author: MARC E. JOHNSON, Judge.

text:
    SUNDOWN EXPRESS, INC. v. Frederick GONZALES.
    No. 09-CA-205.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.
    Writ Denied Dec. 18, 2009.
    John Mezaraups, John J. Rabalais, Janice B. Unland, Deanne B. McCauley, Attorneys at Law, Covington, LA, for Plain-tifi/Appellee.
    Joseph G. Albe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

|2The Plaintiff/Appellant, Frederick Gonzales, appeals a workers’ compensation judgment denying his motion for contempt and penalties and attorney’s fees and granting an exception of no cause of action filed by the Defendant/Appellee, Sundown Express. We affirm.

The Plaintiff was injured on March 16, 2004 while in the course and scope of his employment with the Defendant. He underwent treatment and cervical implant surgery at Omega Hospital at the end of June 2008. In July, the Louisiana Commerce and Trade Association Self-Insurers’ Fund (LCTA), the Defendant’s workers’ compensation insurer, paid $2,059.00 for the surgery, and provided an Explanation of Benefits to the hospital.

On August 8, 2008, the hospital sent a request to LCTA’s third-party administration, Risk Management Resources, Inc. (RMR) for further reimbursement to pay for the cervical implants used during the surgery.

bjOn August 14, 2008, the Plaintiff, the Defendant, and LCTA settled the workers’ compensation claim. In conformity with La. R.S. 23:1272, the parties submitted to the workers’ compensation judge a “Joint Petition for Approval of Workers’ Compensation Compromise Settlement.” The settlement terms included an agreement by the Defendant to pay any subsequent medical costs related to the Plaintiffs cervical surgery, pursuant to the workers’ compensation fee schedule. The workers’ compensation judge approved the settlement. The settlement was approved on August 14, 2008.

On August 26, 2008, RMR forwarded to the hospital another Explanation of Benefits and requested further documentation regarding the implant to support the claim. Omega complied, but according to LCTA, the information was still incomplete and not in compliance with La. R.S. 23:1034.2.

In October, the Plaintiffs counsel notified LCTA that Defendant refused to pay for the surgical expenses. After investigation, LCTA responded that the bills had been paid in accordance with the fee schedule in July of 2008. As to the implants, LCTA informed the Plaintiff that the hospital had not provided the invoice for the surgical metallic implants and explanation of medical benefits that LCTA required before paying the bill.

On November 11, 2008, the Plaintiff filed a Motion for Contempt/Motion for Penalties and Attorney’s Fees against the Defendant for failing to pay the claim timely in accordance with the settlement and compromise. On November 12, 2008, the Defendant paid the hospital bill for the implants.

|4In response to the Plaintiffs motion, the Defendant filed an exception of no cause of action, alleging that the Plaintiff has no personal obligation to pay the hospital bill even if the Defendant failed to pay under the fee schedule. On December 15, 2008, the workers’ compensation judge dismissed the Plaintiffs motion and granted the exception of no cause of action.

On appeal, the Plaintiff asserts that the trial judge erred in denying his motion and, granting the exception of no cause of action, and in failing to award penalties and attorney’s fees for the unjustified delay in paying the claim.

CAUSE OF ACTION

In Zurich American Ins. Co. v. Queen’s Machinery Co., Ltd, 08-546, p. 8-9 (La. App. 5 Cir. 1/27/09) 8 So.3d 91, 96, this Court stated

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015, p. 5, n. 3 (La.11/30/94), 646 So.2d 885, 888, n. 3. The function of the exception is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234, 1235 (La.1993). No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690, p. 1 (La.7/5/94), 640 So.2d 237, 241 (Citations omitted). In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. City of New Orleans, 93-0690 at 28, 640 So.2d at 253 (Citations omitted). A petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349 (Citation omitted).

| fiThe Plaintiff contends that R.S. 23:1201 provides a cause of action for this claim, regardless of whether he would be liable for the outstanding medical bills. He further asserts that he is entitled to penalties and attorneys’ fees under La. R.S. 23:1201 because the Defendant failed to provide any evidence that justified the delay in paying the outstanding medical bill.

A review of the record discloses that the compromise and settlement approved by the trial judge included a waiver of all future claims. In particular, the documents show that the Plaintiff waived his action for any penalties and attorney’s fee. The ORDER OF APPROVAL states that the Defendants

“shall forever be released and relived form any and all past, present or future liability of any nature or kind, whatsoever, for the claims of FREDERICK GONZALES and his counsel, for compensation, medical expenses, penalties and/or attorney’s fees of whatever kind or nature, or which may hereafter arise, growing out of any accident or injury occurring prior to the date of this agreement while he was in the employ of SUNDOWN EXPRESS, INC.” [Emphasis added.]

THE RECEIPT AND RELEASE document (the second paragraph) contains similar language, as does the affidavit filed by the Plaintiff in conjunction with the JOINT PETITION FOR APPROVAL OF WORKERS’ COMPENSATION COMPROMISE SETTLEMENT ... both of which were filed into the record on August 14, 2008.

We recognize that the purpose of imposition of penalties and attorney’s fees is to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46; Redler v. Giorlando’s Restaurant Corp., 07-658, p. 7 (La.App. 5 Cir. 2/6/08), 979 So.2d 512, 516, writ denied, 08-0863, 983 So.2d 925 (La.6/6/08). However, the record is clear that the Plaintiff waived his right to assert a claim for penalties and attorneys fees of whatever nature. Thus, the trial judge did not err in granting the | (¡Defendant’s peremptory exception of no cause of action, albeit for reasons that we find no need to address in light of our conclusion.

Accordingly, the workers’ compensation judgment granting the Defendant’s peremptory exception of no cause of action is hereby affirmed.

AFFIRMED.

      . La. R.S. 23:1034.2 regulates disputes between the health care provider and the employee, employer, or workers' compensation insurer.


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    Lane B. DAVIS and Jeanne D. Davis v. Stephen K. CONROY and Conroy Law Firm, a Professional Law Corporation.
    No. 09-CA-142.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.
    Writ Denied Feb. 5, 2010.

      Robert H. Matthews, Pauline M. Warri-ner, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellant.
    Michael P. Mentz, Alayne R. Corcoran, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    William E. Wright, Jr., Charlotte C. Meade, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

l2The plaintiffs have appealed the trial court’s grant of the defendant’s Exception of Prescription/Peremption. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The facts are taken from the plaintiffs’ Petition for Damages for legal malpractice filed on January 10, 2003. Plaintiffs, Jeanne and Lane Davis, allege that in June 1997 they entered into a verbal agreement to purchase the home owned by Lane’s parents, Dr. Robert Davis and Mrs. Barbara Davis, located at 5225 Cleveland Place in Metairie, Louisiana. Before the property was sold, however, on January 4, 1998 Mrs. Barbara Davis died. Mrs. Davis was survived by her husband, Dr. Davis, and four adult children, Lane Davis, Robert Davis, Jr., Virginia Davis and Diana Davis Brooks. The Cleveland Place property went into Mrs. Davis’ succession since the property was still owned by Dr. and Mrs. Davis at|sthe time of Mrs. Davis’ death. In August 2001, the Davis children sought the services of the defendant, Stephen Conroy, to assist in opening the succession.

In October 2001, Mr. Conroy filed in Mrs. Davis’ succession proceeding a Petition for Authorization to sell the Cleveland Place property and a Judgment ho-mologating the petition was entered on November 9, 2001. A dispute involving the sale of the property developed between the plaintiffs and Dr. Davis. Plaintiffs contended that $107,703 previously paid to Dr. and Mrs. Davis were prepayments for the property, while Dr. Davis stated these monies did not represent prepayments. Plaintiffs allege that on February 1, 2002 they were informed by the defendant that the administratrix was only authorized to sell one-half interest in the Cleveland Place property. At this point, the closing of the Act of Sale was moved to April 16, 2002. However, before the act of sale was consummated, Dr. Davis filed a petition to nullify the judgment authorizing the sale and for a preliminary injunction enjoining the sale. Plaintiffs contend that Mr. Conroy signed a waiver of service of this petition and effectively consented to the injunctive relief requested without the posting of a bond.

In their petition, plaintiffs allege Mr. Conroy’s failure to notify Lane of the relief being sought demonstrated “a clear conflict of interest in violation of the Rules of Professional Conduct and the standard of care of lawyers practicing in this community.” The petition further alleged that they incurred additional substantial costs, that Mr. Conroy failed to “include or to pursue other assets of the estate,” and has “stymied” plaintiffs’ attempt to determine a proper evaluation of the estate. Plaintiffs alleged that as a result of Mr. Conroy’s failure to object and notify them of Dr. Davis’ petition, they suffered substantial losses to facilitate their purchase of the Cleveland Place property.

|4In response to this petition, defendant filed an Exception of No Cause of Action, or in the alternative, a Motion for Summary Judgment. In this exception, defendant argued plaintiffs’ claims are preempted under LSA-R.S. 9:5605. The trial court agreed and granted the exception. Plaintiffs appealed. On appeal, this Court found the trial court erred in ruling on an Exception of No Cause of Action by considering documents other than the petition and amended petition. Davis v. Convoy, 06-321 p. 5 (La.App. 5 Cir. 11/14/06), 942 So.2d 756, 759, writ denied, 07-0073 (La.3/9/07), 949 So.2d 449. The matter was remanded “for a hearing and the presentation of evidence or trial on the merits for resolution of the necessary factual questions.” Id.

On remand, defendant filed an Exception of Prescription/Peremption. Defendant argued he never agreed to represent plaintiff Lane Davis and was acting solely as the succession attorney at all times. Defendant further argued that plaintiffs knew or should have known of the facts giving rise to the allegations of malpractice by December 2001, thus preempting any cause of action against defendant for malpractice under LSA-R.S. 9:5605. In response, plaintiffs argued the proper vehicle for asserting an exception of peremption is an Exception of No Cause of Action and objected to the admission of any evidence on this issue.

At the hearing on the exception, defendant offered various letters and documents to support his contention that plaintiffs’ claim had prescribed. Plaintiffs objected to the admission of evidence. The trial court overruled the objection and allowed the evidence to be admitted. Plaintiffs argued that the act of negligence complained of was the signing of the waiver of service and bond that occurred on April 12, 2002, making the petition filed on January 10, 2003 timely. The trial judge took the matter under advisement, then rendered judgment granting |5the exception and dismissing plaintiffs’ suit with prejudice. This timely appeal followed.

LAW AND DISCUSSION

On appeal, plaintiffs contend the trial court erred in granting the Exception of Prescription/Peremption because they did not have a cause of action against defendant until April 12, 2002, making the petition filed on January 10, 2003 timely.

Defendant responds that the evidence established that plaintiffs’ claim is preempted under LSA-R.S. 9:5605 and jurisprudence. Defendant points out that the plaintiffs hired an attorney, Robert Alexis, III, to represent them in purchasing the Cleveland Place property and to represent Lane in the succession. Defendant asserts that plaintiffs had one year from the date that their attorney, Mr. Alexis, reviewed and participated in succession issues to allege any cause of action in legal malpractice against defendant. Defendant asserts that the evidence is undisputed that no later than December 2001, Mr. Alexis was aware of the specific facts that plaintiffs allege gave rise to plaintiff’s legal malpractice claim. Defendant concludes that because the action for malpractice was not commenced within one year of when plaintiffs knew or should have known of the alleged conflict of interest, the action is prescribed.

The time limits to file legal malpractice actions are set forth in LSA-R.S. 9:5605, which provides in pertinent part:

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless | ñfíled in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

The prescription periods set forth in this statute are peremptory. Atlas Iron and Metal Co. v. Ashy, 205-458, p. 4 (La. App. 3 Cir. 1/4/06), 918 So.2d 1205, 1210, writ not considered, 06-0296 (La.4/28/06), 927 So.2d 276. Accordingly, both the underlying cause of action and the legal right to bring that cause of action to court dissolve at the end of the specified periods of limitation. Id.

The peremption period begins to run when a client knows or should have known that a lawyer’s actions or inaction may cause the client to incur damages, thereby creating a cause of action for legal malpractice. Consequently, courts have to determine when a client “knew of the existence of facts which would have enabled him to state a cause of action for legal malpractice.” Dauterive v. Landry and Watkins, 01-1112, p. 18 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1255. It is also possible for a client to have constructive knowledge of facts sufficient to “place a reasonable man on notice that malpractice may have been committed,” such that the one year peremption period will begin to toll. Id. Louisiana courts have consistently held that “the knowledge of an attorney, actual or otherwise, is imputed to his or her client.” Andre v. Golden, 99-689, p. 8 (La.App. 5 Cir. 12/21/99), 750 So.2d 1101, 1104, writ denied, 00-174 (La.3/17/00), 757 So.2d 643.

If evidence is introduced at the hearing on the exception of prescription, the district court’s findings of fact are evaluated under the manifest error standard of review. Alexander v. Fulco, 39,293 (La. App.2d Cir.2/25/05), 895 So.2d 668, writ denied, 05-0781 (La.5/6/05), 901 So.2d 1107.

|7Applying this law to the facts of this case, we find the trial court correctly granted defendant’s exception. Plaintiffs’ Petition for Damages filed against defendant claimed defendant “breached his fiduciary duty and otherwise acted, or failed to act, in a negligent fashion, and has acted in a clear conflict of interest in violation of the Rules of Professional Conduct and of the standard of care of lawyers practicing in this community, all causing harm to plaintiffs.” According to Lane’s deposition, he sought the services of Mr. Alexis to help him acquire the Cleveland Place property. According to Mr. Alexis’ deposition, this took place in June 2001. Lane also testified that he met with defendant because it was his understanding that he could not get the Cleveland Place property in his name “until the succession was open.” According to defendant’s deposition, this meeting took place in August 2001.

Several letters written by defendant or someone in his firm were admitted into evidence. These letters, dated between November 1, 2001 and December 7, 2001, address various assets of the succession including but not limited to the Cleveland Place property. Several of these letters were addressed to Mr. Alexis. Mr. Alexis was sent a copy of the letters that were addressed to Lane. Specifically, the letter dated December 7, 2001 from defendant addressed to Lane and his siblings references a meeting that took place with Lane and Mr. Alexis “to address the original proposal to settle all of the claims in globo arising from the Succession of Barbara Davis.” This letter explains the conflicts and presents, among other things, a recommendation on how to resolve the disposition of various succession assets, including the Cleveland Place property. The letter concludes by stating “As you know, our firm represents the Estate and is assisting in the effort to settle these controverted issues.”

18This evidence clearly shows that there was a disagreement between Dr. Davis, Lane, and the other heirs as to how the assets of the succession should be distributed. If we adopt plaintiffs’ position that Mr. Alexis represented them solely to procure the Cleveland Place property and defendant represented Lane regarding the Cleveland Place property and all other aspects of the succession, the evidence makes it clear that plaintiffs were aware of the conflict of interest even before the December 7, 2001 letter. Plaintiffs’ claim that the first act by defendant that was actionable as legal malpractice was the signing of a Waiver of Service of Petition for Preliminary Injunction on April 12, 2002 is without merit. The evidence makes it clear that plaintiffs had notice prior to that date and certainly by December 7, 2001, that the defendant’s acts in handling the succession were in conflict with the manner in which the plaintiffs wanted to purchase the Cleveland Place property. This evidence leaves no doubt that the suit for legal malpractice filed by plaintiffs on January 10, 2003 was untimely because it was filed more than one year from when plaintiffs knew or should have known that they had a claim for conflict of interest against the defendant. Accordingly, the trial court correctly found plaintiffs knew or should have known of the facts giving rise to the alleged legal malpractice claim against defendant by December 2001 at the latest.

Plaintiffs’ argument that the trial court erred in admitting evidence at the hearing on defendant’s exception as well their complaint regarding lack of notice that evidence would be received is also without merit. In remanding this matter to the district court, this Court stated “we must remand the case for a hearing and presentation of evidence or trial on the merits for resolution of the necessary factual questions.” Davis, p. 5, 942 So.2d at 759.

Plaintiffs’ argument that the defendant’s exception should not have been granted because the mere conversion of that Motion for Summary Judgment to an |i)Exception of Prescription/Peremption does not resolve the material issues of fact noted by this Court in the first appeal is without merit as well. At a hearing on a peremptory exception pleaded prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded on a peremptory exception when the grounds for the exception are not apparent from the face of the petition. LSA-C.C.P. art. 931. When evidence has been introduced, the court is not authorized to accept the plaintiffs allegations as true. Schoen v. Walling, 31,598 (La.App. 2 Cir. 2/24/99), 728 So.2d 982, 985. The burden of proof on the prescription issue lies with the party asserting it unless the plaintiffs claim is barred on its face, in which case the burden shifts to the plaintiff. Waldrop v. Hurd, 39,855 (La.App. 2 Cir. 6/29/05), 907 So.2d 890. In the instant case, the action was not prescribed on the face of the petition because plaintiffs alleged that the defendant committed acts of malpractice within one year of the date that the action was filed. Thus, defendant had the burden of proving the action was prescribed and the burden did not shift to plaintiffs. Defendant carried this burden through the submission of evidence, including deposition testimony and correspondence showing the plaintiffs knew or should have known of defendant’s alleged conflict of interest more than one year before suit was filed.

Lastly, we reject plaintiffs’ argument that the petition alleges separate facts and separate torts with different per-emption periods. Plaintiffs’ petition alleges a conflict of interest by defendant in his alleged representation of both the succession and Lane as an heir of the succession. This is a single tort with a single peremp-tive period. See, Dauterive Contractors, Inc., p. 26, 811 So.2d at 1259. As discussed above, the petition was filed in excess of one year of when plaintiffs knew or should have known of the alleged conflict of interest and the trial court correctly found the action to be prescribed.

| inCONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Stephen Conroy, the Conroy Law Firm, and Continental Casualty Company as the professional liability insurer of Conroy were all named as defendants in this matter and are collectively referred to herein as “defendant.”


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    SPECTRUM AUTOMOTIVE FINISHES, INC. v. WESTBANK BODY WORKS, INC.
    No. 09-CA-148.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.

      Crystal M. Heine, Attorney at Law, Gretna, LA, for Plaintiff/Appellee.
    Kevin K. Gipson, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Defendant Westbank Body Works, Inc. (“Westbank”) appeals a trial court judgment in favor of plaintiff Spectrum Automotive Finishes, Inc. (“Spectrum”). Following a bench trial, the trial court awarded Spectrum $7,070.96 for a debt owed by Westbank on a contract the trial judge characterized as a consignment contract, $637.19 for a debt owed to Spectrum by Westbank on an account the trial judge characterized as an open account. The judgment additionally awarded Spectrum twenty five percent attorney’s fees on the balance of the alleged open account. Westbank asks us to determine that the alleged consignment was in fact a sale for which no money was due and that Westbank is owed a credit on attorney’s fees due on the open account. For the reasons that follow, we affirm.

Spectrum is a distributor of PPG Industries automotive paint. Westbank is an automotive repair business and body shop. This suit involves a disagreement over automotive paint and finishing products that Spectrum provided to Westbank pursuant to various agreements between 2000 and 2006. On October 17, 2007, |sSpectrum filed a Petition In Suit for Open Account and Breach of Contract (the “Petition”). In the Petition, Spectrum contended that it provided equipment to Westbank at no charge and initially stocked paint and accessories “via a consignment method.” In the Petition, Spectrum additionally contended that Westbank owed it $7,070.96 on the “consignment contract” and $637.16 on an “open account.” Westbank filed an Answer on December 17, 2007 contending that any and all amounts that it may have owed Spectrum had been paid in full.

At the bench trial, Spectrum first called on cross-examination Dana Kern, West-bank’s owner. Mr. Kern testified that in 2000 he became displeased with some of the paint products his then current distributor was providing to him. Mr. Kern decided to investigate the feasibility of switching to PPG Industries automotive paint. According to Mr. Kern, after conversations with Spectrum, Westbank entered into an “agreement” with in 2000. Mr. Kern testified that he understood that Spectrum would provide Westbank with paint mixing equipment and an initial supply of PPG Industries paint pursuant to the agreement. Mr. Kern further testified that he understood that Westbank would be thereafter be “charged for the paint” as it was used in the course of Westbank’s business. Mr. Kern testified that Tracy Lasang, a Spectrum saleswoman, told him that Spectrum would not charge Westbank for the initial supply of paint. According to Mr. Kern, Ms. Lasang told him that the initial supply of paint was an incentive to win Westbank’s business. Mr. Kern testified that Westbank and Spectrum representatives executed a PPG/Distributor/User Conditional Use Contract (the “Contract”). Spectrum employees thereafter installed a paint mixing system at Westbank’s place of business. According to Mr. Kern, the mixing system included an initial supply of paint.

|4Mr. Kern testified that he cancelled the Contract in 2006. After Mr. Kern can-celled the Contract, Spectrum employees picked up the paint mixing system that they had installed in 2000 as well as cans of automotive paint that had not been opened.

Mr. Kern testified that after Westbank’s business relationship with Spectrum ended, he received two Spectrum invoices addressed to Westbank. The first invoice was dated December 1, 2006 (the “December 1 invoice”). The December 1 invoice indicated that Westbank owed Spectrum $7,431.72 for “mixing tonners [sic]” and that Spectrum owed Westbank $860.76 for “return on consgn [sic]” on account number 7321. Mr. Kern disputed that he owed Spectrum for the charges on the December 1 invoice. According to Mr. Kern, the charges on the December 1 invoice were not valid because they corresponded to the initial supply of paint which Spectrum provided to Westbank free of charge in 2000.

Mr. Kern also acknowledged receiving a second invoice dated December 29, 2006 (the “December 29 invoice”) which indicated that Westbank owed Spectrum a “previous balance” of $637.16 on account number 7320. After receiving the December 29 invoice, Mr. Kern drafted a letter to Spectrum. The letter reads in part “[e]nclosed is a check for $285.96. It is the balance on your statement dated 12/29 minus $360.76 credit which was sent us.” Mr. Kern testified to his belief that he was entitled to apply the $360.76 credit on the December 1 invoice to the charges on the December 29 invoice. Mr. Kern further testified that he sent a check in the amount of $285.96 to Spectrum. Counsel for Spectrum introduced the December 29 invoice into the record.

Spectrum next called Kenny Boudreaux, the body shop manager at Don Bohn Ford. Mr. Boudreaux testified that the Don Bohn Ford body shop had | ^previously purchased PPG Industries paint from Spectrum. Seven months prior to trial, Mr. Boudreaux had terminated Don Bohn Ford’s relationship with Spectrum. Mr. Boudreaux testified that after the business relationship ended between Don Bohn Ford and Spectrum, Spectrum employees removed automotive paint and mixing equipment from the body shop. According to Mr. Boudreaux, Spectrum charged Don Bohn Ford for paint that had been opened. Mr. Boudreaux additionally testified that Don Bohn Ford received a credit from Spectrum for resalable paint that had not been opened. During cross-examination, Mr. Boudreaux admitted that he had no knowledge of the business relationship between Westbank and Spectrum.

Spectrum’s final witness was Theodore Heine. Mr. Heine testified that he is the owner of Spectrum. According to Mr. Heine, Spectrum has been in the business of selling automotive parts, automotive paint, and body shop supplies for approximately forty-three years. Further, Mr. Heine testified that Spectrum has been selling PPG Industries automotive paint to mechanics, body shops, and automobile dealerships for thirty-two years. Mr. Heine testified that regular Spectrum customers, such as Westbank, usually pay for automotive paint and related products on open accounts. Spectrum customers generally sign invoices for paint products when they receive the products. The customers thereafter receive computer generated statements from which they pay outstanding bills.

Mr. Heine recalled that in 2000 West-bank was using DuPont automotive paint. Mr. Heine testified that Spectrum installed a PPG Industries paint system “on consignment” after a demonstration. According to Mr. Heine, when Spectrum installs a paint system “on consignment,” it does not charge the customer for paint when it installs the system. Rather, Spectrum charges the customer for the paint Rafter the paint has been used and Spectrum has provided the customer with a new supply.

When counsel for Spectrum asked Mr. Heine about the intent of the parties in entering into the Contract counsel for Westbank objected on the basis that Mr. Heine’s testimony would constitute parol evidence. After reviewing the Contract, the trial court allowed Mr. Heine to testify as to the intent of the parties. Mr. Heine testified that the Contract obligates Spectrum to install paint mixing equipment and to stock a new Spectrum customer with an initial supply of paint. Mr. Heine further testified that the Contract allows Spectrum to bill the customer for paint that is no longer resalable after the customer terminates its relationship with Spectrum. Mr. Heine noted that he had used the same Contract in the course of Spectrum’s business approximately 50 times.

Mr. Heine indicated that when West-bank terminated its relationship with Spectrum, he went to Westbank with his employees and noted which paints were open or missing. According to Mr. Heine, he picked up all of the equipment that Spectrum had previously installed except for several cabinets. Mr. Heine additionally noted that nearly all of the cans of automotive paint and pearls had been used or were missing. Mr. Heine thereafter billed Westbank for the open or missing paints and pearls on the December 1 invoice and credited Westbank for paints and pearls that were resalable. He then sent the December 1 invoice to Westbank. According to Mr. Heine, the charges on the December 1 invoice corresponded to paints that were opened or missing and the credits on the invoice corresponded to paints that were resalable. Mr. Heine testified that the charges on the December 1 invoice corresponded to Westbank’s “consignment account.” Mr. Heine noted that Westbank had not paid for the charges on the December 1 invoice.

|7Mr. Heine indicated that Westbank had an additional “regular account” with Spectrum. Mr. Heine testified that the “previous balance” charges on the December 29 invoice corresponded to the charges on the regular account. Mr. Heine recalled receiving the $285.96 check Mr. Kern had sent in payment of the Decern-ber 29 invoice. This check represented the amount due on the December 29 invoice less the credit on the December 1 invoice. Mr. Heine testified that he did not indorse or cash the check because it did not reflect the full payment listed on the December 29 invoice.

On cross-examination, Mr. Heine admitted that he was not present when the Contract was signed. Mr. Heine testified that Tracy Lasang was listed on the Contract as an “Authorized PPG Distributor.” Counsel for Westbank asked Mr. Heine on cross-examination if he knew about any conversation that Ms. Lasang of Spectrum had with Mr. Kern before Spectrum installed its equipment at Westbank. Mr. Heine admitted that Ms. Lasang and Mr. Kern met several times prior to the installation of the paint system. Mr. Heine additionally admitted that he was not present at every meeting Ms. Lasang had with Mr. Kern. However, Mr. Heine testified that he knew nothing about any benefit Ms. Lasang promised to Mr. Kern in exchange for Westbank executing the contract with Spectrum. Mr. Heine further admitted that the Contract does not explicitly permit Spectrum to charge Westbank for opened or missing merchandise.

Spectrum introduced the March 1, 2000 Contract into the record. Under the terms of the Contract, PPG Industries (through Spectrum) agreed to supply Westbank with several pieces of “Equipment listed on the reverse side” for $1.00. IsThis list is actually a second page attached to the Contract as a “PPG/Distributor Conditional Use Equipment Listing.” The Equipment Listing lists numerous items as “Equipment,” including automotive paint, which had been referred to on the first page of the exhibit as “Products.” The parties do not dispute that the second page of the exhibit is actually the reverse side of the Contract.

Under the Contract, Spectrum agreed to supply Westbank with PPG Industries automotive paint “[f]or and in consideration of PPG Industries supplying [Westbank] with the [equipment].” Although the Contract obligated Westbank to resell the equipment to PPG Industries at the termination of the Contract, it did not specify how Westbank would pay for the initial purchase of automotive paint.

On August 29, 2008, the trial court rendered its judgment for Spectrum and against Westbank without assigning reasons. In its judgment, the trial court found Westbank liable to Spectrum “in the amount of ... ($7,070.96) under the contract for consignment.” Although it is not explicitly stated in the judgment, it is apparent that the trial court determined that the charges on the December 1 invoice corresponded to the Contract. The difference between the amount Westbank owed Spectrum under the December 1 invoice ($7,431.72) and the amount Spectrum owed Westbank under the December 1 invoice, ($360.76) was $7,070.96. The trial court additionally indicated that Westbank was liable to Spectrum in the amount of $637.16 “for debt owed by Defendant to Plaintiff under open account.” Although it is not explicitly stated in the judgment, it is apparent that the trial court determined that the charges on the December 29 invoice corresponded to charges on an open account. The trial court additionally found Westbank liable for twenty five percent attorney’s fees on the $637.16 due on the December 29 invoice. Westbank filed this timely appeal.

| ¡¡CONSIGNMENT CONTRACT AND DECEMBER 1 INVOICE

Westbank specifies two assignments to the proceedings below. In its first specification of error, Westbank contends that the trial court erred in finding that it breached the Contract. In its brief, West-bank contends that the trial court erred by permitting Mr. Heine to testify as to his understanding of the Contract. Spectrum contends that the Contract is ambiguous with respect to “payment for paint or paint supplies” and that the trial court’s decision to allow Mr. Heine to testify was proper. In essence, Westbank contends that Spectrum did not intend to charge it for the initial supply of paint provided by Spectrum.

While counsel for Westbank objected to the introduction of Mr. Heine’s testimony at trial, counsel failed to specify the trial court’s admission of Mr. Heine’s testimony as error. Rather, Westbank assigned as error the trial court’s finding that it breached the Contract, not the trial court’s admission of Mr. Heine’s testimony. We review only issues which were submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Uniform Rules, Courts of Appeal, Rule 1-3; Roussell v. Roussell, 96-148 (La.App. 5 Cir. 7/30/96) 678 So.2d 612, 615 (trial court’s refusal to address an issue is beyond the scope of appellate review when the appellant did not assign the trial court’s refusal to address the issue as error). Therefore, Westbank has waived its right to contest whether the trial court erred in permitting Mr. Heine to testify as to his understanding of the Contract.

Even if Westbank had properly reserved the right to challenge the admission of Mr. Heine’s testimony on appeal, we find that the trial court did not err in admitting the testimony. Westbank is essentially arguing that the Contract is a contract of sale. According to Westbank, the trial court should have held that | ^Spectrum was required to sell it the equipment listed on the second page of the Contract, including the initial supply of automotive paint, for $1.00. Spectrum contends that the Contract is a consignment agreement and that it was entitled to bill Westbank for the portion of the initial supply of paint that Westbank used in the course of its business.

The trial court agreed with Spectrum, and characterized the Contract as one of consignment. In a typical consignment agreement, the consignor retains title to goods and delivers them to the consignee for sale to the public. See, e.g., Harry Winston v. Levin, 130 So.2d 717, 718-19 (La.App. 4th Cir.1961). Black’s Law Dictionary defines “consign” as “[t]o give (merchandise or the like) to another to sell, usu. [sic] with the understanding that the seller will pay the owner for the goods from the proceeds.” Black’s Law DictionaRY 303 (7th ed. 1999). Consignments are recognized in Louisiana. Harry Winston, Inc., supra; Winru Chemical & Sales Co. v. Collier, 73 So.2d 9 (La.App. 2nd Cir.1954). By contrast, a “sale” is a contract whereby a person transfers ownership of a thing to another for a price in money. La. C.C. art. 2439. The thing, the price, and the consent of the parties are requirements for the perfection of a sale. Id.

A contract is the law between the parties. La. C.C. art. 1983. Where the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Parol or extrinsic evidence is generally inadmissible to vary the terms of a written contract unless the written expression of the common intention of the parties is ambiguous. Campbell v. Melton, 01-2578 (La.5/14/02), 817 So.2d 69, 75. Trial courts may consider parol evidence to explain the provisions of a written contract if the written expression of the common intention of the parties is ambiguous. Id.; Drachenberg v. Parish of Jefferson, 563 So.2d 523, 525 (La.App. |„5 Cir.1990). A contract is considered ambiguous on the issue of intent when it lacks a provision bearing on that issue, the terms of a written contract are susceptible to more than one interpretation, there is uncertainty or ambiguity as to its provisions, or the intent of the parties cannot be ascertained from the language employed. La. C.C. art. 1848; Brown v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 748. Whether a contract is ambiguous or not is a question of law. Kappa Loyal, L.L.C. v. Plai-sance Dragline & Dredging Co., Inc., OS-124 (La.App. 5 Cir. 6/19/03) 848 So.2d 765, 769.

Where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be disturbed unless manifest error is shown. Id. When the trier of fact’s determination is based on a decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 845 (La.1989).

One of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Rando v. Anco Insulations Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065 (citing Parish Nat. Bank v. Ott, 02-1562 (La.2/25/03), 841 So.2d 749, 753). The Louisiana Supreme Court has announced a two-part test for the reversal of the factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Ott, 841 So.2d at 753. The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one. Id.

[12By its own terms, the Contract “[commenced] only with the initial purchase and resale of PPG Automotive Refinish Paint Products.” In addition, Westbank agreed to “resell [PPG products]” in exchange for the receipt of Spectrum’s paint mixing equipment. The Contract did not specify how Westbank would pay for the initial purchase of paint. Westbank argues that Spectrum intended to sell the paint to it for $1.00. Spectrum contends that the parties intended the Contract to be a consignment agreement and that it would bill Westbank for the used paint when West-bank discontinued the use of PPG Industries paint.

The First Circuit encountered an analogous situation in Schroeter v. Holden, 499 So.2d 309 (LaApp. 1 Cir.1986). The Schroeter defendant executed a purchase agreement to buy a house for $135,000. Schroeter, 499 So.2d at 310. However, the purchase agreement did not specify under what terms the Schroeter defendant would purchase the house because the plaintiff had crossed out several clauses in the agreement. Id. The defendant attempted to introduce parol testimony regarding her need to obtain financing to purchase the property. Id. at 311. The plaintiff objected to the parol testimony, but the trial court determined that the contract was ambiguous on its face and overruled the objection. The trial court ruled that the plaintiff “was aware that the agreement to sell was contingent on [the defendant’s] being able to secure a loan,” and dissolved the purchase agreement. Id. The First Circuit affirmed, reasoning that there were “ambiguities as to how and in what form the agreed upon purchase price of $135,000 was to be paid. Therefore, the trial court properly allowed testimony on how the parties intended payment to be accomplished.” Id. at 312.

In the instant case, the Contract obligated Westbank to purchase paint from Spectrum. However, the Contract did not indicate in what manner Westbank would pay for the initial supply of paint. The Contract does not indicate whether 113the initial supply of paint was to be supplied free of charge or whether Spectrum was entitled to charge Westbank for the initial supply of paint when Westbank cancelled the Contract. Nor does the first page of the Contract incorporate the attached second page containing the “Equipment” by reference. We therefore agree with the trial court that the terms of the Contract are ambiguous and that the trial court properly allowed parol testimony regarding how Spectrum and Westbank intended payment of the paint to be accomplished. Mr. Heine testified that Spectrum’s standard practice was to provide customers with an initial supply of paint. When Spectrum’s contract with a customer ended, Spectrum would charge the customer for paint that was opened or unusable. Mr. Boudreaux confirmed that Spectrum employees had collected equipment and charged Don Bohn Ford for paint that was unusable or opened when Don Bohn Ford’s business relationship ■with Spectrum ended. Mr. Kern testified to his belief that Spectrum was not charging Westbank for the initial paint supply in an effort to win back Westbank’s business. However, Mr. Kern admitted that he “bought” the initial paint supply and that “the agreement that we had ... I’d get a complete set-up and as I used that, as that was used then I would be charged for the paint.” The trial court could have credited the testimony of Mr. Heine and Mr. Boudreaux. Alternatively, the trial court could have credited the testimony of Mr. Kern indicating his belief that Spectrum was providing him with an initial supply of paint at no cost. The trial court decided to credit Mr. Heine’s and Mr. Boudreaux’s testimony rather than Mr. Kern’s testimony. Accordingly, we find that the trial court was not manifestly erroneous in determining that the Contract was a consignment agreement and that Westbank owed Spectrum $7,070.96 pursuant to the December 1 invoice.

This assignment of error has no merit.

J^OPEN ACCOUNT/DECEMBER 29 INVOICE

In its second assignment of error, Westbank argues that the trial court erred in not applying the $285.76 check Mr. Kern mailed to Mr. Heine to the $637.16 balance due on the December 29 invoice. Westbank does not deny that an open account existed between the parties or that it owed Spectrum $637.16. Rather, West-bank contends that the trial court should have awarded a twenty five percent attorney’s fee on the difference between the $637.16 balance due on the December 29 invoice and the $285.76 check Mr. Kern mailed to Mr. Heine.

La. R.S. 9:2781 provides, in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.
* * ⅜
C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant’s attorney within ten days after service of the petition in city courts and fifteen days after service of the petition in all other courts.
D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.

In order to prove that an open account exists, a creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Cline v. 11fiGeorge Kellett & Sons, Inc., 96-456 (La. App. 5 Cir. 11/14/96), 685 So.2d 206, 208. Once a prima facie case has been established by a plaintiff/creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Id. An open account is analogous to credit account. Dixie Mach. Welding & Metal Works, Inc. v. Gulf States Marine Technical Bureau, Inc., 96-869 (La.App. 5 Cir. 8/12/97), 692 So.2d 1167. Factors to be considered in deciding whether an open account exists are: (1) whether there were other business transactions; (2) whether a line of credit was extended by one party to the other; (3) whether there are running or current dealings; (4) whether there are expectations of other dealings. Id. at 1170. The amount of an open account is a question of fact, which may not be disturbed absent manifest error. Cline, 685 So.2d at 208.

Mr. Heine testified that Westbank owed Spectrum $637.16 on the December 29 invoice. Mr. Kern acknowledged the receipt of the invoice as a “bill” from Spectrum. Counsel for Mr. Heine introduced several invoices into the record. On one group of invoices, including the December 29 invoice, the account number is listed as 7320. On the December 1 invoice, the account number is listed as 7321.

We are of the opinion that Spectrum overcame its initial burden of proving that an open account balance of $637.16 existed between it and Westbank; the invoices introduced into the record on account number 7320 establish running dealings between Westbank and Spectrum and the December 29 invoice indicates that Spectrum extended a line of credit to West-bank.

Thus, the burden then shifted to West-bank to prove the inaccuracy of the account or to prove that it was entitled to credits on the account. Westbank attempted to establish that it was entitled to a $860.76 credit on the December 29 invoice. Apparently, Mr. Kern believed that Westbank was entitled to a $360.76 | |ficredit on the December 29 invoice because the December 1 invoice indicated that Spectrum owed Westbank $360.76. However, Spectrum established at trial that Westbank had two separate accounts; Mr. Heine testified that account 7321 and 7320 were distinct accounts and introduced invoices into evidence to corroborate his testimony. Mr. Kern attempted to apply the $285.76 check to the charges on account number 7320. However, Westbank was entitled to the $360.76 credit on account number 7321, not account number 7320. Westbank never established at trial that it was entitled to a credit on account number 7320. Thus, we find that the trial court was not manifestly erroneous in determining that Westbank was entitled to twenty-five percent attorney’s fees on the $637.16 open account debt rather than the difference between the $637.16 balance due on the December 29 invoice and the $285.76 check Mr. Kern mailed to Mr. Heine.

Accordingly, this assignment of error has no merit.

CONCLUSION AND DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are taxed to Westbank.

AFFIRMED

      . Westbank does not dispute that it owes $637.19 on the account characterized by the trial judge as an open account. It only disputes the amount of attorney's fees due on the account.

      . Mr. Kern did not sign the Contract.

      . On the December 29 invoice, there is a box entitled "Account No.” In the box is the num-her "7320.1.” We assume this means that the December 29 invoice is the first invoice on account number 7320.

      . We note that the check is now stale because it has been outstanding for longer than six months. See La. R.S. 10:4-404 cmt. Compare Charles Ragusa & Son v. Community State Bank, 360 So.2d 231, 234 (La.App. 1 Cir.1978) ("[w]e believe that the payment of such an obviously stale check, three years old, demonstrates the bank's lack of due care.”).

      . Spectrum was known as "Auto Parts & Accessories #1” at the time the Contract was executed.

        . At trial, the trial court overruled Westbank’s objection.

      . In the judgment, the trial court ruled that Westbank was liable to Spectrum "in the amount of ... ($7,070.96) under the contract for consignment" and that Westbank was liable to Spectrum in the amount of $637.16 "for debt owed by Defendant to Plaintiff under open account.” In addition, the trial court noted that Westbank was liable for “attorney's fees in the amount of twenty-five percent of the open account principal bal-anee." Thus, it is evident that the trial court awarded twenty-five percent attorney's fees on the $637.16 open account debt and not the $7,096.96 debt on the Contract. In addition, Spectrum does not contend on appeal that Westbank is liable to it for attorney’s fees on the alleged $7,070.96 debt. Accordingly, we will not address whether Spectrum is entitled to attorney’s fees on the $7,070.96 consignment debt.


text:
    Brandy ROME v. Thomas BRUCE.
    No. 09-CA-155.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.

      Maria M. Chaisson, Attorney at Law, Destrehan, LA, for Plaintiff/Appellee.
    Mark D. Plaisance, Attorney at Law, Baker, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|«>The parties, Brandy Rome and Thomas Bruce, are the parents of a child born on September 8, 1998. Ms. Rome petitioned the court for custody and support, and on May 11, 2004, the parents were awarded joint custody with Ms. Rome being the domiciliary parent. Mr. Bruce filed petitions for change of custody on February 4, 2005 and December 4, 2006, both of which resulted in Ms. Rome continuing as the domiciliary parent. Mr. Bruce filed a Petition to Modify Custody on October 7, 2008 which was dismissed upon the trial court’s granting of Ms. Rome’s Exception of No Cause of Action thereto. Mr. Bruce seeks appellate review of that dismissal. For the following reasons, we affirm the ruling of the trial court.

FACTS AND PROCEDURAL HISTORY

According to the appellate record, Ms. Rome and the minor child returned to St. Charles Parish, Louisiana, after having lived with Mr. Bruce in New Hampshire. Following a trial on custody, in a judgment dated May 11, 2004, the trial court awarded joint custody, named Ms. Rome as the domiciliary parent, and granted Mr. Bruce visitation privileges. In February 2004, Mr. Bruce filed a | sMotion for Change of Custody, explaining that he was no longer traveling extensively due to his job and had relocated to Louisiana, requesting the parents be designated as co-domiciliary. On April 12, 2005, the parties entered into a Consent Judgment continuing joint custody with Ms. Rome as domiciliary parent and granting more frequent visitation privileges to Mr. Bruce. A motion filed by Mr. Bruce in August 2006 indicates he had relocated to New Hampshire and sought to modify the visitation schedule.

The December 4, 2006 Petition to Modify Custody filed by Mr. Bruce alleges the following material changes in circumstances: (1) the child failed first grade and previously failed kindergarten, (2) Ms. Rome is living with a man out of wedlock, and (3) Ms. Rome denies Mr. Bruce’s joint custody rights regarding the child’s education, religious, medical treatment, and extra curricular activities. In this petition, Mr. Bruce requests he be named as domiciliary parent or alternatively that he have equal physical custody of the child. Ms. Rome filed an Exception of No Cause of Action, claiming the petition failed to state a cause of action in that it does not allege any facts to suggest the continuation of the present custody is so deleterious to the child as to justify modification or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. On March 26, 2007, the trial court entered judgment sustaining the exception. The trial court also held a trial “on all pending matters” and in a judgment dated June 18, 2007, rendered judgment ordering Ms. Rome to remain as domiciliary parent and modifying the visitation schedule.

On October 7, 2008, Mr. Bruce filed another Petition to Modify Custody alleging the following material changes in circumstances: (1) the minor child is failing school at a critical time at grade four, and (2) the minor child is at risk of harm due to Ms. Rome’s “extramarital boyfriend’s domestic abuse conflict with |4his wife.” Ms. Rome filed an Exception of No Cause of Action thereto, claiming that the petition “fails to state a cause of action for changing custody as the allegations do not satisfy the Bergeron burden of proof necessary to change a Considered Decree.” The trial court agreed and dismissed Mr. Bruce’s petition. Mr. Bruce has appealed the grant of that motion.

DISCUSSION

On appeal, Mr. Bruce argues the trial court erred when it determined that Mr. Bruce’s allegations do not constitute a material change in circumstances based upon an “offer of proof’ made by Mr. Bruce at the hearing on the exception. He asserts that his burden was not whether he would prevail on his allegations, but rather whether his petition sets forth a valid cause of action for relief. Mr. Bruce contends the trial court erred in considering the “offer of proof’ because the only proper evidence for the court to consider is his petition.

Ms. Rome responds that the trial court correctly considered the “offer of proof’ made at the hearing, alleging that is required by Bergeron. Ms. Rome reasons that if litigants in actions to change custody are allowed to proceed to trial merely by making allegations that cannot be proven, Bergeron becomes meaningless.

Whether a plaintiff has stated a cause of action is a question of law. Therefore, this Court is required to conduct a de novo review in determining whether the trial court was legally correct in granting the exception of no cause of action. Donelon v. Donelon, 95-088, (La. App. 4 Cir. 7/26/95), 659 So.2d 512, 513. An exception of no cause of action questions whether the law extends a remedy against the defendant under the factual allegations of the petition. Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 7 (La.3/17/06), 929 So.2d 1211, 1217. In ruling on the exception, the trial court is required to decide whether to grant or deny the exception on the basis of the face of the petition, accepting as true each well-pled fact in the petition. Id. Evidence may not be introduced to support or controvert the objection that the petition fails to state a cause of action. C.C.P. art. 981.

In Bergeron, the Louisiana Supreme Court held:

When a trial court has made a considered decree of permanent custody, the party seeking a change bears the difficult burden of proving that the continuation of the present custody situation is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

Bergeron, 492 So.2d at 1200.

A trial court renders a considered custody decree when it makes an award of permanent custody after receiving evidence of parental fitness to exercise care, custody, and control of children. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731, 738.

In this matter, the last custody decree dated June 18, 2007 that was in effect at the time Mr. Bruce filed the October 7, 2008 Petition for Change of Custody, which resulted in the judgment forming the basis of this appeal, was entered after a custody hearing at which evidence was taken; thus it was a considered decree. As such, in order to modify this custody decree, the standard enunciated in Bergeron applies.

In the case at bar, Mr. Bruce alleged in his petition that the child failing fourth grade and the mother’s involvement with a man accused of domestic abuse were material changes in circumstances so deleterious to the child as to justify a modification in the custody decree. At the hearing on the Exception of No Cause [ fiof Action, Ms. Rome argued that the child’s failure in school had been alleged in a prior petition to change custody so the child’s difficulty in school is not a new event, and that her boyfriend was accused of domestic abuse but the victim had requested the district attorney drop the charges. Mr. Bruce responded that the child is unable to read, that he is the only one taking an active interest in the child’s academies, and that Ms. Rome blocks his access to the school records. In granting the exception, the trial judge stated that the fact that the child is not doing well in school is nothing new and has already been litigated. The trial judge further stated that concerning the issue of alleged domestic abuse involving Ms. Rome’s boyfriend, “I’m hearing that the particular female in that matter has dropped the charge.... There is nothing established there as fact yet.”

In Menge v. Menge, 545 So.2d 674, (La. App. 5 Cir.1989), this Court recognized the dilemma presented by the burden set forth in Bergeron, and the general rule that a cause of action should be maintained unless the plaintiff has no cause of action under any evidence admissible under the pleadings. This Court held: ■

The heavy burden proclaimed in Berger-on was thus crafted to avoid the less than “imperative” action for change of custody, in order to protect the best interests of a child who is the subject of a custody dispute between his parents. Therefore, the usual tendency of the courts to maintain a cause of action, whenever possible, gives way to a stricter interpretation in actions to modify a considered decree of custody. Unjustified litigation, and threats thereof, and the consequences of interparental conflict being visited upon the child, are specifically discouraged by the Supreme Court in this particular area by the burden of proof enunciated in Bergeron.

Id. at 676.

This Court went on to state:

... [I]n order to maintain a cause of action in a modification of a considered custody decree, the movant must allege some circumstances within the framework of Bergeron-that is, movant must aver in at least general terms the continuation of the present custody is so deleterious to the child as to justify a modification, or that the harm |7likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Otherwise, the detrimental effects to the child caused by ‘unjustified litigation, threat of litigation or continued interparental conflict’ sought to be avoided by the rationale of Bergeron will not be avoided.

Id.

Applying the above quoted jurisprudence to the case at bar in our de novo review of this matter, and without considering the “offer of proof’ made by Mr. Bruce at the hearing on the exception, we find the trial court correctly granted the Exception of No Cause of Action. In his petition, Mr. Bruce alleged the child continued to fail in school and the mother was in a relationship with a man that had pending domestic abuse charges. The trial court noted that the issue of the child failing in school had been raised and litigated in a recent petition to modify custody filed by Mr. Rome. Also, Mr. Rome’s petition does not allege that the domestic abuse charges in question directly involve Ms. Rome or the child. Thus, the allegations in the petition do not aver that continuation of the present custody is so deleterious to the child as to justify a modification or that the harm caused by a change of environment is outweighed by its advantages to the child. Accordingly, the petition fails to state a cause of action under Bergeron .

CONCLUSION

For the foregoing reasons, we find no error in the trial court’s grant of Ms. Rome’s Exception of No Cause of Action. Accordingly, the judgment of the trial court is hereby affirmed.

AFFIRMED.

      . Bergeron v. Bergeron, 492 So.2d 1193 (La.1986).

      . It appears from the record that Mr. Bruce currently resides in New Hampshire and the minor child has been domiciled in Louisiana for at least the past five years.

      . Additionally, the trial court appropriately ordered that Ms. Rome shall not allow someone of the opposite sex, not related by blood or marriage, to spend the night when she has physical custody of the minor child, and that Mr. Bruce be provided with another copy of the 2005 judgment ordering the child's school to provide him with access to the same information that is provided to Ms. Rome.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Steven M. SPIEGEL, a Professional Law Corporation v. Katherine MARTINEZ Wife of/and Richard Martinez.
    No. 09-CA-90.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.

      Steven M. Spiegel, Attorney at Law, Madisonville, LA, for Plaintiff/Appellant.
    Richard W. Martinez, Attorney at Law, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

| gPlaintiff, Steven M. Spiegel, APLC, (Spiegel) filed this suit on open account on April 14, 2008 in First Parish Court against Richard Martinez and Katherine Martinez seeking to recover professional fees for legal services rendered to Stephanie Martinez. The petition alleged that Katherine Martinez was the mother of Stephanie Martinez and the spouse of Richard Martinez. Plaintiff further alleged that Richard and Katherine Martinez engaged plaintiff in connection with custody of Stephanie Martinez’s daughter. Plaintiff attached to the petition several invoices which were addressed to Stephanie Martinez, c/o Richard Martinez showing a balance of $4,867.97. Plaintiff prayed for judgment finding defendants to be jointly and solidarily liable for the obligation sued upon and sought an award for the principal amount due, costs and legal interest.

In response to the petition, defendants filed a peremptory exception of no cause of action on the basis that plaintiff failed to produce a legally enforceable writing to support his claims of suretyship or third party beneficiary. The record in this matter fails to contain a transcript of a hearing laheld by the trial court on this exception. By judgment rendered on October 8, 2008, the trial court granted the exception without assigning reasons therefor. This appeal follows.

The Louisiana Supreme Court explained the standard of review of the sustainment or denial of a peremptory exception of no cause of action in Fink v. Bryant, 2001-0987, (La.11/29/01), 801 So.2d 846:

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether [the] plaintiff is afforded a remedy in law based on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the appellate court and this Court should subject the case to de novo review because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. (Citations omitted).

Fink, 801 So.2d at 348-9.

Applying the above principles of law to the instant case, we conclude the trial court erred in granting the exception of no cause of action. As the exceptors, the Martinezes have the burden of showing the plaintiff has failed to state a cause of action against them. We fail to find that the Martinezes have met that burden. After a review of matter de novo, we find that on the |4face of the petition and the documentary evidence, plaintiff has stated a cause of action on open account against the Martinezes.

Plaintiff filed the present suit on open account seeking to collect unpaid legal fees. Pursuant to La. R.S. 9:2781, an open account is any account for which a part or all of the balance is past due, whether it reflects one or more transactions and whether, at the time of contracting, the parties expected future transactions. Currently, the definition of open account includes legal services. La. R.S. 9:2781(D). For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt. Vezina and Associates v. Gottula, 94-593, p. 7 (La.App. 5 Cir. 3/1/95), 652 So.2d 85, 89.

The pertinent allegations of plaintiffs petition provides as follows:

4.

Richard Martinez and Katherine Martinez engaged Steven M. Speigel, APLC, to represent Stephanie Martinez in connection with an action involving custody of Stephanie Martinez’s daughter, seeking injunctions and support.

5.

Prior to the commencement of plaintiffs representation of Stephanie Martinez, Richard Martinez, on several occasions, met with the undersigned to discuss issues relating to his step-daughter, Stephanie Martinez; thereafter Katherine Martinez and Stephanie Martinez met with the undersigned to discuss the matter.

6.

At the initial conference with Katherine Martinez and Stephanie Martinez, Katherine Martinez paid the initial retainer in the amount of $2,500.00 and she was informed by the undersigned that additional funds would probably be needed to complete the matter. During the meeting, Katherine Martinez wrote a personal check covering the retainer requested of $2,500.00 and she assured plaintiff that she would pay whatever it would cost to have the matter handled.

Monthly invoices were sent to or delivered to Richard Martinez at his office address which, at all pertinent times, was in the same building and on the same floor as plaintiffs office.

8.

In response to invoices and statements showing a balance due on the account (after the initial retainer of $2,500.00 was applied to invoices), Defendants paid plaintiff an additional payment of $1500.00 in February 2005.

9.

The total amount billed by plaintiff on this account of $8,867.97 and that the total amount paid by defendants was $4,000.00. A copy of the invoices issued in connection with this representation is attached hereto as Exhibit “1” in globo.

10.

Plaintiff performed legal services on open account for Stephanie Martinez for which there remains due and owing to plaintiff the principal amount of $4,867.97. A current statement regarding the account is attached hereto as Exhibit “2”.

11.

Richard Martinez and Katherine Martinez sought to enter and did enter into a primary third party beneficiary contract for the benefit of Stephanie Martinez, and Stephanie Martinez availed herself of the benefit of the contract by accepting representation by plaintiff.

12.

Richard Martinez and Katherine Martinez agreed to be primarily liable for the payment of the fees and expenses incurred for services rendered to Stephanie Martinez by plaintiff.

In their exception of no cause of action, defendants contend that plaintiff cannot maintain a cause of action against them absent an allegation that the contract was in writing. Defendants contend that the contract is in the form of a suretyship or a third party beneficiary agreement, both of which are required to be in writing. We disagree.

1 fiBased on the allegations of plaintiff’s petition, we fail to find that the contract between the parties in this action must be construed as a suretyship. Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the later to do so. La. C.C. art. 3035. According to the allegations of plaintiff’s petition, the representation agreement was entered into by plaintiff directly with defendants, Richard Martinez and Katherine Martinez. Although the representation was for the benefit Katherine’s daughter, Stephanie, the petition alleges that Katherine Martinez paid the initial retainer and subsequent invoices were sent to Richard Martinez. There are no allegations in the petition which necessarily support a finding of a suretyship agreement or that Richard or Katherine Martinez retained plaintiff as guarantors upon the failure of Stephanie to meet this obligation. To the extent the trial court determined otherwise, we find this to be error.

A review of the allegations of the petition indicates that plaintiff alleges the parties entered into a primary third party beneficiary contract, whereby Richard and Katherine Martinez stipulated a benefit for Katherine’s daughter, Stephanie. A stipulation for a third party is provided for by La. C.C. art. 1978, and can support a finding of an enforceable, primary obligation under Louisiana law. There is no requirement that such a contract be in writing. See, Vezina and Associates v. Gottula, supra, 94-593, p. 8, 652 So.2d 85, 89. Thus, as it does not appear beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief, we find the petition sufficient to state a cause of action.

Accordingly, we find that the allegations of plaintiff’s petition states a valid cause of action against defendant on open account, and the trial court’s |7ruling granting defendants’ exception of no cause of action is erroneous. The judgment is therefore reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. Defendants shall bear all costs of this appeal.

REVERSED AND REMANDED.


text:
    STATE of Louisiana v. Jaime MAGANA.
    No. 09-KA-195.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 13, 2009.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Juliet Clark, Assistant District Attorneys, Gret-na, Louisiana, for Plaintifi/Appellee.
    Bruce G. Whittaker, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., WALTER J. ROTHSCHILD, and MARC E. JOHNSON.
   WALTER J. ROTHSCHILD, Judge.

LThe defendant, Jaime Magana, was charged by bill of information with operating a motor vehicle while intoxicated (a fourth offense) (“DWI”), in violation of LSA-R.S. 14:98(A)(E). The defendant pled not guilty at arraignment, and subsequently filed a motion to quash the predicate offenses. Following a hearing, the trial court denied the motion to quash. Subsequently, the defendant withdrew the not guilty plea and pled guilty as charged pursuant to State v. Crosby. Pursuant to a plea agreement with the State, the trial court accepted the guilty plea and sentenced the defendant to ten years at hard labor to run ^concurrently with his sentence in 07-5831 and ordered the defendant to pay a fine of $5,000. Four years of the defendant’s sentence was suspended, as well as $2,500 of his fine. The defendant was placed on active probation for four years in home incarceration, upon his release from the Department of Corrections. The trial court also imposed other fees and conditions of probation. This timely appeal follows.

FACTS

In the bill of information, the defendant was charged with driving while intoxicated, fourth offense (fourth DWI), a violation of LSA-R.S. 14:98(E). Because the defendant pled guilty, there was no testimony given or evidence presented concerning his fourth DWI offense. During the defendant’s plea and sentencing hearing, the defendant pled guilty to a fourth offense DWI.

Under the procedure set forth in State v. Benjamin, 573 So.2d 528, 530 (La.App. 4 Cir.1990), appointed appellant counsel has filed an Anders brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669, p. 3 (La.12/12/97), 704 So.2d 241, 242 (per curiam), asserting that he has thoroughly reviewed the trial court record and cannot find any non-frivolous issues to raise on appeal. Accordingly, appointed counsel now seeks to withdraw as counsel of record.

In Anders, the United States Supreme Court stated that appointed appellate counsel may request permission to withdraw if he finds his case to be wholly frivolous after a conscientious examination of it. The request must be |4accompanied by “a brief referring to anything in the record that might arguably support the appeal” so as to provide the reviewing court “with a basis for determining whether appointed counsel have fully performed their duty to support their clients’ appeals to the best of their ability” and to assist the reviewing court “in making the critical determination whether the appeal is indeed so frivolous that counsel should be permitted to withdraw.” McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 439,108 S.Ct. 1895, 1902, 100 L.Ed.2d 440 (1988).

In State v. Jyles, 96-2669 at 2, 704 So.2d at 241, the Louisiana Supreme Court stated that an Anders brief need not tediously catalog every meritless pretrial motion or objection made at trial with a detailed explanation of why the motions or objections lack merit. The supreme court explained that an Anders brief must demonstrate by full discussion and analysis that appellate counsel “has cast an advocate’s eye over the trial record and considered whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” State v. Jyles, supra.

When conducting a review of an appeal for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous. State v. Bradford, 95-929, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110. If, after an independent review, the reviewing court determines there are no non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and affirm the defendant’s conviction and sentence. However, if the court finds any legal point arguable on the merits, it may either deny the motion and order the court-appointed attorney to file a brief arguing |fithe legal point(s) identified by the court, or grant the motion and appoint substitute appellant counsel. Id.

The defendant’s appellate counsel asserts that after a detailed review of the record, he could find no non-frivolous issues to raise on appeal. Appellate counsel notes that the bill of information is in order, and that the minutes indicate that the defendant was present for all pertinent court proceedings. Appellate counsel notes that no hearing was held on the motion to suppress because, after a review of a tape of the incident, trial counsel waived this motion. Appellate counsel also notes that, as part of his plea bargain, the defendant received a sentence that is legal for the crime for which he was convicted. In addition, appellate counsel notes that trial counsel filed a motion to quash on the defendant’s predicate convictions and took the appropriate appeals. Appellate counsel stated that the motion to quash was reviewed on the merits by this Court and the Supreme Court, and that he found no non-frivolous issues upon which to base an appeal.

Along with the appellate brief and a request for an error patent review, the appellate counsel has filed a motion to withdraw as attorney of record that states that he has conducted a conscientious and thorough examination of the record and found no non-frivolous issue that arguably supports an appeal. In addition, appellate counsel has informed the defendant that he has filed an Anders brief, and if he chooses to file a pro se brief that he must inform this Court and request a copy of the record. Appellate counsel also informed the defendant that his pro se brief filed in this Court must also be sent to the district attorney. Additionally, this Court sent defendant a letter by certified mail informing the defendant that an Anders brief had been filed and that he had until May 6, 2009, to file a pro se supplemental brief. The defendant has not filed a brief in this matter.

| fiAn independent review of the record supports appellate counsel’s assertion that there are no non-frivolous issues to be raised on appeal. A review of the bill of information reveals that the defendant was properly charged. In addition, a review of all minute entries reveals that the defendant was present at all crucial stages of the proceedings. A review of the commitment/minute entry and the sentencing transcript reveals that, during the colloquy, the trial judge advised the defendant of his Boykin rights to trial by jury, to confront his accusers, and the privilege against self-incrimination. The defendant testified that he understood his rights and that by pleading guilty he would be giving up those rights. The trial judge also advised the defendant of the sentence and the fine he would receive before he made a voluntary waiver of his rights prior to pleading guilty. The trial judge accepted the defendant’s guilty plea, after finding that the defendant understood his rights and made a knowing and intelligent waiver. In addition, the sentencing transcript reveals that the defendant waived any delays before his sentence was imposed by the trial court.

With regard to the possibility of an appeal with regard to the trial court’s ruling on defendant’s motion to quash the predicate convictions, an appellate court’s denial of supervisory writs does not bar reconsideration of an issue on appeal, nor does it prevent the appellate court from reaching a different conclusion on the same issue. State v. Davis, 03-488, p. 6 (La.App. 5 Cir. 11/12/03), 861 So.2d 638, 641, writ denied, 03-3401 (La.4/2/04), 869 So.2d 874. However, judicial efficiency demands that an appellate court accord great deference to its pretrial decisions, unless it is apparent in light of the subsequent trial record, that the determination was patently erroneous and produced an unjust result. See, State v. Humphrey, 412 So.2d 507, 523 (La.1981).

|7In the present case, the defendant pled guilty without presenting any new evidence on the issue of his predicate convictions that would suggest that this Court’s prior ruling on the merits of the motion to quash was in error. Further, an independent review shows this Court’s pri- or ruling to be correct. Therefore, we find that the denial of the motion to quash would be a frivolous issue to raise on appeal. See, State v. Magee, 93-643, p. 2 (La.App. 3 Cir. 10/5/94), 643 So.2d 497, 499; State v. Doucette, 04-1539 (La.App. 3 Cir. 4/6/05), 899 So.2d 159, 162, writ denied, 05-1210 (La.12/16/05), 917 So.2d 1106,

Accordingly, a review of all pleadings in the record and all transcripts do not reveal any arguable basis for appeal. See, State v. Bradford, 95-929, at 4, 676 So.2d at 1110-11. Because appellate counsel’s brief adequately demonstrates by full discussion and analysis that he has reviewed the trial court proceedings and cannot identify any basis for a non-frivolous appeal and an independent review of the record supports counsel’s assertion, defendant’s conviction is hereby affirmed and appellate counsel’s motion to withdraw as attorney of record is granted.

ERROR PATENT DISCUSSION

The defendant requests an error patent review. However, this Court routinely reviews the record for errors patent in accordance with LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir. 1990) regardless of whether defendant makes such a request. The review reveals errors patent in this case.

In the present case, the sentence imposed as part of the plea agreement afforded the defendant an illegally lenient sentence in several respects. The trial Iscourt imposed the agreed upon sentence of ten years at hard labor with four years suspended to be served on home incarceration, as well as a fine of $5000 with $2500 of the fine to be suspended. At the time of the defendant’s conviction on August 11, 2008, LSA-R.S. 14:98(E)(l)(a), the penalty provision for fourth felony DWI offenders, provided:

Except as otherwise provided in Sub-paragraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. Sixty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment. If any portion of the sentence is suspended, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody. (Emphasis added).

However, LSA-R.S. 14:98(E)(4)(b) provided an exception where the fourth felony DWI offender had previously received a suspended sentences:

If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

In State v. Jones, 41,242 (La.App. 2 Cir. 8/23/06), 938 So.2d 1080, the defendant was convicted of a fourth offense DWI at trial and the court imposed a sentence of ten years at hard labor, suspended five years, and fined the defendant $5,000. State v. Jones, 41,242 at 1, 938 So.2d at 1081. In its error patent review, [9the appellate court noticed the illegally lenient sentence for failing to follow LSA-R.S. 14:98(E)(4)(b). The appellate court noted that pursuant to that statute a trial court cannot order that any portion of the defendant’s present sentence be served with benefit of parole, probation, or suspension of sentence when the defendant previously received a suspended sentence for a fourth DWI offense or was sentenced to substance abuse treatment. State v. Jones, 41,242 at 5, 938 So.2d at 1083. The appellate court then affirmed the defendant’s ten-year sentence, but amended the sentence to delete the suspension of five years. Id.

Likewise, in the present case, the transcript of the plea hearing, the bills of information, “Guilty Plea Statement”, and “Order and Conditions of Suspension or Probation” submitted into evidence, as proof of the defendant’s predicate offenses, indicate that the defendant previously pled guilty to two counts of DWI fourth offense and one count of DWI third offense for which he received a suspended twenty-four month sentence. Thus, the sentence imposed in this case is an illegal one and the issue presented for our review is whether it can be corrected after a negotiated plea bargain or whether the sentence is an absolute nullity.

It is well settled that a plea is considered constitutionally infirm when a defendant is induced to enter the plea by a plea bargain or by what he justifiably believed was a plea bargain, and that bargain is not kept. State v. Adams, 07-355, p. 4 (La.App. 5 Cir. 11/27/07), 973 So.2d 777, 779. It is undisputed that the appellate court has the authority to correct an illegally lenient sentence at any time, even if the defendant has entered into a plea bargain and is negatively affected by the correction. State v. Campbell, 08-1226, 15 So.3d 1076, 1078. See, LSA-C.Cr.P. art. 882. Further, the appellate court has this authority, even if the issue of the illegal sentence was not raised by the defendant or the State pursuant to LSA-C.Cr.P. art. 882. State v. Campbell, 08-1226, 15 So.3d 1076, 2009 WL 1464133, at *4.

|iflIn State v. Campbell, 08-1226 (La. App. 5 Cir. 5/26/09), 15 So.3d 1076, 1078, this Court has recently held that “not every illegally lenient sentence imposed pursuant to a plea bargain constitutes an absolute nullity.” Rather, “an illegally lenient sentence imposed pursuant to a plea bargain is only an absolute nullity if the plea bargain has an unlawful cause or a negotiated sentence prohibited by law.” Id.

In State v. Fairman, 06-366, p. 4 (La. App. 5 Cir. 10.31.06), 945 So.2d 783, 785, this Court stated:

Criminal plea agreements are analogous to contracts in that they are formed by the consent of the parties established through offer and acceptance. Louisiana courts generally use civil contract law as guidance in determining the validity of plea bargains. State v. Givens, 99-3518 (La.1/17/01), 776 So.2d 443, 445; State v. Robinson, 01-946 (La.App. 5 Cir. 1/29/02), 807 So.2d 1085, 1089 writ denied, 02-0638 (La.11/1/02), 828 So.2d 563. Under our civil code an obligation cannot exist without a lawful cause. La. C.C. art. 1966. La. C.C. art. 1968 provides that “[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy.”
The plea bargain in the instant case afforded the defendant an illegally lenient sentence. Under our law, such an agreement is an absolute nullity which cannot be confirmed on appeal. State v. Chisley, 03-426 (La.App. 5 Cir. 10/15/03), 860 So.2d 45, 51, writ denied, 03-3358 (La.4/2/04), 869 So.2d 874; State v. Guilbeaux, 749 So.2d at 19.

In similar circumstances, this Court has vacated illegal sentences imposed by the trial court as part of a plea bargain but reserved defendant’s right to withdraw his guilty plea. State v. Quinones, 03-907 (La.App. 5 Cir. 12/30/03), 864 So.2d 824; State v. Hines, 07-313, (La.App. 5 Cir. 11/27/07), 970 So.2d 707; State v. Smith, 08-528, p. 2 (La.App. 5 Cir. 1/13/09), 1 So.3d 802.

|nIn the present case, since the defendant previously received the benefit of suspension of sentence on both third and two fourth offender DWI(s), we find that LSA-R.S. 14:98(E)(4)(b) expressly precludes the defendant from receiving the partially suspended sentence and, therefore, the defendant received an illegally lenient sentence as part of his plea agreement. In addition, we find that the defendant’s sentence is prohibited by law, i.e., LSA-R.S. 14:98(E)(4)(b), and, therefore, is an absolute nullity that cannot be confirmed on appeal. See, State v. Campbell, 08-1226, 15 So.3d 1076, 2009 WL 1464133, at *4.

DECREE

For the reasons assigned herein, the conviction of Jaime Magana is hereby affirmed. We vacate the defendant’s sentence and remand the case to the district court in order that the defendant might be sentenced according to the law, reserving to defendant the right to withdraw his guilty plea. Appellate counsel’s motion to withdraw is granted.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING; MOTION TO WITHDRAW GRANTED.

      .On May 30, 2008, the defendant sought review of this ruling on the basis that the guilty pleas were infirm, and this court denied the writ, stating that "the transcript and the defendant’s waiver of rights form, taken together, provided sufficient proof of a knowing and voluntary waiver.” See, State of Louisiana v. Jaime Magana, 08-K-453 (La.App. 5 Cir. 6/26/08) (unpublished writ) The Louisiana Supreme Court subsequently denied the defendanVrelator's writ. See, State of Louisiana v. Jaime Magana, 08-KK-1695 (La.4/24/09).

      . 338 So.2d 584 (La.1976).

      . In 07-5831, the defendant pled guilty to resisting an officer by flight and battery of a police officer. The defendant was sentenced to six month on each misdemeanor count. That sentence was ordered to run concurrently with the sentence in this case.

      . The procedure set forth in Benjamin for compliance with Anders was sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981, pp. 1-2 (La.4/28/95), 653 So.2d 1176, 1177 (per curiam), and adopted by this Court in State v. Bradford, 95-929, pp. 3-4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108, 1110.

      . The United States Supreme Court most recently reaffirmed its position in Anders in Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

      . We note that the defendant's sentence is illegally lenient for several reasons, including the suspension of $2,500 of the $5,000 fine. In addition, as noted by the State, the trial judge failed to order an evaluation or that the defendant participate in substance abuse treatment pursuant to LSA-R.S. 14:98(E)(l)(b)(i-ii), sixty days of the defendant’s sentence be served without benefit of probation, parole, or suspension of sentence pursuant to LSA-R.S. 14:98(E)(l)(a), and the defendant’s vehicle be seized, impounded and sold at auction pursuant LSA-R.S. 14:98(E)(2)(a). Further, the trial judge failed to order that the defendant perform 48 hours of community service pursuant to LSA-R.S. 14:98(E)(l)(b). However, based on our holding setting aside the sentence as an absolute nullity, these errors are moot and require no corrective action at this point.

      . The general rule is that the law in effect at the time of the commission of the offense is determinative of the penalty the defendant must receive. However, Louisiana Supreme Court found the general rule did not apply to LSA-R.S. 14:98 where the specific statutory provisions required the applicable law was the law in effect at the time of defendant's conviction. See, State v. Mayeux, 01-3195, pp. 6-8 (La.6/21/02), 820 So.2d 526, 530-531.