text:
    In re David Jack DOWELL.
    No. 2009-B-1419.
    Supreme Court of Louisiana.
    Dec. 18, 2009.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

_[jThis disciplinary matter arises from formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, David Jack Dowell, a disbarred attorney.

FORMAL CHARGES

In 2006, this court disbarred respondent for misconduct involving misappropriation of funds belonging to his client and his law firm, misrepresentations made to his client and his law firm, neglect of a succession matter, and failure to cooperate with the ODC in its investigation. In re: Dowell, 06-1201 (La.10/6/06), 938 So.2d 994.

Thereafter, pursuant to Supreme Court Rule XIX, § 26, respondent was required to notify all clients, adverse parties, and opposing counsel of his disbarment and his disqualification to act as a lawyer after the effective date of the court’s order. Respondent failed to file the required affidavit of compliance, pursuant to Rule XIX, § 26(H), or otherwise inform the court that he had provided the required notifications. Accordingly, pursuant to Supreme Court Rule XIX, § 27, and upon the ODC’s request, the chief judge of the Twenty-Fourth Judicial District Court for the Parish of | aJefferson appointed attorney Robert Tóale to inventory respondent’s files and to take any action needed to protect the interests of respondent’s clients.

In the course of his duties, Mr. Tóale discovered that respondent continued to act as a notary and may have provided related legal advice following his disbarment. Specifically, in January 2007, respondent reviewed a living will presented to him by Debbie Desselle, Mr. Toale’s secretary. Respondent then advised Ms. Desselle how the document should be executed and notarized same. Respondent collected $5.00 from Ms. Desselle for notarizing the living will.

In May 2007, Mr. Tóale reported his findings to the ODC, which, in turn, opened the matter as a complaint against respondent. The ODC mailed notice of the complaint to respondent. However, respondent failed to respond.

DISCIPLINARY PROCEEDINGS

In February 2008, the ODC filed one count of formal charges against respondent, alleging that his conduct as set forth above violated the following provisions of the Rules of Professional Conduct: Rules 1.4 (failure to communicate with a client), 1.16(a) (a lawyer shall withdraw from the representation of a client if the representation will result in a violation of the Rules of Professional Conduct or other law), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 5.5(a)(b)(e)(3) (engaging in the unauthorized practice of law), 8.1(c) (failure to cooperate with the ODC in its investigation), 8.4(a) (violation of the Rules of Professional Conduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, |sdeceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The ODC also alleged that respondent violated La. R.S. 35:14 by acting as a notary after his disbarment.

Respondent was served with the formal charges via certified mail but failed to answer. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions. Respondent filed nothing for the hearing committee’s consideration.

Hearing Committee Report

After considering the ODC’s deemed admitted submission, the hearing committee found that respondent knowingly disregarded and disobeyed an obligation of this court by failing to issue the Rule XIX, § 26 notices; exercised notarial functions after his disbarment in violation of La. R.S. 35:14; and appears to have contempt for the court and the legal profession based upon his failure and/or refusal to respond to these proceedings. Based on these findings, the committee determined that respondent violated Rules 3.4(c) and 5.5 of the Rules of Professional Conduct. | ¿Considering this misconduct, the committee recommended that respondent be disbarred.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After review, the disciplinary board determined that the factual findings of the hearing committee are supported by the factual allegations of the formal charges and/or by the evidence submitted in support of those allegations. The board then determined that respondent violated Rules 3.4(c), 5.5(a)(b)(e)(3), 8.1(c), 8.4(a), 8.4(c), and 8.4(d) of the Rules of Professional Conduct and violated La. R.S. 35:14. The board determined respondent did not violate Rules 1.4 or 1.16(a) because Mr. Toa-le’s report indicated that respondent had no active files and, therefore, no clients to notify and no cases from which to withdraw.

The board determined that respondent intentionally violated duties owed to the public, the legal system, and the legal profession. His actions caused serious potential harm to the public and the legal system. Relying on the ABA’s Standards for Imposing Lawyer Sanctions, the board determined that the applicable baseline sanction is disbarment.

The board found the following aggravating factors to be present: prior disciplinary offenses, a dishonest or selfish motive, bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency, refusal to acknowledge the wrongful nature of the conduct, and illegal conduct. The board found no mitigating factors in the record.

| r,Considering respondent’s misconduct in light of the permanent disbarment guidelines and the prior jurisprudence of this court, the board recommended that respondent be permanently disbarred.

Although neither respondent nor the ODC filed an objection to the board’s recommendation, on October 14, 2009, this court ordered briefing addressing the issue of an appropriate sanction.

DISCUSSION

Bar disciplinary matters fall within the original jurisdiction of this court. La. Const, art. V, § 5(B). Consequently, we act as triers of fact and conduct an independent review of the record to determine whether the alleged misconduct has been proven by clear and convincing evidence. In re: Quaid, 94-1316 (La.11/30/94), 646 So.2d 343; Louisiana State Bar Ass’n v. Boutall, 597 So.2d 444 (La.1992).

In cases in which the lawyer does not answer the formal charges, the factual allegations of those charges are deemed admitted. Supreme Court Rule XIX, § 11(E)(3). Thus, the ODC bears no additional burden to prove the factual allegations contained in the formal charges after those charges have been deemed admitted. However, the language of § 11(E)(3) does not encompass legal conclusions that flow from the factual allegations. If the legal conclusion the ODC seeks to prove (i.e., a violation of a specific rule) is not readily apparent from the deemed admitted facts, additional evidence may need to be submitted in order to prove the legal conclusions that flow from the admitted factual allegations. In re: Donnan, 01-3058 (La.1/10/03), 838 So.2d 715.

The record supports a finding that following his disbarment, respondent failed to comply with the notice requirements set forth in Supreme Court Rule XIX, § 26; | sacted as a notary, in violation of La. R.S. 35:14; and failed to cooperate with the ODC in its investigation. However, for purposes of determining the appropriate sanction, the critical question is whether respondent engaged in the unauthorized practice of law.

The only evidence of unauthorized practice of law comes from Mr. Tóale, who was appointed at the ODC’s request to inventory respondent’s files pursuant to Supreme Court Rule XIX, § 27. Upon investigating respondent’s whereabouts, Mr. Tóale discovered a notary sign on the outside of the locksmith business where respondent was purportedly working. Mr. Tóale then decided to conduct a “sting operation” in which he had his assistant, Debbie Des-selle, take a living will back to the business in an attempt to determine whether respondent was practicing law or acting as a notary. Ms. Desselle provided the ODC with a statement, dated January 29, 2007, describing what occurred:

At approximately 1:20 p.m. today I walked into “The Lock Clinic” which bears a large “Notary” sign on the right side of the front door. I asked the gentlemen [sic] behind the counter if there was a notary in. His response was I am. I gave him a 2 page Living Will and asked him if he could review [it] to make sure it was legal. He reviewed the document and told me that it did not have to be notarized to be legal. I told him that I would feel more comfortable if it was notarized. He said no problem. He notarized the document and told me that all I needed to do was sign and have two people over the age of 18 sign as witnesses. I said, as long as they are not related to me right? He said, as long as it is not you and they are over 18, it can be anyone. Never did he ask my name or proof of identification before notarizing the document. He did not even ask me to sign it in front of him. He notarized it, I paid $5.00, and left.

Admittedly, respondent’s statement to Ms. Desselle “it did not have to be notarized to be legal” could be viewed as expressing a legal opinion that the living will would be enforceable in the absence of notarization, which would constitute the 17practice of law. Nonetheless, we find that any violation by respondent in this regard was de minimis, as there is certainly no indication that he was intentionally attempting to maintain an ongoing practice of law following his disbarment. Cf. In re: Jackson, 02-3062 (La.4/9/03), 843 So.2d 1079 (noting that disbarment is generally appropriate in cases involving attorneys who have “manifested a conscious intent to flout the authority of this court by practicing after being prohibited from doing so”). Therefore, the baseline sanction is in the range of a suspension. See, e.g., In re: Ellis, 99-2483 (La.9/15/99), 742 So.2d 869 (this court accepted a petition for consent discipline and imposed a ninety-day suspension upon a suspended attorney who, following his suspension from the practice of law, failed to remove “attorney at law” designations from his office and acted as a notary in drafting two acts of sale); In re: Rudman, 01-1644 (La.6/29/01), 791 So.2d 1280 (this court accepted a petition for consent discipline and imposed a suspension for one year and one day, with all but ninety days deferred, followed by one year of supervised probation with conditions, upon an attorney who neglected a legal matter, failed to communicate with a client, misplaced a client’s file, failed to cooperate with the ODC’s investigation, and acted as a notary on several occasions while he was suspended from the practice of law).

Based upon the Ellis and Rudman line of cases, a ninety-day suspension is appropriate for respondent’s notarial misconduct standing alone. For his failure to cooperate with the ODC and his failure to comply with his obligations under Rule XIX following his disbarment, we would normally impose a short suspension in the range of six months. See, e.g., In re: Augustine, 97-1570 (La.9/26/97), 707 So.2d 1 (thirty-day suspension imposed upon an attorney who knowingly failed to cooperate with the ODC in its investigation); In re: Gold, 98-2819 (La.4/30/99), 734 So.2d 1210 (public reprimand and probation imposed upon an attorney who failed to cooperate with the ODC in five investigations); and In re: Boudreau, 03-1890 (La.12/3/03), 860 So.2d 1119 (six-month suspension imposed upon an attorney who failed to | ¡¡cooperate with the ODC in its investigation of a complaint filed against him; the attorney had recently been disciplined for similar misconduct, and his continued failure to cooperate was therefore found to be “particularly egregious”). Accordingly, for all of respondent’s misconduct together, we will impose a one-year suspension from the practice of law.

DECREE

Upon review of the findings and recommendations of the hearing committee and disciplinary board, and considering the record and the brief filed by the ODC, it is ordered that David Jack Dowell, Louisiana Bar Roll number 23041, be and he hereby is suspended from the practice of law for a period of one year. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

KIMBALL, C.J., dissents and impose greater discipline.

      . Mr. Tóale subsequently reported to the ODC that respondent had no active files and no clients for whom protective actions needed to be taken.

      . Respondent informed Mr. Tóale that he did not know that he was prohibited from acting as a notary following his disbarment. When Mr. Tóale advised respondent of the prohibition set forth in La. R.S. 35:14, respondent agreed that he would not do notarial work any longer.

      . La. R.S. 35:14 provides as follows:
      Any attorney at law, or person who was an attorney at law, who is disbarred or suspended from the practice of law due to charges filed by the Committee on Professional Responsibility of the Louisiana State Bar Association or who has consented to disbarment shall not be qualified or eligible nor shall he exercise any functions as a notary public in any parish of the state of Louisiana as long as he remains disbarred or suspended from the practice of law in Louisiana. Provided, however, that nothing in this Section shall apply to any action taken against an attorney at law for failure to pay annual dues.

      . Because respondent is disbarred, the effect of our judgment will be to extend by one year the minimum period which must elapse before he may seek readmission to the practice of law. See In re: White, 00-2732 (La.4/25/01), 791 So.2d 602.


source: Caselaw Access Project

author: PAINTER, Judge. PAINTER, Judge.

license: Public Domain

text:
    Troy MORGAN v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 08-750.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 10, 2008.
    Rehearing Granted Feb. 4, 2009.
    Opinion on Rehearing Nov. 25, 2009.

      C. Kerry Anderson, Anderson & Anderson, DeRidder, LA, for Plaintiff-Appellant, Troy Morgan.
    George 0. Luce, Special Assistant Attorney General, Oats & Hudson, Baton Rouge, LA, for Defendant-Appellee, State of Louisiana through the Department of Public Safety and Corrections, et al.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiff, Troy Morgan, appeals the dismissal of suit against Defendants, the State of Louisiana through the Department of Public Safety and Corrections, on the ground of abandonment. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 2000, Troy Morgan, an inmate at Phelps Correctional Center in DeQuiney, Louisiana, filed suit against the State of Louisiana through the Department of Public Safety and Corrections, Phelps Corrections Center, Warden Jim Rogers, Dr. Clarence Snyder, and Richard Stalder as the Secretary of the Department of Public Safety and Corrections in the Nineteenth Judicial District Court. The suit alleged that he broke his arm in a fall from a stepladder while on work detail on December 7, 1999, and was treated at Moss Regional Hospital but that Defendants failed to provide him with his prescribed pain medication and did not allow him to return to the hospital for necessary treatment. On March 17, 2000, Rogers, Snyder, and Stalder filed an answer and request for written notice. On April 3, 2000, Morgan filed a motion for leave to file an amending and supplemental petition. The order granting leave was signed April 4, 2000, and the amending and supplemental petition was filed. On March 31, 2003, Morgan filed a second amending and supplemental petition requesting that his suit be transferred from the Nineteenth Judicial District Court to the Thirty-Sixth Judicial Court under La.R.S. 15:1181, et seq., the Prison Litigation Reform Act of 1997. On November 10, 2003, Morgan’s request for transfer was granted by the Nineteenth Judicial District Court. On December 18, 2003, a judgment issued ordering the clerk of the Nineteenth Judicial Court to transfer the matter to the Thirty-Sixth Judicial District Court. Nothing else appears of record until September 21, 2006, when Morgan sent a letter dated August 12, 2006,12to the clerk of the Thirty-Sixth Judicial District Court. This letter indicated that he was attempting to retain new counsel since his previous counsel had informed him that he would no longer be able to represent him. Morgan’s letter also attached a letter written July 31, 2006, by Morgan’s attorney, indicating that his office had been destroyed by Hurricane Katrina and that because of the resulting financial difficulties, he could no longer represent Morgan. Morgan obtained new counsel, and, on July 17, 2007, his new counsel formally enrolled. On October 16, 2007, his new counsel propounded interrogatories and a request for production of documents to Snyder. On November 13, 2007, Defendants filed an ex parte motion for dismissal on the ground of abandonment. Judgment dismissing Morgan’s suit was signed November 13, 2007. Morgan filed a motion to set aside the dismissal on December 20, 2007. Judgment denying that motion was signed April 2, 2008. This appeal followed.

DISCUSSION

Louisiana Code of Civil Procedure Article 561 provides, in pertinent part, as follows:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

|RThe amendment that provided those portions of Article 561 concerning Hurricanes Katrina and Rita became effective July 9, 2007. The issue in this case is whether this amendment applies to this case. Morgan contends that since Article 561 is procedural in nature, it should be applied retroactively. Defendants contend that the 2007 amendment cannot revive Morgan’s claim because it was already abandoned before the legislature acted.

In Chance v. American Honda Motor Co., Inc., 93-2582, pp. 2-3 (La.4/11/94), 635 So.2d 177, 178 (footnote omitted) (first alteration in original), the supreme court discussed the issue of revival of a prescribed claim by the legislature as follows:

Although prescriptive statutes are generally procedural in nature, the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiffs claim. La.Code Civ.P. arts. 927 & 934. Because the defendant acquires the right to plead the exception of prescription, a change in that right constitutes a substantive change in the law as applied to the defendant. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992) (“Substantive laws either establish new rules, rights, and duties or change existing ones.”); Thomassie v. Savoie, 581 So.2d 1031, 1034 (La.App. 1st Cir.1991) (“[I]f a statute which is remedial or procedural also has the effect of making a change in the substantive law, it must be construed to operate prospectively only.”). Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. Guided by the principles established in [La.Civ.Code] article 6, we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an “extreme exercise of legislative power.”

It is important to note that the abandonment provision is self-executing such that it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order. La.Code Civ.P. art. 561; Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779. Furthermore, abandonment is a species of prescription. Johnson v. Calcasieu Parish Sheriffs Dept., 06-1179 (La.App. 3 Cir. 2/7/07), 951 So.2d 496. The trial court expressly found that this suit abandoned before the effective date of the amendment to Article 561. We agree and find that the 2007 amendment to Article 561 is not applicable to Morgan’s case. At the earliest, Morgan’s case abandoned by operation of law on March 31, 2006. The trial court indicated that the matter may have abandoned, at the latest, on December 18, 2006, three years after the transfer order was signed. In either case, the matter had abandoned before the amendment was effective. We note that neither the letter from Morgan nor the motion and order to enroll filed by his new counsel constituted steps in the prosecution. See Stemley v. Foti, 40,379 (La.App. 2 Cir. 10/26/05), 914 So.2d 642, writ denied, 06-224 (La.4/24/06), 926 So.2d 551, and Bertrand v. State ex rel. Dept. of Transp. and Dev., 02-1163 (LaApp. 3 Cir. 2/5/03), 838 So.2d 136, writ denied, 03-634 (La.5/2/03), 842 So.2d 1105. The amendment expressly states that it applies to matters which have not “previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph.” “Only those prescriptive periods that were running could be affected by the change.” Lambert v. Roussel, 07-1109, p. 9 (La.App. 1 Cir. 5/2/08), 991 So.2d 8, 13, writ denied,, 08-1193 (La.9/19/08), 992 So.2d 933 . The amendment cannot serve to revive an already prescribed claim.

DECREE

For the foregoing reasons, the judgment dismissing Plaintiffs suit is affirmed. All costs of this appeal are assessed against Plaintiff-Appellant, Troy Morgan.

AFFIRMED.

ON REHEARING

PAINTER, Judge.

| T Plaintiff, Troy Morgan, appealed the dismissal of his suit against Defendants, the State of Louisiana through the Department of Public Safety and Corrections, on the ground of abandonment. We originally affirmed the dismissal; however, we granted Morgan’s application for rehearing based on this court’s opinion in Duplechian v. SBA Network Sendees, Inc., an unpublished opinion bearing docket number 07-1554 (La.App. 3 Cir. 5/7/08). Most recently, this court issued its en banc opinion in Henry v. SBA Shipyard, Inc., 09-426 (La.App. 3 Cir. 11/10/09), 24 So.3d 956, 2009 WL 3748555, and in accordance with that opinion, we affirm our original decision and affirm the trial court’s dismissal of Morgan’s suit.

FACTUAL AND PROCEDURAL BACKGROUND

In our prior opinion in this matter, Morgan v. La. Dept. of Public Safety and Corrections, 08-750, p. 1 (La.App. 3 Cir. 12/10/08), 24 So.3d 208, 209-10, 2008 WL 5159177, we set forth the statement of facts as follows:

On February 16, 2000, Troy Morgan, an inmate at Phelps Correctional Center in DeQuincy, Louisiana, filed suit against the State of Louisiana through the Department of Public Safety and Corrections, Phelps Corrections Center, Warden Jim Rogers, Dr. Clarence Snyder, and Richard Stalder as the Secretary of the Department of Public Safety and Corrections in the Nineteenth Judicial District Court. The suit alleged that he broke his arm in a fall from a stepladder while on work detail on December 7, 1999, and was treated at Moss Regional Hospital but that Defendants failed to provide him with his prescribed pain medication and did not allow him to return to the hospital for necessary treatment. On March 17, 2000, Rogers, Snyder, and Stalder filed an answer and request for written notice. On April 3, 2000, Morgan filed a motion for leave to file an amending and supplemental petition. The order granting leave was signed April 4, 2000, and the amending and supplemental petition was filed. On March 31, 2003, Morgan filed a second amending and supplemental petition requesting that his suit be transferred from the Nineteenth Judicial District Court to the Thirty-Sixth Judicial Court under La. R.S. 15:1181, et seq., the Prison Litigation Reform Act of 1997. On November 10, 2003, Morgan’s request for transfer was granted by the Nineteenth Judicial District Court. On December 18, 2003, a judgment issued ordering the clerk of the Nineteenth Judicial Court to transfer the matter to the Thirty-Sixth | {Judicial District Court. Nothing else appears of record until September 21, 2006, when Morgan sent a letter dated August 12, 2006, to the clerk of the Thirty-Sixth Judicial District Court. This letter indicated that he was attempting to retain new counsel since his previous counsel had informed him that he would no longer be able to represent him. Morgan’s letter also attached a letter written July 31, 2006, by Morgan’s attorney, indicating that his office had been destroyed by Hurricane Katrina and that because of the resulting financial difficulties, he could no longer represent Morgan. Morgan obtained new counsel, and, on July 17, 2007, his new counsel formally enrolled. On October 16, 2007, his new counsel propounded interrogatories and a request for production of documents to Snyder. On November 13, 2007, Defendants filed an ex parte motion for dismissal on the ground of abandonment. Judgment dismissing Morgan’s suit was signed November 13, 2007. Morgan filed a motion to set aside the dismissal on December 20, 2007. Judgment denying that motion was signed April 2, 2008. This appeal followed.

We affirmed the trial court’s dismissal of Morgan’s suit, and Morgan filed an application for rehearing with this court, which we granted. During the pendency of this matter, on July 9, 2009, the Louisiana Supreme Court remanded the Henry case to this court with instructions to “address the apparent internal conflict in the circuit concerning whether Act 361 of 2007, which amended La.Code Civ.P. art. 561, can be applied retroactively.” Now, based on the majority opinion from this court in Henry, we affirm our original decision in this matter and dismiss Morgan’s claim as abandoned.

DISCUSSION

Louisiana Code of Civil Procedure Article 561 provides, in pertinent part, as follows:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years....
(2) If a party whose action is declared or claimed to be abandoned proves that the failure to take a step in the prosecution or defense in the trial court or the failure to take any step in the prosecution or disposition of an appeal was caused by or was a direct result of Hurricane Katrina or Rita, an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subpara-graph (1) of this Paragraph, |sis abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years....
(6) The provisions of Subparagraph (2) of this Paragraph shall become null and void on August 26, 2010.

The amendment that provided those portions of Article 561 concerning Hurricanes Katrina and Rita became effective July 9, 2007. The issue before us is whether this amendment applies to this case. Morgan contends that since Article 561 is procedural in nature, it should be applied retroactively. Defendants contend that the 2007 amendment cannot revive Morgan’s claim because it was already abandoned before the legislature acted.

It is important to note that the abandonment provision is self-executing such that it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order. La.Code Civ.P. art. 561; Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779. Furthermore, abandonment is a species of prescription. Johnson v. Calcasieu Parish Sheriff’s Dept., 06-1179 (La.App. 3 Cir. 2/7/07), 951 So.2d 496. The trial court expressly found that this suit abandoned before the effective date of the amendment to Article 561. Our original opinion in this case agreed with the trial court and found that the 2007 amendment to Article 561 was not applicable to Morgan’s case. We specifically held that the extended abandonment period could only apply to those cases which had not abandoned before the amendment to Article 561 took effect on July 9, 2007. However, in Duplechian v. SBA Network Services, Inc., an unpublished opinion bearing docket number 07-1554, pp. 3-4 (LaApp. 3 Cir. 5/7/08), we stated: “if La.Code Civ.P. art. 561 is retroactive and Duplechian can prove that Hurricane Rita directly caused her failure to take a step in the prosecution of her case, the trial |4court incorrectly applied the three year abandonment period in Paragraph A(2).” We also noted that:

[t]he test of amended La.Code Civ.P. art. 561 Paragraph A(2) now states that the five-year abandonment period applies to ‘an action originally initiated by the filing of a pleading prior to August 26, 2005, which has not previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph ....’”

Id. at p. 4.

This court’s holding in Duplechian was that “Article 561 is clearly procedural and, thus, would apply retroactively as dictated by La.Civ.Code art. 6.” This split in the circuit has now been corrected by the majority opinion of this court sitting en banc in Henry:

As such, there is merit to Pulmosan’s argument that there are constitutional problems with retroactively taking away a defendant’s right to have a case dismissed for abandonment once he has acquired that right. Also, the statute does not expressly state any legislative intent to revive claims which were abandoned between August 26, 2005, and the amendment’s 2007 effective date.

Henry, — So.3d at -.

Therefore, we now reiterate from our original opinion in this case:

The amendment expressly states that it applies to matters which have not “previously been abandoned in accordance with the provisions of Subparagraph (1) of this Paragraph.” “Only those prescriptive periods that were running could be affected by the change.” Lambert v. Roussel, 07-1109, p. 9 (La.App. 1 Cir. 5/2/08), 991 So.2d 8, 13, writ denied, 08-1193 (La.9/19/08), 992 So.2d 933 . The amendment cannot serve to revive an already prescribed claim.

Morgan, 24 So.3d at 211.

DECREE

For the foregoing reasons, the trial court’s judgment dismissing Morgan’s suit as abandoned is affirmed. All costs of this appeal are assessed against Plaintiff-jAp-p ell ant, 5 Troy Morgan. We, further, decline to award attorney’s fees to Morgan as prayed for on rehearing.

AFFIRMED.

      . 992 So.2d 933.

      . 992 So.2d 933.


author: PETTIGREW, J.

text:
    Toni GONZALES v. John KISSNER, Elena Kissner, and Safeco Insurance Company of America.
    No. 2008 CA 2154.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Brian J. Prendergast, Wendy L. Edwards, Baton Rouge, LA, for Plaintiff-Appellee, Toni Gonzales.
    David L. Dawson, Jr., Baton Rouge, LA, for Defendants-Appellants, John Kissner and Elena Kissner.
    James P. Dore, R. Benn Vincent, Jr., Baton Rouge, LA, for Intervenor-Appel-lee, Iberville Parish Council.
    Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

|2This is an action for personal injuries sustained by an animal control officer who was mauled by defendants’ dog while investigating a complaint of an attack by the dog the day before. Following the trial court’s grant of plaintiffs motion for a partial summary judgment as to the liability of the dog’s owners, the dog’s owners have appealed. For the reasons that follow, we reverse in part, affirm in part, and remand.

FACTS

On or about March 20, 2006, plaintiff, Iberville Parish Animal Control Officer Toni Gonzales, was attacked repeatedly by a 100-pound German shepard owned by defendants, John Q. Kissner, Jr. and his wife, Elena Kissner, at the Kissner residence, located at 7095 Bayou Paul Road in St. Gabriel, Louisiana. Ms. Gonzales had gone to the Kissner residence on the aforementioned date in the course of her employment to investigate a complaint that a 13-year-old boy had been bitten by the Kissners’ dog the day before.

Upon Ms. Gonzales’ arrival at the Kiss-ner home, Elena Kissner came outside via the back door, leaving the dog in the kitchen. As the two women began talking alongside Ms. Gonzales’ truck, the dog managed to escape from the house after apparently forcing open the back door. The dog lunged at Ms. Gonzales and began to maul her about the head, face, and neck. Grabbing the dog’s collar, Elena Kissner was able to physically pull the dog off of Ms. Gonzales. The dog thereafter forcibly extricated itself from its collar and began to chase Ms. Gonzales around her truck, attacking her from behind and knocking her to the ground. Only by thrusting her elbow into the dog’s mouth was Ms. Gonzales able to ward off further attacks until Elena Kissner could restrain the dog. After the arrival of emergency response personnel, the dog was put down by Mr. Kissner.

PACTION OF THE TRIAL COURT

On September 8, 2006, Ms. Gonzales instituted the instant suit for damages and named John and Elena Kissner together with their homeowner’s insurer, Safeco Insurance Company of America (“Safeco”), as defendants therein. The Iberville Parish Council (“Parish”) thereafter intervened in this action, seeking to recover wages, disability benefits, medical benefits, and mileage expenses that it paid to or on behalf of Ms. Gonzales. On July 19, 2007, Ms. Gonzales filed a First Amended and Supplemental Petition and named John Kissner’s mother, Catherine Kissner (“Mrs. Kissner”), as an additional defendant. Ms. Gonzales alleged Mrs. Kissner was the owner of the home occupied by John and Elena Kissner where the attacks occurred.

On October 29, 2007, Ms. Gonzales filed a Motion for Partial Summary Judgment against all defendants asserting there existed no genuine issues of material fact regarding the factual circumstances of the dog attack, and therefore she is entitled to summary judgment finding defendants strictly liable for the injuries she sustained as a result of said incident. After several continuances, Ms. Gonzales and defendants agreed on April 25, 2008, to dispense with oral argument and submit Ms. Gonzales’ motion for partial summary judgment solely on memoranda thereby allowing the court to take the matter under immediate advisement.

The trial court, several days later, on April 29, 2008, rendered and signed a judgment, or what it captioned a “Ruling of the Court,” granting Ms. Gonzales’ motion for a partial summary judgment “for the reasons stated in the Plaintiffs memorandum, adopted by this Court as its own.” The trial court further certified its “judgment” as final. Thereafter, on May 13, 2008, defendants, John Kissner, Elena Kissner, and Mrs. Kissner, filed a motion for new trial asserting primarily that Mrs. Kissner, as the owner of the property, was not the owner of the dog, nor did she have knowledge of the dog’s propensity for aggression or have any control over the dog. Following a hearing, the trial |4court signed a judgment on August 5, 2008, recalling and setting aside its earlier partial summary judgment against Mrs. Kissner but denying reconsideration of the partial summary judgment previously rendered against John and Elena Kissner. From this judgment, John and Elena Kissner appealed to this court.

This court, ex proprio motu, examined the record in this matter and found the trial court’s “April 29, 2008 judgment lack[ed] sufficient decretal language specifying what relief has been awarded in the granting of the partial summary judgment.” Accordingly, this court, on November 13, 2008, issued a rule to show cause by briefs as to why the appeal should not be dismissed.

In response to the rule to show cause issued by the appellate court, the trial court thereafter signed a new judgment on February 19, 2009, which read in part, “IT IS ORDERED, ADJUDGED AND DECREED that the Partial Summary Judgment is granted in favor plaintiff [sic], Toni Gonzales, and against John Q. Kissner, Elena Kissner, Cathrine [sic] Kissner, on the question of liability.” Accordingly, and in light of the corrected judgment, a panel of this court, on March 23, 2009, maintained the appeal in this matter.

ERRORS ASSIGNED ON APPEAL

In connection with their appeal in this matter, John and Elena Kissner urge the trial court erred with respect to the following:

1. [I]n determining there was no material issue of fact in granting a partial summary judgment;
2. [I]n failing to apply the professional rescuers’ doctrine; and
3. [I]n failing to take into consideration the assumption of risk and comparative negligence.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op, Inc., 2001-2956, p. 3 (La.App. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. La.Code Civ. P. Art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, |sand inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. Code Civ. P. art. 966(C)(2); Robles v. Exxonmobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Mortal New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

ANALYSIS AND LAW

In the instant case, defendants, John and Elena Kissner, raise several issues that they claim preclude the granting of a motion for summary judgment. The first error assigned by John and Elena Kissner is that the trial court erred in ruling there existed no issue of material fact that would prevent the grant of summary judgment.

| fiThe law governing claims for damages caused by animals is La. Civ.Code art. 2321, which provides:

Art. 2321. Damage caused by animals
The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The foregoing article was revised by the legislature in 1996. The Louisiana Supreme Court, in discussing the effect of the legislative revisions, noted in Pepper v. Triplet, 03-0619, p. 1 (La.1/21/04), 864 So.2d 181, 184:

While the legislature may have generally eliminated strict liability for owners of animals, it specifically continued strict liability for owners of dogs. In this process however, the legislature limited the scope of that strict liability to situations in which (1) the dog owner could have prevented the injury and (2) the injury did not result from the provocation of the dog by the injured party.

In its opinion in Pepper, our supreme court further stated, “We hold that, to establish that the owner could have prevented the injuries under Article 2321, the plaintiff must show the dog presented an unreasonable risk of harm.” Pepper, 03-0619, p. 2, 864 So.2d at 184. The criterion for determining whether a defendant has created or maintained an unreasonable risk of harm is a balancing of claims and interest, a weighing of the risk and gravity of harm, and a consideration of individual and societal rights and obligations. Thibodeaux v. Krouse, 07-2557, p. 4 (La.App. 1 Cir. 6/6/08), 991 So.2d 1126, 1129, citing Pepper, 08-0619 at 21, 864 So.2d at 195-196. In deciding whether a risk is unreasonable, a judge is called upon to decide questions of social utility that require him to consider the particular case in terms of moral, social and economic considerations, in the same way that the legislator finds the standards or patterns of utility and morals in the life of the community. Id.

|7This case presents no genuine issue of material facts as to how the accident occurred. It is undisputed that Ms. Gonzales, an animal control officer, arrived at the home of John and Elena Kissner to investigate a complaint that a child had been bitten by the Kissners’ dog the day before. Upon learning of Ms. Gonzales’ arrival at her home, Elena Kissner left the dog in the kitchen, and walked outside, closing the door behind her. As the two women spoke outside in the driveway, the dog escaped from the confines of the house and, without provocation or warning, mauled Ms. Gonzales.

It is evident from the record that Ms. Gonzales did nothing to provoke an attack by the dog. Given the fact that John and Elena Kissner had knowledge of not only the dog’s recent propensity for aggression, but also that it had inexplicably escaped from their home on two prior occasions, the attack on Ms. Gonzales could have easily been prevented had Elena Kissner simply locked the door to the house behind her. On this reasonable minds could not conclude otherwise. This assignment is without merit.

Professional Rescuer’s Doctrine

The second error assigned by defendants, John and Elena Kissner, is that in holding them liable to Ms. Gonzales for the attacks made by their dog, the trial court failed to apply the professional rescuer’s doctrine.

The Professional Rescuer’s Doctrine, sometimes referred to as the “fireman’s rule,” is a jurisprudential rule that essentially states, a professional rescuer injured in the performance of his professional duties “assumes the risk” of such an injury and is not entitled to damages. See, Mullins v. State Farm Fire and Casualty Co., 96-0629, p. 3 (La.App. 1 Cir. 6/27/97), 697 So.2d 750, 752. However, firemen, police officers, and others who, in their professions of protecting life and property, necessarily endanger their safety; however, do not assume the risk of all injury without recourse against others. Id. citing Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133, 141 (1971)(superseded by statute). Louisiana courts have recognized two exceptions.

A professional rescuer may recover for an injury caused by a risk that is independent of the emergency or problem he has assumed the duty to remedy. Chinigo v. Geismar Marine, Inc., 512 So.2d 487, 490 (La.App. 1 Cir.), writs denied, 514 So.2d 457 (La.1987). A risk is independent of the task, if the risk-generating object could pose the risk to the rescuer in the absence of the emergency or specific problem undertaken. See, Worley v. Winston, 550 So.2d 694, 697 (La.App. 2 Cir.), writ denied, 551 So.2d 1342 (La.1989).

On the other hand, a “dependent” risk arises from the very emergency that the rescuer was hired to remedy. Henry v. Barlow, 04-1657, p. 8 (La.App. 3 Cir. 5/4/05), 901 So.2d 1207, 1213. The assumption rationale bars recovery from most dependent risks except when: (1) the dependent risks encountered by the professional rescuer are so extraordinary that it cannot be said that the parties intended the rescuers to assume them; or (2) the conduct of the defendant may be so blameworthy that tort recovery should be imposed for the purposes of punishment or deterrence. Gann v. Matthews, 03-0640, p. 6 (La.App. 1 Cir. 2/23/04), 873 So.2d 701, 705, citing Mullins, 96-0629 pp. 3-4, 697 So.2d at 752-53.

Assuming for purposes of argument that the duties of an animal control officer, such as the plaintiff in the present case, fall within the ambit of a professional rescuer, it could be further argued animal control officers are hired to protect the public from harm occasioned by animals. As part of their duties, animal control officers are expected to investigate complaints by the public and also take control of animals causing injuries to people. Animal control officers could reasonably expect in the course of apprehending a dangerous animal that the animal would respond aggressively. Accordingly, the risk of being bitten while apprehending a dangerous animal is a dependent risk, arising out of the specific problem which the animal control officer was hired to remedy. Therefore, in order for an animal control officer to recover for injuries received while attempting to apprehend a dangerous animal, the risks created by the conduct of the animal or its owner, who is vicariously hable, must either be so extraordinary that it cannot be said that the parties intended the animal control officer to assume such risks, or so blameworthy 19that tort recovery should be imposed for purposes of punishment or deterrence. See, Gann, 03-0640, at 6-7, 873 So.2d at 705-06, citing Worley v. Winston, 550 So.2d 694 (La.App. 2 Cir.), writ denied, 551 So.2d 1342 (La.1989).

In the case presently before us, Elena Kissner testified in her deposition that upon learning of Ms. Gonzales’ arrival at her home, she left the dog in the kitchen and walked outside, closing the door behind her. Elena Kissner also conceded that she and her husband never locked their home even though the dog had inexplicably escaped on two prior occasions. As the two women spoke outside in the driveway, the dog escaped from the confines of the house and, without provocation or warning, mauled Ms. Gonzales. In view of the fact the dog had similarly attacked a neighbor’s child the day before, it is our belief Ms. Gonzales had every reason to expect the dog to be restrained. It is the opinion of this court that Elena Kissner’s failure to properly confine or restrain their dog and/or lock their home despite knowledge of the dog’s dangerous propensities, coupled with their knowledge that the dog had escaped from their house on two previous occasions, constitutes conduct so blameworthy that tort recovery should be allowed under these facts as a punishment or deterrence. Therefore, we hold that under the facts presented in this case, Ms. Gonzales’ recovery for injuries sustained in this manner is not barred by the Professional Rescuer’s Doctrine. This assignment is also without merit.

The third and final assignment raised by John and Elena Kissner is that the trial court erred in failing to apply the doctrines of assumption of risk and comparative negligence. Based upon our review of the record in this matter, and our holdings above, we can find no basis for application of said doctrines and, accordingly, decline to do so. This assignment is similarly without merit.

CONCLUSION

Thus, based upon the record before this court, we find no error on the part of the trial court that would warrant reversal of Ms. Gonzales’ motion for a partial summary judgment as to the liability of the dog’s owners, John and Elena Kissner. We note however that the trial court’s revised judgment of February 19, 2009, mistakenly granted a partial summary judgment as to the concurrent liability of the property owner defendant | K)Catherine Kissner. Accordingly, the trial court’s judgment of February 19, 2009, is reversed as to the liability of defendant Catherine Kissner, and affirmed in all other respects. This matter is hereafter remanded to the trial court for further proceedings consistent with this opinion. All costs associated with this appeal shall be assessed against defendants John and Elena Kissner.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . The record reflects that the residence occupied by defendants John and Elena Kissner at the time of this incident was owned by John Kissner's mother, defendant Catherine Kiss-ner, and in lieu of rent, John and Elena Kiss-ner were attempting to make the monthly mortgage payments.

      . Ms. Gonzales and the Parish later dismissed their claims against Safeco, without prejudice and at their respective costs, on August 8, 2007.

      . It should be noted that this court does not specifically hold that the Professional Rescuer's Doctrine can be extended to cover animal control officers; this court is merely addressing the issues raised by the appellants in this case.


author: GAIDRY, J. McCLENDON, J.,

text:
    Warren Christopher WILLIAMS v. DUTCHTOWN PHARMACY, L.L.C.
    No. 2008 CA 2559.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Keith P. Richards, Baton Rouge, Louisiana, for Plaintiff/Appellee, Warren Christopher Williams.
    Amy Lawler Gonzales, Hammond, Louisiana, for Defendant/Appellant, Dutchtown Pharmacy, L.L.C.
    Before: DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

| ?This appeal involves an action by a pharmacist against a pharmacy business for penalty wages owed to him after ending his tenure working at the pharmacy. The pharmacy filed a peremptory exception of no right of action on the grounds that the pharmacist was never paid directly by the pharmacy but instead by a close corporation formed by the pharmacist under his own name. After deferring the determination of the exception to the merits, the trial court determined that such a payment arrangement did not allow the pharmacy to escape its obligation to pay the pharmacist for the services he provided. For the following reasons, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff, Warren Christopher Williams (Williams), is a licensed pharmacist. On December 15, 2005, Williams began providing services for the defendant, Dutchtown Pharmacy, L.L.C. (Dutchtown). Before commencing work for Dutchtown, the parties agreed that Williams’ compensation would include: (1) a salary of $10,000.00 per month; (2) an amount of money sufficient to reimburse him for his health insurance policy premium (plus a payment of $5,000.00 for the deductible); and (3) a monthly bonus equal to 1% of the gross sales revenue for the pharmacy, calculated every three months (commencing once Dutchtown’s named location was open and operating sufficiently).

Two weeks after beginning work for Dutchtown, Williams formed Chris Williams, Inc. Williams had been advised by the owners of Dutchtown that he could save taxes by incorporating. As such, Dutchtown paid all compensation for pharmacist services (including salary and a health insurance premium reimbursement) to Chris Williams Inc., which in turn | spaid the wages to Williams personally. Chris Williams, Inc. issued the Internal Revenue Service W-2 forms to Williams for work performed at Dutchtown.

While Williams worked at Dutchtown’s pharmacy he was able to suggest his own work schedule, subject to the approval of the owners of Dutchtown. All of the deposits made into the corporate account of Chris Williams, Inc. were payments received from Dutchtown for the pharmacist services provided. Additionally, Williams never earned any income working elsewhere once Dutchtown’s pharmacy opened.

In October 2007, one of the numerous owners of Dutchtown, Mike Tinnerello, told Williams that he would be entitled to three weeks of paid vacation in 2008. On January 29, 2008, Williams stopped providing services for the pharmacy after refusing to sign an employment contract with Dutchtown. Following the termination of Williams’s work for Dutchtown, his attorney sent a letter to Dutchtown requesting four weeks (one week for the year 2007, plus three weeks for the year 2008) of vacation pay and the value of Williams’s bonus from January 1, 2008 to January 29, 2008.

Williams instituted this action for unpaid wages under La. R.S. 28:631 and 23:632 on April 29, 2008. Dutchtown filed a peremptory | .¡exception of no right of action on May 15, 2008 on the basis that Williams was not a proper party to bring suit under the statutes. The exception was referred to the merits. After a status conference on the matter, the district judge issued a bench trial order.

Trial was held on July 23, 2008. The trial court signed its judgment and issued written reasons for judgment on September 11, 2008, awarding Williams three weeks’ vacation pay and bonus pay in the amount of $3,500.00, finding that Williams was an employee of Dutchtown for purposes of La. R.S. 23:631 and 23:632. Williams was also awarded attorney’s fees. Dutchtown now appeals.

ASSIGNMENTS OF ERROR

Dutchtown has assigned the following errors on the part of the trial court:

1. The [tjrial [cjourt erred by overruling Dutchtown’s exception of no right of action since Williams did not receive his wages from Dutchtown.
2. The [tjrial [cjourt erred by determining that Williams had accrued and was entitled to payment for three weeks of vacation in 2008.
3. The [tjrial [cjourt erred by determining that Williams was entitled to a bonus in 2008.

Standard of Review

The determination of whether the plaintiff had a right of action raises a mixed question of law and fact. The manifest error standard of review applies to all factual findings, including a finding relating to the factual sufficiency of evidence to warrant application of a legal theory or doctrine. Barnett v. Saizon, 08-0336, p. 6 (La.App. 1st Cir.9/23/08), 994 So.2d 668, | s672. This standard of review also applies to mixed questions of law and fact, such as the issue of whether the facts found by the trier of fact trigger application of a particular legal standard. See Reed v. Wal-Mart Stores, Inc., 97-1174, pp. 3-5 (La.3/4/98), 708 So.2d 362, 364-5 and 1 Frank L. Maraist & Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure § 14.14 n. 13 (1999).

In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis for the finding does not exist in the record; and (2) the appellate court must also determine that the record establishes that this finding is clearly wrong (manifestly erroneous). Hornsby v. Bayou Jack Logging, 04-1297, p. 8 (La.5/6/05), 902 So.2d 361, 366.

ANALYSIS

Exception of No Right of Action

Neither party disputes that Williams provided professional pharmacist services for Dutchtown. The only issue is whether the fact that Williams received his paychecks and employee tax’ forms from Chris Williams, Inc. precludes him from being considered an employee for the purposes of asserting claims under La. R.S. 23:631, et seq. Thus, we must determine whether Williams was in fact an employee of Dutchtown.

Dutchtown insists that it was not the employer of Williams because the pharmacy never directly paid Williams a salary or issued employee tax forms to him. According to Dutchtown, La. R.S. 23:631 and 632 do not even contemplate this indirect type of action brought against Dutchtown, but rather contemplate an action brought by a laborer against the party who actually paid his wages. We do not agree with this proposition.

| (When determining whether an employer-employee relationship exists between two parties, the court looks to the “freedom of action and choice with respect to the undertaking in question” that the supposed employee has been given by the employer. Hickman v. Southern Pac. Transp. Co., 262 La. 102, 117, 262 So.2d 385, 390 (1972). Most importantly, the court is to examine the “control over the work reserved by the employer.” Id., 262 La. at 117, 262 So.2d at 391. The supreme court has identified a five-factor test to determine whether this relationship is one of employment in nature or that of an independent contractor:

(1) there is a valid contract between the parties;
(2) the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it;
(3) the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
(4) there is a specific price for the overall undertaking agreed upon; and
(5) the duration of the work is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.

Tower Credit, Inc. v. Carpenter, 01-2875, p. 6 (La.9/4/02), 825 So.2d 1125, 1129.

All of Williams’s work was done at Dutchtown’s pharmacy, to benefit Dutch-town. Although Williams was able to set his own hours, Dutchtown still had the right to approve them. Once beginning work at Dutchtown’s pharmacy, Williams exclusively served the pharmacy, working anywhere from 40 to 55 hours a week. The record further shows that Dutchtown not only had the right to control Williams’s work but the right to supervise it as well.

17Chris Williams, Inc., significantly, was formed by Williams at the urging of Dutchtown’s owners, in order to provide supposed tax benefits to Williams. The only revenue that Chris Williams, Inc. ever received was the compensation paid by Dutchtown for Williams’s individual professional services. Williams was also authorized and, in fact, required to accrue and take vacation time based upon specific authority from Dutchtown.

Additionally, the duration of Williams’ position with Dutchtown was clearly not for any specific time. There is no need to determine whether Williams was fired or whether he resigned as the test only contemplates whether either party had the power to end the relationship. Clearly, the question as to which party actually ended the relationship is irrelevant to the determination of at-will employee status. The nonspecific duration of Williams’s work for Dutchtown’s pharmacy tends to support the finding of Williams being an employee of Dutchtown, given all the relevant factors.

Though Chris Williams, Inc. “paid” Williams his salary and issued his employee tax forms, the combined weight of the relevant factors demonstrates that Dutch-town was Williams’s actual employer in terms of ultimate control. Thus, we determine that the trial court was not manifestly erroneous in concluding that Dutch-town’s exception of no right of action was properly overruled.

Vacation Pay

Having determined that the trial court properly overruled Dutchtown’s exception of no right of action, we now must determine whether or not the trial court properly determined the value of penalty wages owed to Williams. Vacation pay is considered due to the employee if in accordance with the stated vacation policy of the employer or when both of the following apply:

|s(a) The laborer or other employee is deemed eligible for and has accrued the right to take vacation time with pay.
(b) The laborer or other employee has not taken or been compensated for the vacation time as of the date of the discharge or resignation.

La. R.S. 23:681 (D).

Dutchtown contends that the award of three weeks of vacation time to Williams violates this statute because Williams only worked for 28 days in 2008 and thus did not accrue three weeks worth of vacation. Citing the Louisiana Supreme Court in Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353, 1359 n. 10 (La.1976), Williams points out “[t]he courts of this state have noted that forfeitures of wages are not favored under our law.” This reasoning is consistent with La. R.S. 23:631.

Dutchtown does not dispute Williams’s contention that he was entitled to vacation pay; however, Dutchtown disagrees as to the amount of vacation pay afforded to Williams. Citing Chapman v. Ebeling, 41,710, pp. 7-8 (La.App. 2nd Cir.12/13/06), 945 So.2d 222, 227, Dutchtown suggests that when a company has no written policy concerning vacation, accrued vacation time should be determined proportionally to time worked during the year in question. Though the court in Chapman also considered the other possibilities that (1) plaintiff be awarded no vacation pay or (2) plaintiff should be paid for the full year’s worth of vacation after only working a few weeks, it still determined that pro rata accrual was the only correct answer under La. R.S. 23:631(D). Id.

Though the pro rata accrual basis appears fair, the trial court determined that the entire vacation time accrued immediately when Williams began work in 2008. Though Dutchtown did not have a written policy in place, the trial court came to this determination after hearing the testimony |9of both Williams and John Smith, one of Dutchtown’s owners, that a previously fired pharmacist at Dutchtown was paid the entirety of his promised vacation instead of a proportionate share. Additionally, the court looked to Williams’s testimony, in which he stated that he had been told in October 2007 that he was entitled to three weeks of vacation for 2008 with no stipulation that it could only be taken as accrued.

Vacation leave, once promised, immediately becomes vested property of the employee to whom it was promised. Aguillard v. Crowley Garment Mfg. Co., 01-594, pp. 4-8 (La.App. 3rd Cir.2/27/02), 824 So.2d 347, 351-53, writs denied, 02-1348 (La.8/30/02), 823 So.2d 955, 02-1170 (La.8/30/02), 823 So.2d 956. Under La. R.S. 23:631(D), this leave is payable to the employee upon discharge or resignation unless the employer has a stated policy on the issue which has the effect of conditioning the right. Id. No such policy existed in the present case.

Given the foregoing, the trial court was not manifestly erroneous in determining that Williams was entitled to the entirety of his 2008 vacation pay. Though Dutch-town had no formal, written policy, the trial court concluded from the testimony that it did have an unwritten policy to award an entire year’s vacation effective January 1 of each year.

Bonus Pay

Dutchtown also appeals the trial court’s awarding of bonus pay to Williams. The trial court determined that as Williams was regularly paid a bonus of one percent (1%) of the gross sales receipts of the pharmacy every quarter based on monthly sales, he should be entitled to 1% of the January 2008 sales. However, since no evidence was presented as to the gross sales of Dutchtown in January 2008, the court took an average of past monthly hnbonuses (ranging from $3,000.00 to $4,000.00) and awarded Williams $8,500.00 as a bonus for January 2008.

Dutchtown insists that the bonus was discretionary. If it is a discretionary bonus then the employee is not entitled to it if he has failed to work for the entire period applicable to the bonus. Hinton v. Owensby & Kritikos, Inc., 425 So.2d 926, 929 (La.App. 4th Cir.1983). To support this contention, Dutchtown points to the testimony of one of its owners, Michael Tinnerello, who stated that there were some quarters for which Williams received a monthly bonus and some for which he did not. Tinnerello did not award Williams the bonus for the first quarter of 2008 for numerous reasons, including the failure to provide services to Dutchtown for the entire quarter.

The court weighed this information and determined that though the bonus was termed “discretionary,” it was in fact non-discretionary. Though Williams did not receive a bonus every quarter he worked at Dutchtown, the record indicates that this was because Dutchtown was not yet established to pay the bonuses. However, once Williams received his first bonus payment, he continued to be paid 1% of the sales receipts until the bonus payment contemplating January 2008 would have been paid. Additionally, there was testimony from both Williams and John Smith that the bonuses were never awarded on a discretionary basis or performance, but on a straight formula. Thus, though Williams did not work for the entirety of the first quarter of 2008, he was in fact owed a bonus for the month he did work.

This conclusion is not manifestly erroneous as it is based on the credibility of the numerous witnesses as determined by the trial court. Therefore, we affirm the award of $3,500.00 to Mr. Williams for his work from January 1 to January 28, 2008.

| nAttorney Fees

Under La. R.S. 23:632, reasonable attorney fees are to be awarded in the event of a well-founded suit for unpaid wages. Thus we affirm the trial court’s award of attorney’s fees to Williams.

As for Williams’s claim for additional attorney fees on appeal, however, it is well settled that when an appellee neither appeals nor answers the appeal, he is not entitled to additional attorney fees for legal services rendered on appeal. See La. C.C.P. art. 2133; Zavala v. St. Joe Brick Works, 07-2217, p. 10 (La.App. 1st Cir.10/31/08), 999 So.2d 13, 21. Although Williams requested additional attorney fees in his appellate brief, he did not properly request them by answering this appeal or filing his own appeal. We therefore decline to award any additional attorney fees in connection with this appeal.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the defendant-appellee, Dutch-town Pharmacy, L.L.C.

AFFIRMED.

DOWNING, J., concurs.

McCLENDON, J., concurs in part and dissents in part and assigns reasons.

McCLENDON, J.,

concurs in part and dissents in part and assigns reasons.

|J respectfully disagree to the extent the majority concludes that the plaintiff was entitled to three weeks of vacation pay. Although testimony was presented at the hearing to show that another pharmacist was paid the remainder of his vacation pay following his termination, that pharmacist had worked the majority of the year, whereas the instant plaintiffs employment terminated in January. Additionally, the mere fact that plaintiff had previously been told that he would receive three weeks of vacation in 2008 does not indicate that the entirety of the vacation vested on January 1, 2008. Based on the facts presented herein, I find the reasoning of my colleagues in Chapman v. Ebeling, 47,710 (La.App. 2 Cir. 12/18/06), 945 So.2d 222, instructive. Thus, I would find that a payment of an accrued portion, based on the pro-rata amount of time employed during 2008, is the appropriate method of calculating plaintiffs vacation time.

      . The trial court apparently did not resolve the issue of whether Williams resigned from Dutchtown or was fired for failure to sign the employment contract. That determination, however, is unnecessary for resolving the ultimate issue in question.

      . Louisiana Revised Statutes 23:631(A)(l)(a) and (b) generally provide that upon the discharge or resignation of any laborer or other employee of any kind whatever, it shall be the duty of the employer to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days after discharge or separation, whichever occurs first.

      .Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or the employee after three days shall have elapsed from time of making the first demand following discharge or resignation.


author: GUIDRY, J.

text:
    Succession of Holly SIVERD. Succession of Holly Siverd DuFaur.
    Nos. 2008 CA 2383, 2008 CA 2384.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.

      Sean Michael Hanley, Versailles, KY, Plaintiff/Appellant, pro se.
    B. Frank Davis, David M. McDonald, Metairie, LA, for Defendant/Appellee, Edward DuFaur.
    Before: CARTER, C.J., GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

| ¡Appellant, Sean Hanley, appeals from a trial court judgment (1) denying his rule as to why the original and supplemental will of Holly Siverd should not be found null and revoked and as to why he should not be recognized as independent administrator of Holly Siverd’s succession and (2) confirming Edward DuFaur as executor of the last will and testament of Holly Siverd dated January 29, 2007. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Holly Siverd died on March 10, 2007. At the time of her death, she was married to Edward DuFaur. She had been married twice previously and had two children, Sean Hanley and Troy Hanley, who were born of the first marriage.

On July 16, 2007, Sean and Troy Hanley filed a petition for administration and for appointment of an independent administrator in St. Tammany Parish. Sean Hanley was subsequently appointed to serve as independent administrator of the succession of Holly Siverd. However, on November 28, 2007, Edward DuFaur filed a petition for probate of last will and testament, asserting that Holly Siverd in fact died testate, having executed a last will and testament on January 29, 2007. The two matters were consolidated by order dated February 25, 2008.

Thereafter, DuFaur filed a motion to amend petition for probate of last will and testament, asserting that another testament dated December 10, 2001, had been discovered and requested that the court amend the petition for probate of last will and testament to delete all references to the January 29, 2007 testament. The trial court granted DuFaur leave of court to file the amended petition, and on March 6, 2008, DuFaur filed an amended petition for probate of last will and testament referencing only the testament executed on December 10, 2001. Additionally, |aDuFaur filed a motion to vacate the appointment of an independent administrator, asserting that pursuant to the last will and testament of Holly Siverd, he is to be the testamentary executor of Holly Siv-erd’s estate. However, the trial court denied DuFaur’s motion.

On March 28, 2008, DuFaur filed a motion to file a second amended petition for probate of last will and testament asserting that upon learning that counsel for Sean Hanley would contest the validity of the December 10, 2001 testament and oppose the motion to vacate, he now submits that there is no invalidity or defect in the January 29, 2007 testament and desires that said testament be submitted to the court and found by the court to be valid. DuFaur was granted leave of court to amend his petition, and on March 28, 2008, filed a second amended petition for probate of last will and testament referencing only the January 29, 2007 testament.

Subsequently, on April 7, 2008, Sean and Troy Hanley filed a rule to show cause why the original and supplemental wills admitted to probate should not be found null and revoked and as to why Sean Han-ley should not be recognized as independent administrator of Holly Siverd’s succession. Following a hearing on Sean and Troy Hanley’s rule, the trial court signed a judgment on July 7, 2008, ordering that Sean and Troy Hanley’s rule be denied and ordering that DuFaur be confirmed as executor of the last will and testament of Holly Siverd dated January 29, 2007. Sean Hanley now appeals from this judgment.

DISCUSSION

Mr. Hanley contends on appeal that the trial court erred in failing to find Holly Siverd’s January 29, 2007 testament absolutely null because the testament did not comply with the requirements of La. C.C. art. 1577. Specifically, Mr. |4Hanley contends that the January 29, 2007 testament is absolutely null because it does not contain a second attestation clause signed by the testatrix, Holly Siverd.

Louisiana Civil Code articles 1577-1580 set forth the requirements of form for a notarial testament, which must be observed or the testament is absolutely null. See La. C.C. art. 1573. When, as here, the testatrix can sign her name and is physically able to do so, La. C.C. art. 1577 prescribes that the testament shall be executed in the following manner:

(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this _day of_,_”

Accordingly, in order to be valid as to form, the testatrix must declare or signify in the presence of a notary and two witnesses that the instrument is her last will and testament; the testatrix must sign her name at the end of the testament and on each separate page; and the notary and two witnesses must sign a declaration in the presence of each other and the testatrix attesting that the formalities of Article 1577(1) have been followed.

Further, the Revision Comments — 1997 following Article 1577 state:

(a) This article reproduces the substance of R.S. 9:2442. It does not change the law.
(b) The testator need not sign after both the dispositive or appointive provisions of this testament and the declaration, although the validity of the document is not affected by such a “double” signature. The testator is disposing of property, appointing an executor or making other directions in the body of the testament itself. He need only sign at the end of the dispositive, appointive or directive provisions. The witnesses and the notary are attesting to the observance of the formalities; they need only sign the declaration.
ls(c) The testator’s indication that the instrument contains his last wishes may be given verbally or in any other manner that indicates his assent to its provisions.

(Emphasis added.)

From a plain reading of Article 1577 and the revision comments, the testatrix is only required to sign at the end of the testament and on each separate page. Article 1577(1) does not require any further signatures, nor does it require a written declaration signed by the testatrix before a notary and two witnesses that the instrument is her testament. As subpara-graph (c) of the revision comments states: “[t]he [testatrix’s] indication that the instrument contains [her] last wishes may be given verbally or in any other manner that indicates [her] assent to its provisions.” The notary and witnesses attest to the observance of this formal requirement, as well as the requirement that the testatrix sign her name at the end of the instrument and on each separate page, as indicated by their signatures following the attestation clause required by Article 1577(2). See Succession of Veal, 257 La. 380, 385, 242 So.2d 551, 552 (1970); see also Succession of Remont, 462 So.2d 224, 226 (La.App. 1st Cir.1984).

lfiThe first paragraph of the January 29, 2007 testament states that “I, Holly Siverd DuFaur, ... declare this to be my Last Will and Testament.” Because Holly Siv-erd signed at the end of the testament and on each separate page, and the instrument contains an attestation clause signed by the notary and two witnesses substantially similar to that contained in Article 1577(2), we find that the requirements for a notarial testament are satisfied. See Succession of Manuel, 01-498, p. 7 (La.App. 5th Cir.11/27/01), 806 So.2d 686, 690, writ denied, 01-3363 (La.3/8/02), 810 So.2d 1163. As such, the trial court was correct in denying Mr. Hanley’s rule to show cause. Further, because we find that the trial court was correct in denying Mr. Hanley’s rule, his arguments regarding the trial court’s refusal to reinstate him as independent administrator and the confirmation of Edward DuFaur as executor are moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are to be borne by the appellant, Sean Hanley.

AFFIRMED.

      . Though the decedent was married at the time of her death, the death certificate listed her as "Holly G. Siverd.” Therefore, we will refer to her in the opinion as Holly Siverd for consistency.

      . On July 10, 2008, DuFaur again filed a motion to vacate the appointment of an independent administrator, which was granted by judgment dated August 27, 2008. However, this judgment is not part of the instant appeal.

      . While statements contained in the official comments are not part of the statute and not binding on the court, the comments to the code article represent an extrinsic aid that assists in statutory interpretation. First National Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195, p. 20 (La. 11/16/07), 971 So.2d 302, 314.

      . Mr. Hanley cites to Succession of Simno, 06-1169 (La.App. 4th Cir. 12/29/06), 948 So.2d 315, for the proposition that two attestation clauses are required for a testament to be valid. In Simno, the testator signed an attestation clause reading: “I hereby sign my name in the presence of the two undersigned competent witnesses and notary public affirming that this is my last will and testament on the date aforementioned above.” However, there was no signature by the notary and two witnesses to this clause or any other clause purporting to be an attestation clause as required by Article 1577(2). In finding the testament invalid for lack of an attestation clause signed by a notary and two witnesses, the fourth circuit stated that Article 1577 requires two attestation clauses, one by the testator and one by the notary and two witnesses, and an attestation clause signed by the testator cannot be a substitute for the attestation clause required by Article 1577(2). Sim-no, 06-1169 at p. 4, 948 So.2d 317. However, to the extent that Simno states that Article 1577 requires two attestation clauses, we reject the fourth circuit’s reasoning as contrary to the plain wording of Article 1577 and the revision comments.

      . The above cited cases were decided before the enactment of Article 1577; however, the requirements for a statutory will were the same under the repealed statutes discussed in those cases.

      . Mr. Hanley acknowledges that the attestation clause in the January 29, 2007 testament, which is signed by the notary and two witnesses, satisfies the requirement of Article 1577(2).

      . We note that the January 29, 2007 testament specifically revoked all prior wills, which would include the testament dated December 10, 2001.


author: GAIDRY, J.

text:
    Dr. Marion BONAPARTE v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College, the Board of Supervisors of Southern University and Agricultural and Mechanical College, The Board of Supervisors of Community and Technical Colleges And The Baton Rouge Community College Management Council.
    No. 2009 CA 0153.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 11, 2009.
    Writ Denied Dec. 11, 2009.

      Floyd J. Falcon, Jr., Daniel L. Avant, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee, Dr. Marion Bonaparte.
    Leo C. Hamilton Jerry L. Stovall, Jr., Baton Rouge, Louisiana, for Defendant/Appellant, Board of Supervisors of the Louisiana Community and Technical College System.
    Before: DOWNING, GAIDRY, and McClendon, jj.
   GAIDRY, J.

|2The former chancellor of a community college was awarded lost salary for a teaching position in his academic field following his termination as chancellor. The state board charged with management of community and technical colleges appeals the trial court’s judgment granting the award, and the former chancellor has answered the appeal. For the following reasons, we reverse the trial court’s judgment and deny the answer to the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The Baton Rouge Community College (BRCC) was established by Acts 1995, No. 921, § 1, effective June 28, 1995, as a two-year institution of higher learning. La. R.S. 17:3222. At the time it was established, BRCC was managed jointly by the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (LSU) and the Board of Supervisors of Southern University and Agricultural and Mechanical College (Southern). LSU and Southern in turn established a joint Management Council, and delegated their administrative and management functions to the Management Council.

The Management Council selected Marion Bonaparte, Ed.D., as its first chancellor. By letter dated December 20, 1995, Dr. Bonaparte was offered the position. The letter provided, in pertinent part:

This Letter of Appointment ... is sent to confirm your selection as Chancellor of the Baton Rouge Community College by the Management Council at its meeting on December 8, 1995. The terms of this offer of employment are stated below ....
The Management Council of the Baton Rouge Community College has authorized your appointment as Chancellor under the following terms:
|s6. The Chancellor shall be offered tenure in his academic area.
In accordance with the laws of the State of Louisiana, the Chancellors serve in their positions at the pleasure of the Boards of Supervisors. In that the Boards of Supervisors have delegated their powers to the Management Council, except those enumerated in the Bylaws of the Management Council, the Chancellor of the Baton Rouge Community College shall serve at the pleasure of the Management Council ....
As Chancellor, ... you are expected to successfully develop, design and implement a plan to open and begin operation of a comprehensive community college in Baton Rouge, Louisiana by the Fall of 1997. The particulars for accomplishing this task will result from discussions between you and the System Presidents in the very near future. Following these discussions, the Presidents will recommend to the Management Council a description of the duties and responsibilities for the Chancellor....

(Emphasis added.)

Article VII, Section G of the Management Council’s Bylaws established an Academic and Student Affairs Committee, responsible for “matters concerning academic organization, curricula, personnel, tenure, and all other matters relating to faculty and students.” (Emphasis added.) Article IX, Section B of the Bylaws granted the BRCC chancellor broad discretionary powers related to the administration and operation of BRCC, and Article IX, Section C authorized the chancellor to make appointments, promotions, transfers, suspensions, and dismissals of academic employees, subject to the approval of the LSU and Southern presidents and confirmation by the Management Council.

By Acts 1998, 1st Ex. Sess., No. 151, § 1, effective July 1, 1999, the control, supervision, and management of BRCC was transferred to the Louisiana Board of Supervisors of Community and Technical Colleges 14(Board of Supervisors). Dr. Bonaparte’s employment as chancellor was terminated by vote of the Board of Supervisors on August 11,1999.

On December 15, 1999, Dr. Bonaparte filed a petition seeking damages and a tenured academic position. Named as defendants were LSU, Southern, the Management Council, and the Board of Supervisors. He alleged that he was terminated from the position of chancellor without cause and that the defendants' refused to grant him an academic position with tenure, thereby breaching their contractual obligations to him.

This matter was tried on June 6, 2008. Following the conclusion of trial, the trial court took the matter under advisement and ordered the submission of post-trial memoranda. On September 15, 2008, the trial court issued oral reasons for judgment, finding that Dr. Bonaparte was not entitled to academic tenure, but finding that he was nevertheless entitled to “lost salary” in an academic position in the total amount of $124,726.00. The trial court’s judgment was signed on September 19, 2008.

The Board of Supervisors appeals. Dr. Bonaparte has answered the appeal, seeking an increase in the award of damages and reversal of the trial court’s decision denying tenure.

ANALYSIS

The parties do not dispute that Dr. Bonaparte held the position of chancellor of BRCC at the pleasure of the Board of Supervisors, as successor to LSU, Southern, and their Management Council. The issue is whether he was entitled to tenure in his academic field despite his termination as chancellor, thereby entitling him to damages and other relief.

|5The process and considerations that lead to the ultimate decision granting or denying a professor’s tenure application are matters pertaining to the internal management of a university. Jones v. Southern Univ. & A & M College System, 96-1430, p. 5 (La.App. 1st Cir.5/9/97), 693 So.2d 1265, 1268. The academic tenure process is generally recognized as intrinsically subjective. Such a determination is not readily scrutinized in the adversarial judicial forum. Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir.1992).

Establishment of a formal tenure process generally precludes a reasonable expectation of continued employment for non-tenured faculty. Huang v. La. State Bd. Of Trustees for State Colleges & Universities, 99-2805, p. 7 (La.App. 1st Cir.12/22/00), 781 So.2d 1, 7, citing Spuler, 958 F.2d at 107. An obvious corollary to the foregoing principle is that if no tenure process is established, all faculty are nontenured, and thus are at-will employees. See La. C.C. arts. 2024 and 2747.

A conditional obligation is one dependent on an uncertain event. If the obligation may not be enforced until the uncertain event occurs, the condition is suspensive. La. C.C. art. 1767. A sus-pensive condition “may be either expressed in a stipulation or implied by the law, the nature of the contract, or the intent of the parties.” La. C.C. art. 1768.

The overwhelming preponderance of the evidence in the record demonstrates that no formal tenure process was ever established at BR.CC. By Dr. Bonaparte’s own admission, neither the faculty handbook nor the tenure process had been established when he was terminated from his employment as chancellor, although they were in the process of being developed. Even if Dr. Bonaparte would have been automatically entitled to tenure in his academic area, or to an offer of tenure, simply by virtue of his position as chancellor, without any application for same on his part, such a | ^benefit would necessarily be predicated upon the existence of an established tenure process. The evidence is likewise clear that it was Dr. Bonaparte’s responsibility as chancellor to establish such a process. He did not accomplish that task during the course of his employment as chancellor. Thus, the implicit suspen-sive condition that would have entitled Dr. Bonaparte to tenure in his academic field was never fulfilled prior to the termination of his employment as chancellor. The provision in the letter of appointment that “[t]he Chancellor shall be offered tenure in his academic area” cannot reasonably be interpreted as an immediate grant of tenure, or an unqualified promise of future tenure. See Gottlieb v. Tulane Univ. of La., 529 So.2d 128, 131-33 (La.App. 4th Cir.), writ denied, 532 So.2d 766 (La.1988). If a tenure process had in fact been in place when Dr. Bonaparte was hired as chancellor, or established prior to his termination as chancellor, the result we reach might very well be different. See Bruno v. Detroit Inst. of Tech, 51 Mich.App. 593, 215 N.W.2d 745 (1974).

Based upon our review of the record, we conclude that there is no factual or legal basis for the trial court’s award to Dr. Bonaparte. Accordingly, the judgment of the trial court is reversed. For the same reasons, we deny Dr. Bonaparte’s answer to the appeal. All costs of this appeal are assessed to the plaintiff-appellee, Marion Bonaparte, Ed.D.

REVERSED; ANSWER TO APPEAL DENIED.

McClendon, j. concurs.

      . LSU, Southern, and, by extension, their Management Council were subsequently dismissed by this court’s supervisory writ reversing the trial court's judgment overruling a peremptory exception of no cause of action. Bonaparte v. Bd. of Supervisors of La. St. Univ. & Agric. & Mech. College, 2006 CW 0124 (La.App. 1st Cir.3/6/06) (unpublished writ disposition).