgment articles of the Louisiana Code of Civil Procedure grant courts of record within their respective jurisdictions the authority to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. LSA-C.C.P. art. 1871. The purpose of these articles is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and they are to be liberally construed and administered. LSA-C.C.P. art. 1881. A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation, and the declaratory judgment will remove the uncertainty or terminate the dispute. Williams v. City of Baton Rouge, 02-0339 (La.App. 1st Cir.2/14/03), 848 So.2d 9, 13; Spicer v. Spicer, 10-1577 (La.App. 1st Cir.3/25/11), 62 So.3d 798, 800.

] i7Kathi’s petition was entitled: “Petition for Declaratory Judgment; To Enforce Divorce Judgment and Community Property Settlement; to Object to Calculation of Settlement; To Question and Contest Certain Expenses; and For Past-Due Spousal Support, Contempt, Attorney Fees and Court Costs.” She requested, in paragraph 8, that The Family Court define and declare her rights under the divorce judgment and compromise, release, and community property settlement rendered or filed in that court. Her former husband was named as a defendant. The Family Court in this case correctly concluded that it had subject matter jurisdiction over this matter, which involves an interpretation of a judgment and community property settlement between the spouses.

However, having found that Kathi had not stated a cause of action against Saunders and Bianca, the court sustained their exceptions raising the objection of improper joinder and lack of personal jurisdiction over Saunders and Bianca, neither of whom were involved in any way in the divorce or community property actions between Kathi and Henry. Kathi contends that this ruling was erroneous, basing her argument on the procedural rules governing actions for declaratory judgment, which state that all persons who have or claim any interest that would be affected by the declaration must be made parties, and no declaration may prejudice the rights of persons not parties to the proceeding. See LSA-C.C.P. arts. 1880 and 641; Blanchard v. Naquin, 428 So.2d 926, 928 (La.App. 1st Cir.), writ denied, 433 So.2d 162. (La.1983). Moreover, further relief based on a declaratory judgment or decree may be granted whenever necessary. LSA-C.C.P. art. 1878.

In this case, if The Family Court were to declare that Saunders and Bianca did not compute Kathi’s portion of the settlement proceeds in accord with the court’s judgment, it could then require them to recompute the amounts payable to her and to Henry, since Kathi has requested this additional relief in her petition. Such a computation could negatively affect the attorneys’ ability to recover, from Henry’s 11sportion of the settlement proceeds, the full amounts they paid to him as advances and loans. Under this rationale, it would appear that The Family Court would have personal jurisdiction over Saunders and Bianca and that their joinder was mandatory.

However, based on the wording of LSA-R.S. 13:1401(A)(2)(d), which establishes and defines the exclusive, but limited, subject matter jurisdiction of The Family Court, it is clear that when the enforcement of a judicial or contractual settlement of claims is the issue before the court, its jurisdiction is limited to actions between former spouses. In a recent case, the Louisiana Supreme Court enforced this limiting language when one spouse died while the partition of community property was being litigated and the other spouse sought to substitute the decedent’s succession executrix as a defendant. In McCann v. McCann, 11-2434 (La.5/8/12), 93 So.3d 544, 549, the court stated:

The Constitution allows for the granting of limited jurisdiction to the family courts, and the legislature has specified the parameters of that jurisdiction for the Family Court for the Parish of East Baton Rouge in [LSA-R.S.] 13:1401. In [LSA-R.S.] 13:1401(A)(2)(a), the legislature vested the Family Court with “exclusive jurisdiction” over “[a]ll actions between spouses and former spouses for partition of community property and property acquired pursuant to a matrimonial regime.” After the death of Mr. McCann, Ms. McCann’s partition action was no longer an action to partition community property or property acquired pursuant to a matrimonial regime between former spouses; instead, it became an action to partition such movable and immovable property between Ms. McCann and the succession legatees. To give effect to the statutory and constitutional language, and not render any part of that statute meaningless, we must conclude the Family Court was divested of exclusive but limited subject matter jurisdiction when one of the former spouses died. To do otherwise would be to enlarge the limited jurisdiction of the Family Court beyond that contemplated by the legislature.

Id. at 550-51 (Emphasis added).

Jurisdiction over the subject matter of a controversy is “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” LSA-C.C.P. art. 2; Amin v. Bakhaty, 01-1967 (La.10/16/01), 798 So.2d 75, 80. The jurisdiction of a court over the subject matter of an action or proceeding |incannot be conferred by consent of the parties. A judgment rendered by a court that has no jurisdiction over the subject matter of the action or proceeding is void. LSA-C.C.P. art. 3; see also Bordelon v. Dehnert, 99-2625 (La.App. 1st Cir.9/22/00), 770 So.2d 433, 435, writ denied, 00-2923 (La.3/19/01), 787 So.2d 995. It is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants. McGehee v. City/Parish of East Baton Rouge, 00-1058 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260.

As previously noted, The Family Court correctly stated that it had subject matter jurisdiction over this matter, which, after the court’s dismissal of all claims against Saunders and Bianca, was nothing more than an action between former spouses seeking the enforcement of a judicial or contractual settlement of claims. However, this court has concluded that Kathi did state a cause of action against Saunders and Bianca and that she is the only person who could bring these claims, and therefore, has a right of action against them. Based on the supreme court’s ruling in McCann, we must conclude that The Family Court’s subject matter jurisdiction does not extend beyond ICathi’s claims against Henry concerning past-due spousal support and sanctions. By our ruling that the exceptions of no cause and no right of action should not have been sustained, this court’s judgment will divest The Family Court of its exclusive but limited subject matter jurisdiction over Kathi’s claims against Henry, Saunders, and Bianca concerning the computation of her portion of the settlement proceeds, requiring that portion of this lawsuit to be transferred to the Nineteenth Judicial District Court for further proceedings in accord with this judgment.

Since we have concluded that Kathi’s appeal had merit, we find no basis for an award of damages, attorney fees, and court costs for frivolous appeal, which were requested in the answer to appeal filed by Saunders and Bianca.

CONCLUSION

For the above reasons, we reverse the portion of the September 23, 2011 | ¡^judgment that sustained the exceptions raising the objections of no cause of action and no right of action, as well as that portion of the judgment denying the exception raising the objection of improper cumulation of actions. We vacate the portion of the judgment that granted the exceptions raising the objections of lack of personal jurisdiction and improper joinder of parties. We render judgment, decreeing that The Family Court is hereby divested of subject matter jurisdiction over the claims against Henry, Saunders, and Bianca regarding computation of the settlement proceeds, and remand this matter to The Family Court with orders to transfer that portion of this case to the Nineteenth Judicial District Court for further proceedings in accordance with this judgment. We dismiss the answer to the appeal, and assess all costs of the appeal to Saunders and Bianca.

REVERSED IN PART AND VACATED IN PART. JUDGMENT RENDERED IN PART AND REMANDED WITH INSTRUCTIONS. ANSWER TO THE APPEAL DISMISSED.

WELCH, J., concurs.

      . Hamilton discussed the matter with both parties and advised Henry to consult with an independent attorney before signing any documents.

      . Article 1871 states:
      Courts of record within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for; and the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The declaration shall have the force and effect of a final judgment or decree.
      Article 1872 states:
      A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

      . Article 1880 states, in pertinent part:
      When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.

      . Although Kathi’s testimony and the August 6, 2008 letter were admitted into evidence "for the sole purpose of the exception of no right of action,” her testimony and the letter had no relevance with respect to the exception of no right of action; both were clearly relevant only to the exception of no cause of action. Therefore, we have considered both in connection with the exception of no cause of action.

      . Part IV of the Supreme Court order of January 4, 2006, which repealed and reenacted paragraph (e) of this rule, states that the rule changes would become effective on April 1, 2006, and would apply prospectively only.

      . Rule 1.8(e)(3) lists certain costs that may be recoverable as litigation expenses with the client's consent, such as computerized legal research, long distance telephone costs, courier services, etc.

      . We note also that the supreme court has recognized that, regardless of the outcome of the litigation, the client remains liable for repayment of all funds provided as financial assistance. See In re Fenasci, 09-1665 (La.11/20/09), 21 So.3d 934, 940. By making deductions for loans and advances made to Henry before computing Kathi's one-third of the settlement proceeds, the attorneys effectively reduced her portion by part of those advances, for which their client remained fully liable.

      . This appeal and our judgment do not affect The Family Court’s continued subject matter jurisdiction over Kathi’s spousal support and sanctions claims against Henry.


source: Caselaw Access Project

author: PARRO, J. HUGHES, J.,

license: Public Domain

text:
    Troy FRANKLIN v. SLIDELL POLICE DEPARTMENT.
    No. 2012 CA 0539.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2012.
    Rehearing Denied Jan. 31, 2013.

      Troy R. Franklin, Slidell, LA, Plaintiff-Appellant In Proper Person.
    Donald C. Douglas, Jr., Thomas M. Ruli, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendant Appellee, City of Slidell, Slidell Police Department.
    Before PARRO, HUGHES, and WELCH, JJ.
   PARRO, J.

li>Troy R. Franklin, an employee of the Slidell Police Department, appeals a judgment dismissing his workers’ compensation claims of mental injury caused by mental stress. The City of Slidell answered the appeal, seeking reversal of the judge’s finding that Franklin’s supervisor’s death threat was an event of “sudden, unexpected, and extraordinary stress” related to his employment. For the following reasons, we affirm the judgment and dismiss the answer to the appeal.

BACKGROUND

Franklin has been employed by the Sli-dell Police Department (the Department) since 1991. On September 3, 2009, he filed a disputed claim for compensation, alleging post-traumatic stress caused by a workplace incident with his supervisor. Franklin stated in his claim that on the morning of September 5, 2008, Captain Robert Jacobs had threatened to kill him, Jacobs walked into the booking room where Franklin was typing a report and said, in front of several other employees, that he was feeling suicidal and was ready to take some other folks with him. Speaking directly to Franklin, Jacobs said he would be first on the list. Franklin alleged that as a result of that incident, he has experienced adjustment disorder, depression, anxiety, acute distress disorder, and post-traumatic stress disorder. He claimed he was denied medical benefits and workers’ compensation indemnity payments, and his request for a second opinion from a doctor of his choice was ignored.

The City of Slidell (the City) disputed the claims, noting that Jacobs and Franklin had long-standing personal and professional conflicts that had resulted in one or more verbal altercations between them prior to this incident. The City further argued that Franklin continued to work with Jacobs after this supposedly crucial incident, finally leaving voluntarily and claiming mental disability about nine months after the event.

After a trial on the merits, the workers’ compensation judge (WCJ) entered judgment, finding that Franklin had proved by clear and convincing evidence that the death threat constituted a “sudden, unexpected, and extraordinary stress” related to his |semployment. However, she found that he had not carried his burden of proving by clear and convincing evidence that any mental injury or illness he was experiencing was “a result of’ that single event, noting that, “[t]he evidence presented showed that there was continued harassment by claimant’s supervisor both on and off the job for many months thereafter which could have been the cause of the mental health condition.” Therefore, his claims were dismissed. The judgment dismissing his claims was signed on December 2, 2011. Franklin filed this pro se appeal, and the City answered the appeal, seeking reversal of the WCJ’s finding that Franklin had proved by clear and convincing evidence that the death threat constituted a “sudden, unexpected, and extraordinary stress” related to his employment.

APPLICABLE LAW

Standard of Review

In workers’ compensation cases, as in other civil cases, the manifest error or clearly wrong standard governs the appellate court’s review of facts. Bass v. National Maint. Corp., 95-0367 (La.App. 1st Cir.12/15/95), 665 So.2d 782, 783. The Louisiana Supreme Court has posited a two-part test for the appellate review of facts in order to affirm the factual findings of the trier of fact: (1) the appellate court must find from the record that there is a reasonable factual basis for the finding of the trier of fact; and (2) the appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993); Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092. If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may |4not reverse those findings, even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Smegal v. Gettys, 10-0648 (La.App. 1st Cir.10/29/10), 48 So.3d 431, 435-36; see also Guidry v. M-I Drilling Fluids Co., 01-2693 (La.App. 1st Cir.11/8/02), 835 So.2d 830, 831-32.

Mental Injury caused by Mental Stress

In order to receive workers’ compensation benefits for mental injury caused by mental stress related to his employment, a claimant must satisfy the requirements of LSA-R.S. 23:1021(8)(b) and (d), which state:

(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subpara-graph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.

Under the statute, a mental injury is com-pensable, depending upon the type of stress that triggers the injury. Partin v. Merchants & Farmers Bank, 01-1560 (La.3/11/02), 810 So.2d 1118, 1125. The nature of the stress itself is to be evaluated, rather than the stress being evaluated from the employee’s perspective. Id. The legislature intended to restrict recovery under subsection (8)(b) to those mental injuries that result from stresses which, by their nature, are sudden, unexpected, and extraordinary in the usual course of employment in that working environment. Id. The claimant cannot merely show that a mental injury is related to the general conditions of employment or to incidents which have occurred over an extended period of time. Tranchant v. Environmental Monitoring Serv., Inc., 00-1160 (La.App. 5th Cir.12/13/00), 777 So.2d 516, 519.

1 sThe mental injury must be demonstrated by clear and convincing evidence and, to be compensable, must be diagnosed by a licensed psychiatrist or psychologist according to specific enumerated criteria. Dangerfield v. Hunt Forest Products, Inc., 10-1324 (La.App. 1st Cir.3/25/11), 63 So.3d 214, 219. To prove a matter by clear and convincing evidence means a party must demonstrate that the existence of a disputed fact is highly probable, much more probable than its nonexistence. Our Lady of Lake Reg’l Med. Ctr. v. Matthews, 06-1584 (La.App. 1st Cir.9/26/07), 971 So.2d 354, 357. Our supreme court has cautioned reviewing courts to analyze claimed disabilities caused by mental conditions carefully and with utmost caution, recognizing the nebulous characteristics of mental conditions and the possibility of symptoms being easily feigned. Charles v. South Cent. Indus., 96-0883 (La.11/25/96), 683 So.2d 706, 709; Dangerfield, 63 So.3d at 219.

ANALYSIS

As a preliminary matter, the City has brought to our attention that Franklin’s appellate brief in this case fails to comply -with Rule 2-12.4 of the Uniform Rules of the Courts of Appeal, because it does not include the necessary statement of jurisdiction, does not make any argument regarding the purported issues for review, does not include any references or citations to the record, and does not cite any authorities to support the arguments made. Nevertheless, in light of Franklin’s pro se status in this appeal, this court will consider the merits of his case, despite the improper form of his appellate brief. See Putman v. Quality Distrib., Inc., 11-0306 (La.App. 1st Cir.9/30/11), 77 So.3d 318, 320.

Franklin states that he did not receive any in-patient treatment or hospitalization for his mental problems and argues that his employer disregarded the workers’ compensation laws by failing to notify him concerning denial of benefits and by denying his right to a second opinion from a physician of his choice. He also contends his employer made misrepresentations and seeks the imposition of a statutory penalty for | (¡those actions. Franklin states the WCJ erred by assuming that the continued harassment from Jacobs may have been the cause of his mental injury, rather than recognizing that this ongoing conflict simply delayed his recovery from the mental injury that he sustained when Jacobs threatened to kill him. Franklin also claims the WCJ made a factual error by stating that his claim was not filed until after Jacobs moved into the apartment complex of Franklin’s friend, Diane Mob-ley, when in fact, he filed a claim with the Department on January 16, 2009, and Jacobs did not move into that complex until May 2009. Finally, he claims the City should be held responsible for providing him with counseling, as he had requested in January 2009.

We note first that, contrary to the City’s arguments in its answer to the appeal, our review of the evidence reveals that a reasonable factual basis exists for the WCJ’s finding that Franklin proved by clear and convincing evidence that the death threat constituted a “sudden, unexpected, and extraordinary stress” related to his employment. Moreover, this finding is reasonable in light of the record reviewed in its entirety. The record shows that from the time he began his employment with the Department, Franklin was harassed by Jacobs. However, although Franklin was understandably irritated by this behavior, it did not cause him any significant or constant anxiety, and he was able to handle these situations. When Jacobs walked into the booking room and threatened to kill him, this was the first encounter that occurred before other witnesses. From this point on, Franklin was hyper-aware of Jacobs, fearing that he might actually follow through on his threat. Franklin reported the incident, and Jacobs was moved to another job in a building some distance away from the corrections facility. Yet, even though Jacobs’ job duties no longer required him to have any contact with Franklin, he continued to return to Franklin’s office at odd intervals. Franklin interpreted these unexpected visits as Jacobs’ way of showing him that, in spite of the Department’s order, Jacobs could still get to him at any time.

Every workplace has its share of employment-related stress. Yet, it is highly unusual and extraordinary for a supervisor to threaten to kill an employee. No matter 17what level of previous harassment or tension exists in the workplace, an unprovoked death threat from a supervisor could never be anticipated by an employee. Therefore, we agree with the WCJ that the death threat constituted a “sudden, unexpected, and extraordinary stress” related to Franklin’s employment, fulfilling one of the requirements of LSA-R.S. 23:1021(8)(b).

However, the WCJ determined that the record did not support, by clear and convincing evidence, the conclusion that Franklin’s mental injury was the “the result of’ that sudden, unexpected, and extraordinary stress. She stated in written reasons:

The evidence presented was not “clear and convincing” that the mental conditions complained of were a result of the September 5, 2008 threat. The evidence presented showed that there was continued harassment by claimant’s supervisor both on and off the job for many months thereafter which could have been the cause of the mental health condition. Some of the medical records referred to “job stressors.” The medical records alone did not clarify this question of “as a result of’ by “clear and convincing evidence.”
Accordingly, although the [Office of Workers’ Compensation] Court was extremely sympathetic to the evidence of harassment and the threat by Captain Jacobs, the law is extremely strict and does not allow recovery in workers’ compensation.

Based on this finding by the WCJ, the direct causation element of LSA-R.S. 23:1021(8)(b) was not met. We have reviewed the evidence to determine whether this finding is manifestly erroneous.

Franklin’s first meeting concerning the threat and his reaction to it was with an employee assistance counselor, Ann Wilder, about three months after the incident. She recommended that Franklin be evaluated by a psychiatrist and that Jacobs be kept away from him. The psychiatrist who evaluated him for the Department, Dr. Harold M. Ginzburg, agreed that Franklin and Jacobs needed to be separated at work. However, he diagnosed Franklin with a “relational problem” and suggested Franklin may be exaggerating his symptoms in order to obtain a medical retirement.

In April 2009, Franklin sought treatment from his primary care doctor, Dr. Jose LeFran. Dr. LeFran diagnosed him with post-traumatic stress disorder, recommended that he not return to work, and suggested he follow up with a psychiatrist. Franklin |8met with Dr. Julie Ceasar, a psychiatrist, in May; she diagnosed him with adjustment disorder, post-traumatic stress disorder, sleep apnea, and workplace stressors. She prescribed Depacote, but Franklin did not want to take it, because it would negatively interact with the weight-loss medicine he was taking. Therefore, Dr. Ceasar recommended he seek treatment with someone else.

Franklin began seeing various social workers and psychiatrists at Ochsner Health System and participated in regular group and individual counseling sessions. Because Jacobs continued to show up unexpectedly at his office, Franklin stopped working on June 16, 2009. He met with Dr. Larry Warner regularly during the following months. On September 21, 2009, Dr. Warner sent a letter to the Department, advising that he was treating Franklin for adjustment disorder, mixed type, with depression and anxiety, along with acute stress disorder, “both as a direct result of his current job-related stress.” He recommended that Franklin remain away from work while undergoing treatment for an undetermined time. Upon receipt of this letter, the Department put Franklin on catastrophic leave with full pay and benefits.

In early 2010, Franklin’s treating physicians released him . for administrative duties, and he asked to return to work in some capacity. He was sent to another psychiatrist, Dr. Alan James Klein, to be evaluated for his ability to return to work. In his report on August 20, 2010, Dr. Klein concluded that Franklin had “a serious psychiatric disorder, quite possibly of psychotic proportions, with evidence of paranoid thought processing that is likely alcohol induced.” He further stated that Franklin was “not fit for duty in a law enforcement agency, either as a Correctional Officer or in performing administrative duties.” Based on this report, Franklin then applied for disability retirement; the Department sent him to Dr. Lawrence D. Wade for evaluation of his disability status. Dr. Wade criticized Dr. Klein’s conclusions, diagnosed Franklin with an adjustment disorder, and found him fit for duty. The City then sent Franklin for another evaluation by Dr. Cary D. Rostow. On May 17, 2011, Dr. Rostow concluded | gthat he found no compelling evidence that would indicate that Franklin was suffering a major mental condition that would disallow his ability to work as a police officer. Finally, on July 1, 2011, Franklin returned to work as a correctional officer with the Department.

The doctors’ reports are full of references to “job-related stress,” “depression and issues on the job,” “long-standing conflicts at work,” etc. Having examined the evidence, we agree that the evidence tended to show that Franklin’s mental problems were the result of the September 5, 2008 threat. However, the evidence did not point so strongly toward that incident as the cause of his mental problems that it was highly probable that his mental injury was “the result of’ that single event. From the evidence, it appears equally likely that his mental problems pre-existed this event and were merely exacerbated by it. Therefore, the WCJ did not err in finding that the evidence did not meet the standard of being “clear and convincing” evidence that Franklin’s mental injury was caused by the death threat.

CONCLUSION

For the above reasons, we affirm the December 2, 2011 judgment. All costs of this appeal are assessed to Troy Franklin.

AFFIRMED; ANSWER TO APPEAL DISMISSED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. I would find that the claimant is entitled to benefits under the facts of this case.

      . Such a claim is commonly known as a "mental/mental” claim. Partin v. Merchants & Farmers Bank, 01-1560 (La.3/11/02), 810 So.2d 1118, 1122.

      . Franklin was represented by counsel from the period leading up to the filing of his disputed claim for compensation through the trial. His attorney withdrew from representation after the judgment was rendered.

      . This status was only available for one year. When it was discontinued, Franklin began to use up his sick leave.


text:
    STATE of Louisiana in the Interest of S.R.
    No. 2012 CJ 0812.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2012.

      David Conrad Hultquist, Covington, LA, for Appellee S.R.
    Joseph B. Harvin, Slidell, LA, for Appellant No. 1 R.T.R.
    Carole G. Gillio, Slidell, LA, for Appellant No. 2 C.M.B.
    Sandra B. Terrell, Covington, LA, for Appellee Louisiana Department of Children and Family Services.
    Before PARRO, HUGHES, and WELCH, JJ.
   PARRO, J.

12The parents of a minor child, who was adjudicated a child in need of care, appeal that portion of the judgment of the juvenile court, which found that efforts to reunify the parents and the child were not required. For the reasons that follow, we affirm the judgment of the juvenile court.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 27, 2011, R.T.R. and C.M.B. became the biological parents of their second child, S.R. On November 30, 2011, the State of Louisiana, through the Department of Children and Family Services (DCFS), obtained an oral instanter order removing S.R. from the custody of her parents and placing her in the custody of DCFS, because the mother, C.M.B., had tested positive at the time of the child’s delivery for benzodiazepines and opiates. S.R. was maintained in DCFS custody pursuant to a continued custody order signed by the juvenile court on December 27, 2011. In addition to S.R., R.T.R. and C.M.B. had another child, H.R., who was already in DCFS custody at the' time of S.R.’s birth and subsequent removal. According to the record, H.R. also had been removed from her parents’ custody pursuant to an initial valid finding that she was a drug-exposed newborn. After the parents failed to comply with the case plan established for them, a petition to terminate their parental rights as to H.R. was filed pursuant to LSA-Ch.C. arts. 1004 and 1015, and a hearing was scheduled for December 6, 2011. At this hearing,. R.T.R. and C.M.B. stipulated that all grounds for termination set forth in the petition were true and consented to judgment terminating |3their parental rights pursuant to LSA-Ch.C. art. 1025.2. The judgment, signed on December 20, 2011, further certified that H.R. was free for adoption.

Thereafter, DCFS filed a motion for a judicial determination that efforts to reunify the parents and S.R. were not required, based on the ground that the parental rights of R.T.R. and C.M.B. to S.R.’s sibling, H.R., had been terminated involuntarily. R.T.R. and C.M.B. opposed the motion on the ground that the stipulation and consent to the judgment had transformed the prior involuntary termination proceedings concerning H.R. into a voluntary termination of their parental rights. The juvenile court requested memoranda of law on the issue and took the matter under advisement. The juvenile court subsequently concluded that the parental rights of R.T.R. and C.M.B. as to H.R. had been terminated involuntarily. The juvenile court further determined that, because the parental rights of R.T.R. and C.M.B. had been so terminated, DCFS had demonstrated by clear and convincing evidence that reunification efforts were not required as to S.R., pursuant to LSA-Ch.C. art. 672.1(C)(4). Accordingly, the juvenile court ordered that the motion to dispense with reunification efforts filed by DCFS be granted. The parents have appealed.

DISCUSSION

The parents’ attorneys have filed a joint brief on appeal, stating that they believe there are no non-frivolous issues to raise on appeal and that no ruling of the juvenile court supports the appeal. Nevertheless, the brief does raise certain substantive arguments in favor of the appeal. In addition, the parents’ attorneys have filed a joint |¿motion to withdraw as attorneys of record in this matter.

The sole issue before this court, as before the juvenile court, is whether the parents’ stipulation, in accordance with LSA-Ch.C. art. 1025.2, that the facts as alleged in the petition for involuntary termination were true, converted that involuntary termination proceeding into a voluntary termination of their parental rights. Such a conversion of the proceedings would prohibit DCFS from basing its motion to dispense with reunification efforts as to S.R. on the judgment terminating their parental rights as to H.R. This issue presents a question of law. Appellate review of questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Lamz v. Wells, 05-1497 (La.App. 1st Cir.6/9/06), 938 So.2d 792, 795. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Id.

With respect to the motion to dispense with reunification efforts, before its amendment in 2012, Louisiana Children’s Code article 672.1 provided:

A. At any time in a child in need of care proceeding when a child is in the custody of the department, the department may file a motion for a judicial determination that efforts to reunify the parent and child are not required.
B. The department shall have the burden of demonstrating by clear and convincing evidence that reunification efforts are not required, considering the health and safety of the child and the child’s need for permanency.
C. Efforts to reunify the parent and child are not required if a court of competent jurisdiction has determined that:
(1) The parent has subjected the child to egregious conduct or conditions including, but not limited to, any of the grounds for certification for adoption pursuant to Article 1015.
(2) The parent has committed murder or manslaughter of another child of the parent or has aided or abetted, attempted, conspired, or solicited to commit such a murder or manslaughter.
(3) The parent has committed a felony that results in serious bodily injury to the child or another child of the parent.
(4) The parental rights of the parent to a sibling have been terminated involuntarily.
|r;D. If the court determines that reunification efforts are not required, it shall document that determination by written findings of fact. A permanency hearing, which considers in-state and out-of-state permanent placement options for the child, may be conducted immediately and shall be conducted within thirty days after the determination.

As support for its motion to dispense with reunification efforts, DCFS relied solely on the allegation that the parental rights of R.T.R. and C.M.B. to H.R., the sibling of S.R., had previously been terminated involuntarily. See LSA-Ch.C. art. 672.1(C)(4).

The Louisiana Children’s Code establishes a distinction between involuntary termination of parental rights and the voluntary relinquishment of those rights. Louisiana Children’s Code article 1004 authorizes the filing of a petition for termination of parental rights by certain parties on any ground authorized by LSA-Ch.C. art. 1015. Articles 1004 and 1015 are found in Title X of the Louisiana Children’s Code. The purpose of Title X is to protect children whose parents are unwilling or unable to provide safety and care adequate to meet their physical, emotional, and mental health needs, by providing a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption. LSA-Ch.C. art. 1001. In all proceedings, the primary concern is to secure the best interest of the child if a ground justifying termination of parental rights is proven. Id.

In contrast, Title XI of the Louisiana Children’s Code addresses the voluntary surrender of parental rights. Except as otherwise provided in Articles 1195 and 1196 of the Code, Title XI provides the exclusive means by which a parent can voluntarily relinquish his or her parental rights to a child for the ultimate purpose of adoption. LSA-Ch.C. art. 1101.

In this matter, it is undisputed that a petition was filed pursuant to Articles 1004 and 1015, seeking to involuntarily terminate the parental rights of R.T.R. and C.M.B. as |fito H.R. in accordance with these articles. Once such a petition has been filed, the parent is thereafter without authority to execute an act of surrender or otherwise to affect the custody of the child, except: (1) the parent may execute an act of surrender in favor of the department with the approval of the court; or (2) the parent may consent to a judgment terminating his parental rights as provided in Article 1025.2. LSA-Ch.C. art. 1030; see also LSA-Ch.C. art. 1025.1(B).

Articles 1030 and 1025.1 acknowledge the distinction between the two actions a parent may take to affect the custody of his or her child once a petition for termination of parental rights has been filed. In one scenario, the court may authorize a parent to execute a voluntary act of surrender in favor of the department in accordance with LSA-Ch.C. art. 1122. See LSA-Ch.C. arts. 1025.1 and 1030. Article 1122 is found in Title XI of the Louisiana Children’s Code, which, as noted previously, provides the exclusive means by which a parent can voluntarily relinquish his or her parental rights to a child for the ultimate purpose of adoption.

In this matter, however, the court did not authorize the parents to execute a voluntary act of surrender. Rather, the court authorized the parents to stipulate that all grounds alleged in the petition for involuntary termination were true and to consent to the judgment terminating their parental rights in accordance with Article 1025.2, which provides:

The parent whose rights are sought to be terminated may stipulate that the grounds alleged in the petition are true provided that all of the following occur:
(1) He personally appears before the court. A parent who resides either in another parish or in another state may personally appear before the court exercising juvenile court jurisdiction in his place of residence.
(2) The court fully informs him of his rights and the consequences of such a stipulation.
|7(3) The parent knowingly and voluntarily consents to the judgment.

As a preliminary matter, we note that Article 1025.2, like Articles 1004 and 1015, is found in Title X of the Louisiana Children’s Code, which provides a judicial process for the termination of all parental rights and responsibilities and for the certification of the child for adoption. See LSA-Ch.C. art. 1001. Clearly, therefore, Article 1025.2 does not provide a procedure by which a parent may voluntarily relinquish his or her child for the purpose of adoption within the structure established by the Louisiana Children’s Code. Rather, it is part of an involuntary procedure established to protect children whose parents are unwilling or unable to provide for their needs. See LSA-Ch.C. art. 1001; see also LSA-Ch.C. art. 1015. Because the juvenile court chose to authorize termination of the parents’ rights pursuant to Article 1025.2, rather than Article 1122, it is clear that it chose to proceed through the involuntary termination procedure available to it, rather than to allow the parents to voluntarily surrender or terminate their parental rights.

The parents further contend that, because Article 1025.2 requires parents to “knowingly and voluntarily” consent to the judgment terminating their rights, their parental rights could not have been involuntarily terminated. This argument is without merit.

Article 1025.2 is triggered by the desire of the parent to stipulate that the grounds alleged in the petition seeking to involuntarily terminate his or her parental rights are true. Prior to accepting the stipulation, the juvenile court must fully inform the parent of his or her rights and the consequences of such a stipulation, so that the parent can make a knowing and voluntary decision as to whether to consent to the judgment. If viewed in this context, the issue of whether the consent to the judgment is “voluntary” is simply whether such consent has been given freely and has not been coerced. Clearly, therefore, the nature of the proceeding, from an involuntary proceeding that seeks to terminate the parental rights of individuals who have acknowledged that they have caused some harm to their child, is not changed by this consent. Accordingly, the parental rights of R.T.R. and C.M.B. as to H.R. were | ^involuntarily terminated by judgment dated December 20, 2011, and DCFS properly relied on that judgment in its motion to dispense with reunification efforts as to S.R.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the juvenile court, which found that efforts to reunify the parents and the child were not required. All costs of this appeal are assessed to the parents, R.T.R. and C.M.B.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . The City Court of Slidell exercises original juvenile jurisdiction for its territorial jurisdiction pursuant to LSA-Ch.C. art. 302(4). This jurisdiction is concurrent with that of the district court. LSA-Ch.Ch. art. 302(4). As a court exercising juvenile jurisdiction, it has exclusive original juvenile jurisdiction, in conformity with any special rules prescribed by law, over any child alleged to be in need of care and die parents of any such child, LSA-Ch.C. art. 604.

      .The children and their parents are referred to by their initials to preserve their anonymity in this confidential proceeding. The father and mother are referred to as R.T.R. and C.M.B. respectively. The underlying proceedings in this matter and the judgment appealed to this court directly involve only the minor child, S.R.; nevertheless, earlier proceedings involving her sister, H.R., are relevant to this matter.

      . The petition to terminate parental rights as to H.R. is not in the record; therefore, the specific allegations of that petition are not known. However, the judgment terminating parental rights as to H.R. and certifying her for adoption was introduced into the record before this court.

      . In so concluding, the juvenile court adopted the memorandum of law of DCFS as its written reasons.

      . At the same hearing, the juvenile court also addressed the issue of the adjudication of S.R. as a child in need of care. The parents chose to stipulate to the allegations, without admission; therefore, the judgment also adjudicated S.R. as a child in need of care. The minute entry for the hearing also notes that the court approved the case plan from DCFS and placement in a foster home, pending approval of the maternal grandmother’s home in Mississippi, pursuant to the Interstate Compact on the Placement of Children, These parts of the court’s ruling have not been appealed,

      . The attorneys for the parents have filed this appeal in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

      . Titíe X addresses the judicial certification of children for adoption.

      . Article 1195 provides that any parent may give consent to the adoption of his child in open court. Article 1196 authorizes an alleged or adjudicated father to execute an authentic act of consent to the adoption of his child, which releases any real or potential claims to the child, and such consent shall not be evidence of a confession, admission, or acknowledgment of paternity in any proceeding.

      . At the time of the filing of the petition for termination of parental rights in this matter, LSA-Ch.C. art. 1030 provided that the parent "may consent to a judgment terminating his parental rights as provided in Article 1033.” The 1997 comments to Article 1025.2 indicate that it was a repositioning of former Article 1033, with certain modifications not relevant here. Furthermore, 2012 La. Acts, No. 730, § 1, amended Article 1030 to remove and correct the reference to Article 1033 so that Article 1030 now refers to Article 1025.2. Accordingly, it appears that the reference to Article 1033 in Article 1030 was merely a remnant of the prior law.

      . The attorneys for the parents have filed a joint motion to withdraw as attorneys of record in this matter, which we now grant.


author: WELCH, J.

text:
    Peggy S. THEODORE v. IBERVILLE PARISH SCHOOL BOARD.
    No. 2012 CA 0746.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 8, 2013.

      Peggy S. Theodore, New Roads, LA, Pro Se, Appellant, Plaintiff, Peggy S. Theodore.
    Kristine D. Smiley, Matthew W. Tier-ney, Baton Rouge, LA, for Appellees Defendants, Iberville Parish School Board and LUBA Casualty Insurance Company.
    Before PARRO, HUGHES, and WELCH, JJ.
   WELCH, J.

| ¡.The plaintiff, Peggy S. Theodore, appeals a judgment of the workers’ compensation judge (“WCJ”) that sustained a peremptory exception raising the objection of prescription filed by the defendants, Iber-ville Parish School Board, and LUBA Casualty Insurance Company and dismissed her disputed claim for compensation. We affirm in compliance with Uniform Rules— Courts of Appeal, Rule 2-16.1(B).

On August 2, 2011, Ms. Theodore filed a disputed claim for compensation alleging that on August 31, 2006, she had an accident and sustained injuries while in the course and scope of her employment with the school board. In response, the defendants filed a peremptory exception raising the objection of prescription, and alternatively, a dilatory exception raising the objection of vagueness or ambiguity of the petition. Following a hearing, the WCJ sustained the objection of prescription and dismissed Ms. Theodore’s claims. A written judgment in accordance with the WCJ’s ruling was signed on November 14, 2011, and it is from this judgment that Ms. Theodore appeals.

If the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the plaintiff to show that prescription has not tolled because of an interruption or suspension of prescription. Bracken v. Payne and Keller Co., Inc., 2006-0865 (La.App. 1st Cir.9/5/07), 970 So.2d 582, 587. At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 931. If evidence is introduced at the hearing on the peremptory exception raising the objection of prescription, the district court’s (or WCJ’s) findings of fact are reviewed under the manifest error or clearly wrong standard of review. Oil Ins. Ltd. v. Dow Chemical Co., 2007-0418 (La.App. 1st Cir.11/2/07), 977 So.2d 18, 22, writ denied, 2007-2319 (La.2/22/08), 976 So.2d 1284; see also Stobart v. State, through Dept. of Transp. and Development, 617 So.2d 880, 882-83 (La.1993).

Louisiana Revised Statutes 23:1209 addresses the prescriptive period for workers’ compensation claims. At all pertinent times herein, La. R.S. 23:1209(A) provided that claims are barred unless filed within: (1) one year from the date of the accident; (2) one year from the last compensation payment for total disability or three years from the last payment for partial disability; or (3) one year from the time the injury develops if not immediately manifested, but, in any event, no more than two years after the accident. Additionally, La. R.S. 23:1209(C) provided that a claim for medical benefits prescribes one year from the date of the accident unless payments have been agreed upon, or unless a claim is filed within one year of the accident. Where payments have been made, the claim prescribes three years from the date of the last payment of medical benefits. Hudson v. East Baton Rouge Parish School Bd., 2002-0987 (La.App. 1st Cir.3/28/03), 844 So.2d 282, 286.

As previously noted, Ms. Theodore’s disputed claim for compensation alleged an accident date of August 31, 2006. At the hearing, the defendants offered evidence establishing that the last payment of medical benefits on behalf of Ms. Theodore was made on February 21, 2007, and that its last payment of indemnity benefits to Ms. Theodore was on April 14, 2008. Ms. Theodore filed her disputed claim for compensation more than three years later on August 2, 2011, and at the hearing, Ms. Theodore offered no evidence establishing that prescription had been interrupted or suspended. Accordingly, we find no manifest error in the WCJ’s determination that Ms. Theodore’s claims were prescribed and affirm the |4November 14, 2011 judgment. All costs of this appeal are assessed to the plaintiff/appellant, Peggy S. Theodore.

AFFIRMED.

      . We recognize that La. R.S. 23:1209(A) was recently amended by 2012 La. Acts, No. 783, § 1.