author: DOWNING, J. McCLENDON, J.,

text:
    AFRICAN METHODIST EPISCOPAL CHURCH, INC. v. Rev. Larry STEWART.
    No. 2009 CA 0405.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2009.
    Writ Denied Dec. 18, 2009.

      Thomas J. Hogan, Jr., Hammond, LA, for Defendants/Appellants, Larry Stewart and Rising Star Community Church.
    Cassandra Butler, Independence, LA, for Plaintiff/Appellee, African Methodist Episcopal Church, Inc.
    Before DOWNING, GAIDRY and McClendon, jj.
   DOWNING, J.

| .¿Reverend Larry Stewart, pastor of the Rising Star Community Church (Rising Star), and Rising Star appeal a judgment decreeing that title to the disputed property at issue is vested in the Annual Conference of African Methodist Episcopal Church in Louisiana and Mississippi (L & M A.M.E.), the denominational hierarchy. For the following reasons, we reverse the trial court judgment in this regard, and we declare Rising Star to be owner of the subject property.

PERTINENT FACTS AND PROCEDURAL HISTORY

This matter returns to this court after we raised on our own motion and granted the peremptory exception of nonjoinder of a party under Articles 641 and 642. We noticed that the record owner of the immovable property at issue was “the Rising Star A.M.E. Church, an unincorporated religious association, herein represented by Eldon J. Pipes, Treasurer, and Robert Austin, Trustee, and members,” and that this record owner was not named as a defendant. African Methodist Episcopal Church, Inc. v. Stewart, 07-1303 (La.App. 1 Cir. 3/26/08) (unpublished), 978 So.2d 1259 (Table). L & M A.M.E. had filed suit against Reverend Stewart for injunctive and declaratory relief. This court observed that the record owner is a necessary party under La. C.C.P. art. 641(1) for determination of ownership of the immovable property at issue. Id. Accordingly, this court vacated a portion of the trial court judgment signed January 16, 2007, insofar as it declared ownership of the immovable property. Pursuant to this court’s instruction, L & M A.M.E. amended the petition to name Rising Star as a defendant. Id. Rising Star answered the amended petition admitting that Rising Star is named as a defendant and that a named person was a proper person for service.

|;iAt a hearing in September 2008, the parties stipulated that no new evidence would be introduced and asked the trial court to rule on the evidence previously submitted. Accordingly, the trial court again entered judgment declaring, in pertinent part, that title to the subject property was vested in the L & M A.M.E.

Reverend Stewart and Rising Star now appeal alleging in one assignment of error generally that the trial court failed to apply neutral principles of law by disregarding evidence showing that the denomination failed to carry its burden of proof.

DISCUSSION

Courts resolve disputes involving religious organizations employing “neutral principles of law” where there is no issue of “doctrinal controversy” or of “interpretation or evaluation of ecclesiastical doctrine or practices.” See Fluker Community Church v. Hitchens, 419 So.2d 445, 447 (La.1982). We must “examine certain religious documents, such as a church constitution, with an attitude of “neutrality and non-entanglement.” Id. We must apply “the neutral principles which are evoked by our examination of the documents in purely secular terms.” Id. 419 So.2d at 448.

Here, Rising Star concedes that it was an A.M.E. church subject to control of the hierarchical A.M.E. organization. It argues, however, that under the A.M.E. rules, the title to the property at issue remains with the congregation. L & M A.M.E. also asserts that “[t]he A.M.E. Church’s rules should dictate.” Both parties argue that Flulcer’s principles control this controversy. We, therefore, review the evidence in the record, including an excerpt from the African Methodist Episcopal Discipline (Discipline), employing neutral principles of law to determine the rights of the respective parties. Church disciplines and regulations should be considered in determining property disputes. As this court observed in Louisiana District, Church of the Nazarene v. Church of the Nazarene, 132 So.2d 667, 680 (La.App. 1 Cir.1961):

Since in the various religious sects or denominations local congregations submit to a greater or lesser degree to the authority of the general church, it necessarily follows the constitution, rules, regulations |4and discipline of the general church which the local subordinate has accepted and embraced willingly in each case determine the extent of the authority of the local church to control church property whether held by the local group in its own name or held in trust for the general organization.

The parties offered the Discipline into evidence at trial as a joint exhibit. We first observe that the Discipline entered into evidence here appears to differ from that utilized in Fluker, although both cases involve A.M.E. churches. The Discipline before us appears to be organized differently. In Fluker, the court did not consider the provision at issue here regarding control of property in the absence of an “in trust” clause. We do not know if such provision was contained in the A.M.E. Discipline when Fluker was decided in 1982. Nor do we know how the Discipline has been amended.

The Discipline before us contains a requirement that property held by “the local churches” shall be held “IN TRUST” for the African Methodist Episcopal Church, Inc. The act of sale at issue has no “IN TRUST” clause.

The Discipline, however, contains another rule specifically governing the relationship between the parties in the absence of an “IN TRUST” clause in the act of sale. This rule states that the absence of an “IN TRUST” clause “shall not exclude a local church from or relieve it of its Connectional character and responsibilities,” nor shall the absence of the “IN TRUST” clause “excuse or absolve” the local congregation from its responsibilities and accountability,” “provided” the following conditions are met:

|sl. Use of the name, customs, polity, or literature of the A.M.E. Church, Inc., in such a manner as to be known as a part of the A.M.E. Church connection.
2. Conveyance of said property to the trustees of a local church or agency to the A.M.E. Church, Inc.
3. The acceptance of the pastorate of ministers appointed by a bishop of an episcopal district or annual conference of the A.M.E. Church, Inc.
4. The payment of conference assessments or dues.
5. The participation and enrollment of the church as a member of the connection of the A.M.E. Church, Inc., by said local church in the Quarterly Conference and the Annual Conferences.

Rising Star concedes that it exhibited the characteristics outlined in provisions 1, 3, 4, and 5. It asserts, however, that since no evidence exists of its compliance with provision 2, control of the property at issue never transferred to L & M A.M.E.

Under the terms of the Discipline, the L & M A.M.E. retains control of property if the local church complies with the five provisions. We agree with Morning Star that L & M A.M.E. has failed to establish compliance with provision 2. This language, “Conveyance of said property to the trustees of a local church or agency to the A.M.E. Church, Inc.,” is at best ambiguous. Even so, nothing in the act of sale can be interpreted to convey the property “to the A.M.E. Church, Inc.” The property is titled to “the Rising Star A.M.E. Church, an unincorporated religious association, herein represented by Eldon J. Pipes, Treasurer, and Robert Austin, Trustee, and members.” The authentic act of sale was executed by Eldon J. Pipes and Robert Austin, on behalf of the church. Conveyance is to the local church, but not “to the A.M.E. Church, Inc.”

|fiWhen asked what provision 2 meant, Bishop Henning of the L & M A.M.E. explained that provision 2 referred to a “required statement” that is “done at the time the church is purchased.” No such statement is in the record, although L & M A.M.E. could have required one prior to providing ministers and services. Also included in the Discipline is a Section E, entitled “Form of Deed.” This appears to be a draft of the required statement referenced by Bishop Henning in that it recites its necessity based at least partly because conveyance documents “are devoid of declarations appropriate to compliance” with specific provisions of The Doctrine and Discipline of the African Methodist Episcopal Church.” The specified provisions of the Doctrine and Discipline were not entered into evidence. Regardless, no such “deed” was entered into evidence.

Louisiana has legislatively adopted a presumptive rule of majority representation with respect to alienation or encumbrance of an unincorporated non-profit association’s immovable property, defeasible upon a showing of a contrary intention in its constitution, charter, by-laws, rules, or regulations under which it is organized, governed, and exists. Fluker, 419 So.2d at 447-48. See also La. R.S. 9:1051. Here, L & M A.M.E. argues that all five provisions are met and that it retains the right to control the property. Applying the neutral principles of law that are evoked by our examination of the documents and evidence in purely secular terms, however, we conclude that L & M A.M.E. has failed to establish compliance with a necessary provision of the Discipline. L & M A.M.E.’s Discipline, therefore, does not contain 17regulations that effectively vest control of the property at issue in it under the facts of this case. Accordingly, we conclude that L & M A.M.E. failed to meet its burden of overcoming this presumption. To the extent the trial court found otherwise, we conclude that it was manifestly erroneous, and we will reverse the judgment of the trial court in this regard. Rising Star’s assignment of error has merit.

DECREE

For the foregoing reasons, we reverse and vacate the judgment of the trial court insofar as it grants judgment in favor of the African Methodist Episcopal Church in Louisiana and Mississippi, decreeing that title to the following property is vested in it:

Two (2) certain lots or parcels of ground located in the Parish of Tangipa-hoa, State of Louisiana, and being more particularly described as follows:
LOTS 11 AND 12, BLOCK 7, Arnold Addition to Natalbany, East Side, in the Parish of Tangipahoa, State of Louisiana, being the same property acquired by the Rising Star A.M.E. church by deed recorded at COB 5B2 page 089, Records of Tangipahoa Parish.

Further, IT IS ORDERED, ADJUDGED AND DECREED that RISING STAR COMMUNITY CHURCH, an unincorporated religious association, be declared full owner of the described property in accordance with La. R.S. 9:1051.

Costs of this appeal are assessed against the Annual Conference of African Methodist Episcopal Church in Louisiana and Mississippi.

REVERSED; RENDERED.

McCLENDON, J. concurs and assigns reasons.

McCLENDON, J.,

concurs and assigns reasons.

hi agree with the majority that Rising Star A.M.E. Church (Rising Star) is the owner of the immovable property at issue herein. Said issue was directly answered by Fluker Community Church v. Hitchens, 419 So.2d 445, 446 (La.1982), wherein the supreme court held that ownership is determined by the named deed holder. Since the deed in this matter places title to the property in Rising Star and no one questions the validity of that instrument, ownership of the property rests with Rising Star, and no further analysis is necessary. Thus, most of the majority’s analysis is an exercise unnecessary to the only issue raised in this appeal, i.e., ownership. In this matter, unlike the Fluker case where possession and not ownership was at issue, ownership was the only issue pled. The question of whether the Annual Conference of African Methodist Episcopal Church in Louisiana and Mississippi (L & M A.M.E.) has the right to control the actions of the title holder of the property, and thereby the right to control the use of the property, is not before us. L & M A.M.E. amended its petition to ask for only a declaratory judgment on the ownership of the building and the property. It did not ask for a determination of the right to control or possess. Accordingly, all discussion regarding the L & M A.M.E.’s authority over Rising Star based on the African Methodist Episcopal Discipline (Discipline) of the general church is merely 12dicta, and further, it is arguably incorrect. In the absence of an “in trust” clause in the act of sale, as is the case here, five conditions are required to keep the local church’s connectional character and responsibilities to the general church. The isolated manner in which the majority reads the second provision of the Discipline essentially negates the necessity of the other four provisions. The majority’s statement that there is nothing in the act of sale that can be interpreted to convey the property “to the A.M.E. Church, Inc.” fails to read provision 2 in para materia with the remaining provisions. This was clearly not the intent of the Discipline.

Nonetheless, because the act of sale clearly places title to the property in dispute in the hands of Rising Star, I respectfully concur.

      . This church was formerly named the Rising Star A.M.E. Church. The congregation changed its name when it renounced affiliation with the hierarchical denomination.

      . In the January 17, 2007 judgment, the trial court ruled in favor of L & M A.M.E. It entered judgment (1) decreeing a permanent injunction against Rev. Stewart and Rising Star, and (2) declaring ownership of the subject property in L & M A.M.E. The injunction was not appealed, although Rising Star was not a party to that judgment. Nothing in the record shows that it was served or waived service. As this court observed in its prior opinion, the judgment as it applies to Rising Star appears to be unenforceable, African Methodist Episcopal Church, Inc. v. Stewart, 07-1303, p. 2 n. 2. As to Rising Star, the prior judgment appears to be an absolute nullity. See La. C.C.P. art. 2002(A)(2). This issue, however, is not before us and we do not decide it.

      .The exact language of Section A, entitled "Purchase, Transfer” is as follows:
      The African Methodist Episcopal Church, Inc., is organized and functions solely as a connectional church. The title(s) to all real, personal and mixed property held by the General. Annual Conference level or by the local churches, shall be held IN TRUST for the African Methodist Episcopal Church, Inc., and subject to the provisions of The Doctrine and Discipline of the African Methodist Episcopal Church.
      However, in the absence of an IN TRUST clause as indicated herein, in deeds, and documents of conveyances previously executed shall not exclude a local church from or relieve it of its Connectional character and responsibilities to the African Methodist Episcopal Church, Inc., nor shall the lack of the IN TRUST phrase excuse or absolve a local congregation, church agency, or Board of Trustees of its responsibilities and accountability to the African Methodist Episcopal Church, Inc., provided, the intent and desires of the founders and of the later congregations or Board of Trustees have all demonstrated the following conduct:
      1. Use of the name, customs, polity, or literature of the A.M.E. Church, Inc., in such a manner as to be known as a part of the A.M.E. Church connection.
      2. Conveyance of said property to the trustees of a local church or agency to the A.M.E. Church, Inc.
      3. The acceptance of the pastorate of ministers appointed by a bishop of an episcopal district or annual conference of the A.M.E, Church, Inc.
      4. The payment of conference assessments or dues.
      5. The participation and enrollment of the church as a member of the connection of the A.M.E. Church, Inc., by said local church in the Quarterly Conference and the Annual Conferences.

        (Emphasis added.)

      . La. R.S. 9:1051 provides:
      A. Corporations unauthorized by law or by an act of the legislature enjoy no public character, although these corporations may acquire and possess estates and have common interests as well as other private societies.
      Unless otherwise provided by its constitution, charter, bylaws, rules, or regulations under which it is organized, governed, and exists, any unincorporated nonprofit association may alienate or encumber title to immovable property to any person. For the purposes of this article, immovable property includes, without limitation, mineral rights, predial ser-vitudes, and predial leases, and a transaction to alienate or encumber shall include, without limitation, transactions to mortgage, hypothe-cate, donate, or transfer title to immovable properly. Any such transaction shall be authorized by resolution adopted by a majority of the members of the association who vote on the resolution at a special meeting called and held for that purpose. The resolution may designate a person or persons to act as agent for the purpose of effectuating the transaction. Notice of the special meeting, including the date, time, and place of the meeting and the substance of the contemplated resolution, shall be published, on two separate days as least fifteen days prior to the date of the meeting, in the official journal of the parish in which a majority of the members reside or, if none, in a newspaper of general circulation in the parish. A copy of the resolution and proof of publication as required herein shall be attached to each act effectuating the transaction.

      . Cf. Fluker, 419 So.2d at 448 where the supreme court concluded that "the presumptive rule of majority control of use of [the property] has been overcome in favor of the hierarchical organization by provisions contained in the discipline and in the deed of acquisition." (Emphasis added.)

      . See La. R.S. 13:4434 and La. R.S. 13:4435 regarding registration of a decree rendered by a court of appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Captain Robert MALONE, JA, Louisiana Army National Guard.
    No. 2009 KW 0060.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 18, 2009.

      John B. Wells, for Relator.
    Dirk J. Thibodeaux, for Respondent.
    Before: PETTIGREW, McDONALD, and HUGHES, JJ.
   PER CURIAM.

12Relator, a member of the Judge Advocate Corps of the Louisiana National Guard, seeks review of a contempt sanction imposed against him by a military judge. For the reasons which follow, the writ application is granted and the ruling of the military judge is reversed. Background

Relator served as trial counsel (the prosecutor) in a special court-martial convened against two members of the Louisiana National Guard. At the beginning of the special court-martial proceedings relator made the required statement (to satisfy the provisions of Article 27(B), LCMJ, La. R.S. 29:127(B)) that he and all members of his staff were qualified and certified to serve as trial counsel and took the mandatory oath (as provided in Article 42(A), LCMJ, La. R.S. 29:142(A)) that neither he nor any member of the prosecution staff had acted in any manner which might tend to disqualify them in the court-martial.

Approximately six weeks after the court-martial proceedings were concluded, the military judge sua sponte issued an order to relator to show cause why relator should not be found guilty of contempt of court for his lack of candor to the tribunal at the court-martial. The contempt proceedings were initiated after the military judge received from the Louisiana National Guard Judge Advocate a report indicating that relator was ineligible to practice law in Louisiana when he served as trial counsel in the special court-martial and made the statement of qualification and certification and the mandatory oath. Pursuant to Article 39, LCMJ, La. R.S. 29:139, the military judge scheduled an ancillary session to the special court-martial to address the contempt issue.

At the Article 39 session the following evidence was introduced: transcripts of the depositions of Major Connell Archey, a command judge advocate who supervised relator, and Colonel Jerry Crooks, the deputy commander and full time administrator of relator’s brigade, a letter from the Louisiana Supreme Court addressed to the Louisiana National Guard verifying the periods of relator’s ineligibility to practice law in Louisiana, a copy of the Louisiana Supreme Court Rule 30 regarding the scope of continuing legal education (CLE), a certificate of relator’s completion of the Judge Advocate Advanced Course, and a certificate of relator’s good standing from the United States Court, Western District of Louisiana. Relator testified in his own behalf. At the conclusion of the hearing, lathe military judge found relator to be in violation of his duty of candor to the court and ordered that he pay a fine of $100.

Relator sought supervisory review of the military judge’s ruling. This Court issued an order directing the state to file a response to the writ application. The state complied with this Court’s order, and relator filed a reply to the state’s opposition.

Military Judge’s Ruling

The military judge concluded relator violated his duty of candor to the court and ordered that he pay a fine of $100.00 to the State Military Department within 7 days or serve 24 hours in the Dabadie Correctional Center at Camp Beauregard. While the judge did not specifically state that relator was found to be in contempt, the amount of the fine imposed was consistent with the maximum fine for a contempt violation, as provided in Article 48, (LCMJ), La. R.S. 29:148.

In addressing the issue of whether relator was disqualified from serving as trial counsel during the court-martial, the military judge concluded that relator was dishonest in several communications with the command judge advocate on multiple occasions, failed to pay certain required dues and assessments, failed to provide certain required disclosures and authorizations, failed to complete the required continuing legal education (CLE) hours for 2007, and failed to comply with the command judge advocate’s behavioral expectations. The judge stated that any one of those actions or inactions would probably have motivated the command judge advocate to relieve relator of his assignment as trial counsel, but the judge found that with the exception of relator’s dishonesty, none would have disqualified him from serving as trial counsel.

With regard to the issue of whether relator was exempt from completing the required CLE hours in 2007, the judge noted that relator was on active duty though November 15, 2008, and that La. R.S. 29:419 provided relator with an exemption from dues and CLE requirements during active service and thus, during the full year of 2007.

In imposing the sanction, the military judge further stated he did not believe relator understood that the supervising judge advocate was responsible for his socialization to the cultural norms of the Judge Advocate General (JAG) Corps. The judge cited an October 2008 memorandum in which relator was informed of his suspension from JAG duties and removal from the deployment list as a result of a preliminary screening inquiry pursuant to an army regulation. The judge further |4noted that although relator appeared sorry he was caught, the judge was not convinced relator regretted his actions. Noting that relator had a string of dishon-esties, the judge indicated relator should have acknowledged his wrongs and accepted responsibility.

In conclusion, the military judge further reminded relator of the Army’s values of loyalty, duty, respect, selfless service, honesty, integrity, personal courage and stated that the these values were consistent with a lawyer’s duty of candor to the court.

General Law

The Louisiana Code of Military Justice, La. R.S. 29:101, et seq., applies to all members of the state military forces when not subject to the Uniform Code of Military Justice and while in a duty status or under a lawful order to be in a duty status. Under Article 15, LCMJ, La. R.S. 29:115, any commanding officer may impose specified non-judicial disciplinary punishments on certain personnel for minor offenses without the intervention of a court-martial. The Code also provides for three types of courts-martial: general court-martial, special court-martial, and summary court-martial. See Arts. 16-20, LCMJ, La. R.S. 29:116-120. A special court-martial may not try a commissioned officer, and a summary court-martial shall not have jurisdiction over officers. See Arts. 19 <& 20, LCMJ, La. R.S. 29:119-120.

At the time of the court-martial and the Article 39 session, the military contempt article, Article 48, LCMJ, La. R.S. 29:148, provided as follows:

A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for thirty days or a fine of one hundred dollars, or both.

2009 Acts 169, § 1 amended Article 48 which now provides as follows:

A. A military judge of a special or general court-martial has the duty to require that court-martial proceedings shall be conducted with dignity and in an orderly and expeditious manner and to control the proceedings so that justice is done. A military judge may hold contempt hearings at any time during or after the completion of a court-martial. As such, the military judge of a special or general courtmartial shall have the same powers as that of a judge for a state district court for punishments of contempt of court as provided for in the Code of Criminal Procedure.
B. A court-martial, provost court, or military commission may punish for contempt any person who uses any menacing word, sign, or ^gesture in its presence, or who disturbs its proceedings by any riot or disorder.
C. The punishment may not exceed confinement for thirty days or a fine of one hundred dollars, or both.

Did the Military Judge Court Have Jurisdiction Over the Contempt Proceeding Under Article 39, LCMJ, La. R.S. 29:139?

In this matter, relator’s contempt proceeding was conducted after the court-martial proceedings ended. The notice issued by the military judge indicates the contempt proceeding was not a court-martial, but an ancillary proceeding initiated pursuant to Article 39, LCMJ, La. R.S. 29:139, which gives a military judge the authority to call the court into session for various reasons. Article 39 provides in pertinent part:

A. At any time after the service of charges which have been referred for trial to a court-martial composed of a military judge and members, the military judge may, subject to R.S. 29:135, call the court into session without the presence of the members for the purpose of:
(4) performing any other procedural function which may be performed by the military judge under this code or under rules prescribed pursuant to R.S. 29:136 and which does not require the presence of the members of the court.
These proceedings shall be conducted in the presence of the accused, the defense counsel, and the trial counsel and shall be made a part of the record.

Article 36, LCMJ, R.S. 29:136, provides that the trial procedure and rules of evidence in military eases shall be prescribed by the Governor. (Executive Order BJ 2008-19, signed by Governor Jindal on May 30, 2008 provided that the 2008 Edition of the Manual for Courts-Martial, United States, shall provide the procedures and modes of proof for cases in Louisiana military courts.) Article 36 further provides that the procedures, so far as considered practical, shall apply the principles of law and rules of evidence generally recognized in the trial of criminal cases, but which may not be contrary to or inconsistent with the Louisiana Code of Military Justice. Article 39 requires the presence of the “accused” and although the contempt proceedings herein were not conducted in the presence of the | (¡defendants who were accused in the court-martial, relator, who was the accused in the contempt proceeding, was present.

The provisions of Louisiana Code of Military Justice Articles 39 and 48 are almost identical to the language of Uniform Code of Military Justice Articles 39 and 48. In Summary Contempt Power in the Military: A Proposal to Amend Article ⅛8, UCMJ (1999), 160 Mil. L.Rev. 158, author Colonel David Anderson discussed the deficiencies of the military summary eon-tempt power, suggested remedies, and noted that a “fix” would be to amend the contempt article in the Uniform Code of Military Justice to remove the contempt power from a court-martial and give it specifically to a military judge. The author quoted from a commentary by the drafters of the 1984 Manual for Courts-Martial which indicated that under Article 39 the military judge acts as the court-martial within the meaning of the contempt article, as follows in pertinent part:

Under Article 39(a) the military judge may “call the court into session without the presence of the members,” and the military judge therefore acts as the court-martial within the meaning of Article 16 [courts-martial] and 48 [contempt].

Citing United States v. Burnett, 27 M.J. 99 (C.M.A.1988), as authority, the state argues that the contempt proceedings may be held after the court-martial is completed. In Burnett the court-martial proceedings were suspended while a contempt hearing was held. The reviewing court stated in dicta that while the Manual for Courts-Martial contemplates that the trial shall be suspended while the contempt proceedings take place, a military judge may delay the proceedings until the end of a trial. Burnett, 27 M.J. at 107.

Because the contempt proceeding was a procedural function and ancillary to the court-martial, we conclude that the military judge had the authority to call the court into session for the contempt proceeding after the conclusion of the court-martial.

Did Relator’s Conduct Constitute Contempt Under Article 48?

The language of the definition of contempt in Article 48 was unchanged by the 2009 amendment and is unambiguous and clear. Under the article, contempt conduct encompasses menacing words, signs, or gestures. The word menacing is defined in Webster’s II New College Dictionary as “to threaten” and “to be a threat to.” Contempt may also be conduct which disturbs the court’s proceedings by any 17riot or disorder. Disturb is defined in Webster’s II New College Dictionary as “to trouble or destroy the tranquility or serenity of,” “to trouble emotionally or mentally: upset,” and “to interfere with: interrupt.” Disorder is defined as “lack of order or regular arrangement: confusion” and “a breach of civic order or peace: public disturbance.” Relator’s conduct in making an alleged false statement regarding his certification to serve as counsel in the court-martial does not appear to fall within the type of conduct clearly prohibited and envisioned by the words of the military code’s contempt article.

The language of the contempt article in the Louisiana Code of Military Justice is almost identical to that in the Uniform Code of Military Justice. The previously mentioned law review article by Colonel Anderson discusses the concern that courts and commentators have expressed about the restrictive definition of contempt in the Uniform Code of Military Justice, as follows:

By the plain language of the statute, the proscribed conduct includes only a “menacing word, sign, or gesture,” or a disturbance of a court proceeding by a “riot or disorder.” If this language is strictly interpreted, contemptuous conduct under the statute may be limited to conduct that is “riotous, threatening, or confrontational.”

160 Mil. L. Rev. at 202.

The article further notes that Congress did not use the broader language in Article 48 that had been employed in the contempt statute in the federal criminal code.

In United States v. Praeger, 149 F. 474, 485 (W.D.Tex.1907), the United States district court held that the military court was without contempt power to punish Prae-ger, a civilian witness in a court-martial, for his refusal to testify. The court noted that the contempt statute provided that the court-martial may punish at its discretion any person who “uses any menacing words, signs or gestures in its presence, or who disturbs its proceedings by any riot or disorder.” However, the district court found that the military court had no final jurisdiction over a civilian who was subpoenaed to testify before it nor power to punish the witness for contempt for refusing to testify. The court concluded that there was another remedy in the form of a criminal prosecution against the witness. In Praeger, like in the instant case, the person cited with contempt did not use any menacing word, sign or gesture in the court’s presence nor disturbed the court’s proceedings by any riot or disorder.

|Jn the instant case, the military judge concluded relator violated the duty of candor to the court. Relator was essentially found to be in contempt for a violation of this duty, not for the use of any threat, disturbance, trouble, or disorder in the court’s presence or during the court’s proceedings. Thus, there does not appear to be any justification for finding that relator’s conduct constituted a violation of La. R.S. 29:148, LCMJ Article 48, the military contempt article.

Did the Military Court Have Inherent Contempt Power?

Since a violation of the duty of candor to the court is not punishable under the definition of contempt in Article 48, the military court must have inherent contempt power to find relator in contempt.

The state cites United States v. Gray, 14 M.J. 551, 552 (A.C.M.R.1982) as authority for finding the court had inherent contempt power. In Gray, the accused was a private convicted of disrespect to a commissioned officer and communicating a threat. He was sentenced to a bad-conduct discharge, which was approved by the convening authority. The charges arose when the private pointed his finger at the trial counsel during a previous court-martial and said either “I am going to get you,” or “You are going to get it.” The language was spoken softly but distinctly to the trial counsel, who had just completed an examination of the private’s wife concerning an assault by the private. The military judge was unaware of the private’s conduct until the trial counsel informed him. The accused contended that he had been denied equal protection of the law since his conduct should have been punished as a contempt under Article 48, which carried a substantially lesser penalty-

On appeal, the U.S. Army Court of Military Review stated, in dicta, that it was “not convinced that the softly spoken threat uttered by the [private] to the trial counsel, which was not heard by any other parties to the trial, constitutes the type of disruptive conduct contemplated by Article 48.” The court further stated:

The language of the military contempt statute has always been more limited than the traditional contempt powers of civilian courts. Article 48 had its genesis in Article 14 of the 1776 Articles of War. Through numerous revisions, the Articles of War and the subsequent Uniform Codes of Military Justice continued to describe the proscribed conduct in terms of menacing words, signs and gestures, disorder or riot. See generally McHar-dy, Military Contempt Law and Procedure, 55 Mil.L.Rev. 131 (1972). As pointed out by Winthrop, “Thus language, however disrespectful, if it be not of a minacious character, cannot ... be made the occasion of summary proceedings and punishment as for a|flcontempt-a defect certainly in the statute.” Ochstein, Contempt of Court, 16 JAG J. 25, 27 (1962), quoting 1 W. Winthrop, Military Law and Precedents 463 (2d ed. 1896). In this case there was no menace or affront to the military judge and no disruption. When the trial counsel brought the threat to the attention of the military judge, he chose not to exercise his summary contempt powers.

The Gray court further noted that the then current Manual for Courts-Martial carried forward the traditional concept that a court-martial has the discretion to use the summary contempt power, initiate charges, or report the matter to the proper commander for his action, whichever it considered appropriate for the conduct involved.

It has been noted in a more recent case that a military judge’s contempt power is incomplete and remains “oddly restrained and inconsistent with the other evolutionary advances.” United States v. Mahoney, 36 M.J. 679, 690 n. 10 (A.F.C.M.R.1992). As further support for the lack of inherent contempt power in military courts, 57 C.J.S. Military Justice § 142 (1992) provides in pertinent part:

While there is authority that [Article 48] is not an exclusive remedy for unlawful conduct which occurs during a court-martial, there is also authority that a court-martial does not have inherent authority to protect its proceedings against disruption beyond the contempt authority established in [the military code provision.]

In United States Navy-Marine Corps. Court of Military Review v. Carlucci, 26 M.J. 328, 335 (C.M.A.1988), the Court of Military Appeals acknowledged that Congress had not explicitly granted it contempt powers, but stated it may have inherent authority to punish for contempt. The opinion further noted that Congress might want to give attention to that omission in the Uniform Code of Military Justice, but the Code apparently has not been amended to address that omission.

Louisiana military courts, like United States military and bankruptcy courts, derive their power from statute. Federal and state district courts are constitutionally created and are accorded their inherent powers from U.S. Const, art. Ill and La. Const, art. V, § 2, respectively. Prior to the recent amendment of Louisiana Code of Military Justice Article 48, Louisiana military courts were not vested with the inherent power to punish for contempt of court as are courts that are created in the Louisiana Constitution. See La. Const, art. V, § 2.

Although we acknowledge that the contempt procedure possibly subjected relator to a lesser form of punishment than other remedies available to the state to | ^sanction relator for his conduct, we find that in this case relator’s conduct did not constitute contempt under Article 48 and that the military court lacked inherent power to punish for contempt.

Accordingly, relator’s writ application is granted and the military judge’s finding at the hearing on the rule to show cause why relator should not be found guilty of contempt of court for his lack of candor to the court and order that relator pay a fine or serve time in the correctional center at Camp Beaurgard are reversed.

      . We do not address the issue of whether the recent amendment of Article 48, LCMJ, La. R.S. 29:148 (granting military courts the same inherent power to punish for contempt as district courts) is constitutional.


author: PARRO, J. McCLENDON, J.,

text:
    In the Matter of the Succession of Gerald HENDRICKS.
    No. 2008 CA 1914.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 23, 2009.
    Rehearing Denied Nov. 28, 2009.

      Winston G. DeCuir, Sr., Brandon J. De-Cuir, DeCuir, Clark & Adams, L.L.P., Baton Rouge, LA, for Appellant, Marie Melinda Juge Hendricks.
    Marvin E. Owen, Baton Rouge, LA, for Appellees, Jamie Franklin, Donnie Franklin, and Sherall Franklin.
    Before: PARRO, McCLENDON, and WELCH, JJ.
   PARRO, J.

2The testator’s surviving spouse appeals a judgment pertaining to findings of the invalidity of a testament and the revocation of another testament, both of which had been executed by her husband. The testator’s children answered the appeal, seeking reversal of the portion of the judgment that voided and recalled letters of independent administration which been issued to them. For the following reasons, we affirm.

Facts and Procedural Background

On November 27, 2007, Gerald Hendricks (Gerald) died, leaving a notarial testament dated July 31, 2006. At the time of his death, Gerald was married to Melinda Hendricks (Melinda), and, in addition to Melinda, his three sisters were named as legatees in the 2006 testament. In January 2008, Melinda filed a petition to probate Gerald’s testament and for appointment as the testamentary executrix. Melinda was appointed as executrix, and letters testamentary were issued to her on January 29, 2008. Shortly thereafter, Gerald’s three surviving children from a former relationship — Donnie Franklin, Jamie Franklin, and Sherall Franklin (collectively, the Franklins) — filed a rule to show cause why Gerald’s notarial testament should not be declared null and void pursuant to LSA-C.C. art. 1573, because one of the pages of the testament had not been signed by Gerald as required by LSA-C.C. art. 1577. Following a March 14, 2008 hearing, the court orally ruled that Gerald’s 2006 testament was null and void ab initio, and Melinda was removed as executrix.

On March 18, 2008, the Franklins filed a pleading to have Gerald’s succession declared to be intestate and for the appointment of themselves as independent administrators. The next day, Melinda filed an opposition to the appointment of independent administrators, as well as a petition to file a testament by Gerald dated August 27, 1993, and for the appointment as testamentary executrix. The Franklins |sopposed Melinda’s petition, seeking to have the 1993 testament invalidated pursuant to LSA-C.C. art. 1607. Additionally, upon discovery that two of the legatees named in the 2006 testament had not been properly served, the Franklins requested that those legatees be ordered to show cause why the 2006 testament should not be declared null and void due to Gerald’s failure to follow certain codal requirements. A hearing was held on all of those matters on May 15, 2008.

In a May 27, 2008 judgment, the trial court (1) declared Gerald’s 2006 testament to be null and void ab initio; (2) voided and recalled the letters testamentary issued to Melinda on January 29, 2008; (3) declared Gerald’s 1993 testament to have been revoked by an authentic act, ie., the annulled 2006 testament; (4) recalled the letters testamentary issued to Melinda on April 25, 2008; (5) recalled the letters of independent administration issued on April 3, 2008, in favor of the Franklins; and (6) declared that Gerald’s succession was intestate. The judgment further provided that any future appointment of an administrator be made by a rule to show cause. Melinda appealed, challenging the trial court’s determination of the invalidity of the 2006 testament and the revocation of the 1993 testament. In an answer to the appeal, the Franklins sought the reversal of that portion of the judgment that voided and recalled the letters of independent administration issued to them.

Validity of the 2006 Testament

Melinda urges that the trial court improperly declared the 2006 notarial testament to be null and void. A disposition mortis causa may be made only in the form of a testament authorized by law. LSA-C.C. art. 1570. The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null. LSA-C.C. art. 1573. A notarial testament is one that is executed in accordance with the |4formalities of Articles 1577 through 1580.1. LSA-C.C. art. 1576. A notarial testament may be made in one of several ways, but the 2006 notarial testament was subject to the formalities of Article 1577, which provides:

The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: “In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this _ day of_ [Emphasis added.]

Article 1577 provides that this form of a notarial testament “shall be executed” in a certain manner. The word “shall” is mandatory. LSA-R.S. 1:3; Succession of Brown, 458 So.2d 140, 142 (La.App. 1st Cir.1984). To properly execute this form of a notarial testament, the following actions must be taken: (1) in the presence of a notary and two competent witnesses, the testator shall declare that the instrument is his testament; (2) in the presence of a notary and two competent witnesses, the testator shall sign his name at the end of the testament and on each other separate page of the testament; and (3) in the presence of the testator and each other, the notary and the witnesses shall sign the declaration set forth in Article 1577, or one substantially similar. See LSA-C.C. art. 1577. Comment (b) of the 1997 revision comments to LSA-C.C. art. 1577 clarifies that the testator need not sign after both the dispositive or appointive provisions of the notarial testament and the declaration. If the testator is disposing of property, appointing an executor, or making other directions in the body of the |5testament itself, he need only sign at the end of the dispositive, appointive, or directive provisions. LSA-C.C. art. 1577, Revision Comments — 1997, comment (b).

The intention of the testator as expressed in the testament must govern. However, the intent to make a testament, although clearly stated or proved, will be ineffectual unless the execution thereof complies with codal requirements. See Succession of Roussel, 373 So.2d 155, 157 (La.1979). A material deviation from the manner of execution prescribed by the code will be fatal to the validity of the testament. Id.; see LSA-C.C. art. 1573. The fact that there is no fraud, or even suggestion or intimation of it, will not justify the courts in departing from the codal requirements, even to bring about justice in the particular instance, since any material relaxation of the codal rule will open up a fruitful field for fraud, substitution, and imposition. Succession of Roussel, 373 So.2d at 157. The purpose of the codal article in prescribing formalities for the execution of testaments is to guard against and prevent mistake, imposition, undue influence, fraud, or deception, to afford means of determining their authenticity, and to prevent the substitution of some other writing. Id. at 158. Thus, the law precludes additional evidence on the issue of intent when the testament was not confected in accordance with LSA-C.C. art. 1577. Succession of Richardson, 05-0552 (La.App. 1st Cir.3/24/06), 934 So.2d 749, 752, writ denied, 06-0896 (La.6/2/06), 929 So.2d 1265. If there is any area of our civil law in which the goal of certainty of result has particular significance, it is that of successions. Id. at 752 (Gaidry, J., concurring).

It is undisputed that Gerald did not sign one of the pages of the 2006 testament that contained dispositive provisions in favor of his three sisters. Thus, Gerald did not comply with one of the formalities of LSA-C.C. art. 1577(1) in that he did not sign on each other separate page of the testament. If the formalities prescribed for the execution of a testament are not observed, the testament is absolutely null. See LSA-C.C. art. 1573. In light of Gerald’s failure to comply with one of the formalities of LSA-jC.C.(; art. 1577(1), we are unable to find legal error in the trial court’s determination that the 2006 testament is absolutely null in its entirety. Although we (like the trial court) find this to be a harsh result under the circumstances of this case, we are bound to follow the law. We were unable to find any codal or jurisprudential authority to support a finding that only the unsigned page containing dispositive provisions should be declared null as suggested by Melinda. See Evans v. Evans, 410 So.2d 729 (La.1982); Succession of Roussel, 373 So.2d 155; Succession of Hoyt, 303 So.2d 189 (La.App. 1st Cir.1974); Land v. Succession of Newsom, 193 So.2d 411 (La.App. 2nd Cir. 1967), writ denied, 250 La. 262, 195 So.2d 145 (1967). Cf. In re Succession of Simonson, 07-742 (La.App. 5th Cir.3/11/08), 982 So.2d 143.

|7The fact that the testator in this case failed to sign a page of the testament containing dispositive provisions makes this case distinguishable from Succession of Guezuraga, 512 So.2d 366, 368 (La. 1987), in which the supreme court discussed the formal requirements of a statutory will. See former LSA-R.S. 9:2442 to 2445. The issue in Succession of Guezura-ga was whether a'statutory will was valid if the testatrix signed the page containing all dispositive portions and the beginning of the attestation clause, but failed to sign the page containing only the conclusion of the attestation clause. Succession of Guezuraga, 512 So.2d at 366. In the will, the testatrix left the forced portion of her estate to her two adoptive children and the disposable portion to her four sisters. Over the objection of the testatrix’s adoptive children, the trial court ordered the will probated. Relying on Succession of Hoyt, 303 So.2d 189, and Land, 193 So.2d 411, the fourth circuit reversed, holding that the failure of the testatrix to sign each sheet was fatal to the validity of the will. Succession of Guezuraga, 503 So.2d 187, 188 (La.App. 4th Cir.1987).

Based on the fact that the testatrix in Succession of Guezuraga had signed on the page containing all of the dispositive portions, the supreme court found that Hoyt and Land were distinguishable and reversed the appellate court’s holding that the will was not valid. Succession of Guezuraga, 512 So.2d at 367. The supreme court observed that former LSA-R.S. 9:2442(B)(1) required that the testator declare to the notary and witnesses that the “instrument” was his last “will” and to sign his name at the end of the “will” and on each separate page of the “instrument.” After finding that the legislature intended to use the terms “will” and “instrument” interchangeably and that the reference in each instance was only to the entirety of the testator’s dispositions or recitations, the supreme court concluded that the testatrix had fulfilled the statutory requirement to sign her name at the end of the “will” and on each separate page of the | ¿‘instrument” by signing the page that contained all of the dispositive provisions. Succession of Guezuraga, 512 So.2d at 367-68.

In Succession of Guezuraga, the supreme court declined to interpret the terms “will” and “instrument” as strictly as the forced heirs requested, stating:

But we are not required to give the statutory will a strict interpretation. The Legislature adopted the statutory will from the common law in order to avoid the rigid formal requirements of the Louisiana Civil Code. “The minimal formal requirements of the statutory will are only designed to provide a simplified means for a testator to express his testamentary intent and to assure, through his signification and his signing in the presence of a notary and two witnesses, that the instrument was intended to be his last will.” In accordance with this legislative intent, courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. In deciding what constitutes substantial compliance, the courts look to the purpose of the formal requirements — to guard against fraud.
Where the departure from form has nothing whatsoever to do with fraud, ordinary common sense dictates that such departure should not produce nullity. It was the intent of the legislature to reduce form to the minimum necessary to prevent fraud. It is submitted that in keeping with this intent, slight departures from form should be viewed in the light of their probable cause. If they indicate an increased likelihood that fraud may have been perpetrated they would be considered substantial and thus a cause to nullify the will. If not, they should be disregarded. Thus testators and estate planners will have the security that the legislature intended to give them.

Succession of Guezuraga, 512 So.2d at 368 (citations omitted). On rehearing, the supreme court observed that the attestation clause is a certifícate to a will and not part of the will itself. Therefore, the supreme court reaffirmed its holding that the testatrix’s failure to sign the page containing only the conclusion of the attestation clause was not fatal to the validity of the statutory will. Succession of Guezuraga, 512 So.2d at 370 (on reh’g).

With respect to the dispositive provisions, the court in its original opinion in Succession of Guezuraga set forth the following, in pertinent part:

The dispositive provisions of the testament are what primarily concern the testator, and as to which we require the testator’s affirmance by a signature.... This is our assurance that the testament is an accurate reflection of the testator’s wishes. So long as the signature is located beneath the dispositive provisions and affixed in time after they are written, we are permitted to infer the testator’s approval.... [B]arring other problems with a disposition, it is valid if it appears above the signature of the testator. ...

Succession of Guezuraga, 512 So.2d at 369, quoting H. Alston Johnson, Successions and Donations, 43 La.L.Rev. 585, 595-96 (1982). Although Evans was not mentioned in Succession of Guezuraga, the court’s reference to dispositive provisions seems to be consistent with, and does not reflect an intent to stray from, the holding in Evans.

Validity of the 1993 Testament

Melinda next asserts that the trial court improperly declared Gerald’s 1993 statutory testament null and void because it was revoked by the 2006 testament. Relying on Succession of Feitel, 187 La. 596, 175 So. 72 (1937), Melinda argues that if a testament containing a clause revoking all prior testaments of the testator is annulled, the revoking clause loses its effect and the last preceding testament stands unrevoked. The genesis of this argument is based on former LSA-C.C. art. 1692, which read:

The act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities.

In dicta on rehearing, the supreme court in Succession of Feitel agreed that, under former LSA-C.C. art. 1692, an express revocation of a testament, to have effect, must be made in one of the forms prescribed for testaments and be clothed with the same formalities. Otherwise, the testament is invalid and the revoking clause could not | ^constitute a formal revocation of a previously executed testament. Succession of Feitel, 175 So. at 80 (on reh’g); see In re Succession of Legardeur, 99-699 (La.App. 5th Cir.11/30/99), 747 So.2d 204, 206-07, writ denied, 00-0124 (La.3/24/00), 758 So.2d 150.

However, Articles 1570 to 1723 of Chapter 6, “Of Dispositions Mortis Causa (In Prospect of Death),” Title II, Book III, of the Louisiana Civil Code of 1870, were revised, amended, and re-enacted by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999, to consist of Articles 1570 to 1616. As a result of these revisions, a testator’s revocation of a testament is now governed by LSA-C.C. art. 1607, which provides:

Revocation of an entire testament occurs when the testator does any of the following:
(1) Physically destroys the testament, or has it destroyed at his direction.
(2) So declares in one of the forms prescribed for testaments or in an authentic act.
(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

The testator’s ability to revoke a prior testament was expanded by adding the use of an authentic act to do so. See LSA-C.C. art. 1607 and Revision Comments— 1997. In 2006, an entire testament could be revoked by an authentic act in which the testator declared his testament revoked. An authentic act is a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed. LSA-C.C. art. 1833(A). Thus, the fact that the document executed by Gerald in 2006 is not a valid testament does not preclude the document from constituting an authentic act, and the parties do not dispute that the 2006 document complies with the requirements of LSA-C.C. art. 1833(A). In the 2006 document, Gerald stated: “I revoke all of my prior wills and codicils.” This statement reflects a clear intent to revoke and should be honored. See LSA-C.C. art. 1607, Revision Comments — 1997. Thus, we are unable to find that the trial court erred in | ^finding that the revocation clause in Gerald’s 2006 authentic-act document constituted a formal revocation of his 1993 testament under LSA-C.C. art. 1607(2).

Answer to Appeal

The Franklins answered the appeal seeking the reversal of the portion of the judgment that voided and recalled the letters of independent administration issued to them. On March 14, 2008, the trial court determined that Gerald’s 2006 testament was invalid, and Melinda’s appointment as executrix pursuant to that document was recalled. Because Melinda’s removal had not been reduced to a written judgment when the trial court issued the letters of independent administration to the Franklins on April 3, 2008, the trial court declared that the appointment of the Franklin children as independent administrators was premature and had to be withdrawn. The Franklins contend that the trial court was incorrect since Melinda’s January 29, 2008 appointment as executrix pursuant to the 2006 testament was invalid ab initio, and there was no valid succession administrator in place.

In light of the facts that the recall of Melinda’s appointment as executrix had not yet been reduced to writing, the trial court had not yet ruled on the validity of the 1998 testament when the appointment of the Franklins was made, and the trial court had not yet considered Melinda’s opposition to the Franklins’ request for appointment, we find no error or abuse of discretion in the trial court’s decision to recall the letters of independent administration that were issued to the Franklins.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Each party is to bear their own costs related to this appeal.

AFFIRMED.

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

McCLENDON, J.,

agrees in part, dissents in part, and assigns reasons.

h The trial court specifically found the testament of Mr. Hendricks dated July 31, 2006, to be null and void ab initio. I agree with the majority in affirming the trial court in this respect. However, the majority also agrees with the trial court’s conclusion that the document executed by Gerald Hendricks in 2006, although not a valid testament, constituted an authentic act revoking Mr. Hendricks’ prior 1993 will. I respectfully disagree.

While the majority finds that Mr. Hendricks’ statement in his 2006 will to revoke all of his prior wills and codicils “reflects a clear intent to revoke and should be honored” pursuant to LSA-C.C. art. 1607(2), the majority also holds that while the will is invalid as a testament, it is nevertheless a valid revocation of the previous will. In my opinion, this is contrary to the testator’s intent. Mr. Hendricks clearly did not desire to die intestate, but rather attempted to substitute his new testament for the old one, as opposed to executing a separate authentic act of revocation. To find the 2006 will null “ab initio”, which means “from the beginning,” yet to enforce its revocation clause, defies common sense.

Further, the majority’s interpretation of LSA-C.C. art. 1573 essentially adds language, which is not part of the article, i.e., that the testament is absolutely null “as a testament.”

In Succession of Guezuraga, 512 So.2d 366 (La.1987), based on LSA-R.S. 9:2442, the predecessor of LSA-C.C. art. 1577, which set forth the requirements of form for a statutory will, the supreme court stated that a “plausible conclusion, and one in keeping with the principles of liberality” given to the interpretation of statutory wills, is that the legislature intended to use the terms “will” and “instrument” interchangeably. Guezuraga, 512 So.2d at 367-68. In this matter, LSA-C.C. art. 1577, setting forth the formalities for a notarial testament, requires the testator to declare to the notary and witnesses that the “instrument” is his “testament” and to sign his name at the end of the “testament” and on each other separate page. By analogy, the word “testament” as it is presently used in Article 1573, can easily be read as “instrument.” With this in mind, LSA-C.C. art. 1573, which states “the testament is absolutely null,” could be read as “the instrument is absolutely null.”

Regardless, because the 2006 testament was found to be null and void ab initio, I cannot agree with the majority that it can nevertheless be an authentic act revoking Mr. Hendrick’s 1993 will and leaving him intestate. Accordingly, I respectfully dissent.

      . Letters testamentary were issued to Melinda on April 25, 2008.

      . Further action in this case was stayed during the pendency of this appeal.

      . Although Article 1573 was added by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999, it is based on the provisions of Article 1595 of the Civil Code of 1870 and does not change the law. LSA-C.C. art. 1573, Revision Comments — 1997.

      . Although Article 1576 was added by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999, it did not change the law. LSA-C.C. art. 1576, Revision Comments — 1997, comment (a).

      .Article 1577 was added by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999; however, it reproduces the substance of LSA-R.S. 9:2442, which was repealed effective July 1, 1999, and which established the form for a statutory will. See LSA-C.C. art. 1577, Revision Comments — 1997, comment (a).

      . In Evans, the supreme court addressed whether the penalty provision for noncompliance with the testamentary formalities applied to statutory wills. See former LSA-C.C. art. 1595; former LSA-R.S. 9:2442. The court noted that it is a fundamental principle of statutory construction that laws concerning the same subject matter must be construed with reference to each other. See LSA-C.C. art. 13 (which reproduces the substance of former LSA-C.C. art. 17). Former LSA-C.C. art. 1595 was found to proscribe the consequences of a failure to heed to the formalities set forth in the articles disqualifying certain persons from acting as witnesses to a testament that preceded it. The failure to comply with codal requirements (pertaining to witnesses) resulted in the invalidity of the will in its entirety, not just the bequest to the witness. Absent some express statement by the legislature to the contrary, the court was bound to declare the will null and void. Evans, 410 So.2d at 732 & n. 7. Justices Marcus, Lemmon, and Blanche dissented based on a finding that former LSA-C.C. art 1595 was not applicable to the facts of the case. The dissenters believed that the bequest to the legatee who was a witness to the will should be invalidated, leaving the remainder of the will valid. Evans, 410 So.2d at 734-35.

      . Succession of Roussel involved a nuncupa-tive testament by private act that had been witnessed by six witnesses, two of which did not reside in the parish in which the will had been executed as required by former LSA-C.C. art. 1581. Succession of Roussel, 373 So.2d at 157-58.

      . Succession of Hoyt involved a two-page will signed only on the second page. After noting that the purpose of the requirement that the testator sign his name on each separate sheet is to prevent fraud by the substitution of one typewritten page for another after the execution of the will by the testator, the court affirmed the trial court judgment invalidating the will. Succession of Hoyt, 303 So.2d at 189.

      . Land also involved a two-page will that had been signed only on the second page. Land, 193 So.2d at 412. The first page of the will contained some or all of the dispositive portions and had not been signed by the testator. The court found that the absence of the testatrix’s signature on each page or sheet of the will was fatal. Therefore, the will was declared to be invalid. Id. at 414.

      . The fifth circuit in In re Succession of Simonson, recently addressed the validity of a notarial testament where the trial court denied the probate of a notarial testament because the testator’s signature was absent from page six of a seven-page instrument. The unsigned page related solely to the powers of the trustee to make disclaimers and invest in tax exempt securities and the trustee’s powers regarding transactions between the estate and the trust. There were no allegations of fraud, and no critical provisions on page six of Si-monson's will. Simonson had signed at the end of each dispositive, appointive, or directive provision in the testament. The court noted that where the departure from form has nothing whatsoever to do with fraud, ordinary common sense dictates that such departure should not produce nullity, although the unsigned page must be deemed invalid. In re Succession of Simonson, 982 So.2d at 146. Because the invalidation of the unsigned page did not inhibit the faithful execution of Si-monson's dispositive intent or require nullification of the will in its entirety, the court concluded that the trial court erred in denying probate and in denying the judgment of possession. Id.

      . In Succession of Porche v. Mouch, 288 So.2d 27 (La. 1973), the supreme court held that it was immaterial for any substantial purpose whether the testator’s signature was placed before or after any formal attestation clause by the notary and two witnesses at the end of the will. Succession of Guezuraga, 512 So.2d at 369.

      .In 1974, LSA-R.S. 9:2442 was amended by 1974 La. Acts, No. 264, § 1, to require the facts regarding the execution of the will be evidenced by a declaration signed by the notary and both witnesses, settling the issue of whether the testator must sign at the end of the will or after the attestation clause. Succession of Guezuraga, 512 So.2d at 369. The court observed it was now clear that the testator need not sign after the attestation clause. See Id.

      . Since the testator in In re Succession of Simonson, 982 So.2d 143, had signed at the end of each dispositive provision in the testament, we find that the court’s reasoning in In re Succession of Simonson is not determinative of the validity of Gerald’s 2006 testament. However, the holding in that case seems to be contrary to the strict interpretation of LSA-C.C. art. 1573.

      . Succession of Feitel was overruled in part on other grounds by Succession of Jenkins, 481 So.2d 607 (La. 1986).

      . We note that, on the last page of the 2006 document, Gerald did not sign his name after concluding the dispositive, appointive, and directive provisions, but instead signed after the declaration or attestation clause along with the two witnesses and the notary. If Gerald had followed the opposite sequence, our conclusion may have been different. See LSA-C.C. art. 1833(A).

      . Bryan A. Garner, Black's Law Dictionary, (7th ed. 1999).


author: McCLENDON, J.

text:
    Mark BURAS and Maria Buras v. The PARISH OF TANGIPAHOA, Louisiana and Sewerage District No. 1 of Tangipahoa Parish.
    No. 2008 CA 2429.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 23, 2009.

      John I. Feduccia, Hammond, Louisiana, for Plaintiffs/Appellees, Mark Buras and Maria Buras.
    Clifton Speed, Greensburg, Louisiana, for Defendant/Third-Party Plaintiff, Tan-gipahoa Parish Council-President Government.
    Douglas T. Curet, Hammond, Louisiana, for Defendant, Sewerage District No. 1 of the Parish of Tangipahoa.
    J. Parker Layrisson, Ponchatoula, Louisiana, for Third-Party Defendant/Appellant, Robert G. Barrilleaux & Associates, Inc.
    Before: PARRO, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

12This is an appeal by a third-party defendant from a trial court judgment that granted the plaintiffs’ motion to strike eer-tain paragraphs from the third-party defendant’s answer to the plaintiffs’ petition and also granted the plaintiffs’ motion to strike the cross-claim filed by the third-party defendant against the plaintiffs. For the reasons that follow, we affirm in part, reverse in part, and remand.

FACTUAL AND PROCEDURAL HISTORY

On March 20, 2007, the plaintiffs, Mark Buras and Maria Buras, filed a petition for damages and declaratory judgment against the defendants, Parish of Tangipahoa, Louisiana (Tangipahoa Parish) and Sewerage District No. 1 of Tangipahoa Parish, Louisiana (Sewerage District). The plaintiffs asserted that they are the owners of certain immovable property located in Na-talbany and that the defendants placed large sewer pipes and sewer lines on the plaintiffs’ property without lawful authority, thereby causing damage to them and to their property. The plaintiffs further requested that the defendants be ordered to remove the sewer lines and other fixtures, and asserted that they were entitled to a declaratory judgment that the defendants have no lawful right to place sewer lines on their property without first compensating them for the wrongful taking. Tangipahoa Parish answered the petition claiming that the sewer pipes, sewer lines, and other permanent fixtures were placed on the plaintiffs’ property with plaintiffs’ permission and acquiescence and in connection with a Louisiana Community Development Block Grant program to provide a community sewerage system in the unincorporated areas of Natalbany. Tangipahoa Parish also named Robert G. Barrilleaux & Associates, Inc. (Barrilleaux) as a third-party defendant, asserting that Barrilleaux undertook the job of obtaining written servi-tudes and usage agreements from the plaintiffs and as such was responsible to indemnify Tangipahoa Parish in the event the plaintiffs were successful on the main | .^¡demand. The Sewerage District also answered the petition generally denying its allegations.

On September 28, 2007, Barrilleaux filed a “Verified Answer to Petition, Answer to Third Party Demand, and Cross-Claim Demand.” In paragraphs 1 through 6, Barrilleaux answered the plaintiffs’ petition against Tangipahoa Parish and the Sewerage District, generally denying the plaintiffs’ allegations. Also, in paragraphs 7 through 10 of its answer to the petition, Barrilleaux raised defenses to the allegations of the plaintiffs’ petition. Further, in paragraphs 11 through 19, Barrilleaux generally denied and set forth affirmative defenses to the allegations of the third-party demand of Tangipahoa Parish. Lastly, in paragraphs I through VIII of the pleading, Barrilleaux asserted a “cross-claim” demand against the plaintiffs, contending that the plaintiffs gave verbal permission and instructions to install the sewerage fixtures and agreed to subsequently execute a written agreement in exchange for a waiver of sewerage district impact fees valued at over $40,000. Third-party defendant Barrilleaux contended that the plaintiffs’ false statements and misrepresentations resulted in a fraud upon it, entitling Barrilleaux to damages from the plaintiffs.

In response to the September 28, 2007 pleading, the plaintiffs filed, on April 9, 2008, a “Rule to Strike” requesting the trial court to strike Barrilleaux’s answer to the plaintiffs’ petition (paragraphs 1 through 10) because Barrilleaux was not made a defendant to the original petition and to strike Barrilleaux’s cross-claim against them as unauthorized because Bar-rilleaux is not a “co-party” under the Louisiana Code of Civil Procedure. The plaintiffs also filed several exceptions, including the dilatory exception raising the objection of improper cumulation of actions and the peremptory exceptions raising the objections of prescription, no right of action, and no cause of action.

Following a hearing on the motion to strike, the trial court ruled in favor of the plaintiffs, ordering that Barrilleaux’s answer to the original petition (paragraphs 1 through 10) be stricken from the record ab initio, that the cross-claim of Barrilleaux against the plaintiffs (paragraphs I through VIII) be stricken l/rom the record ab initio, and that the exceptions filed by the plaintiffs be dismissed as they were rendered moot by the granting of the motion to strike. Judgment was signed on August 26, 2008. There were no written or oral reasons for judgment. Barrilleaux appealed, asserting that the trial court erred in granting the motion to strike its answer to the plaintiffs’ petition and its cross-claim against the plaintiffs.

APPLICABLE LAW

Incidental Actions

Louisiana Code of Civil Procedure article 1031, relative to incidental demands, provides, as follows:

A. A demand incidental to the principal demand may be instituted against an adverse party, a co-party, or against a third person.
B. Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties.

Cross-claims are addressed in LSA-C.C.P. art. 1071, which provides:

A party by petition may assert as a cross-claim a demand against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or a reconventional demand or relating to any property that is the subject matter of the original action. The cross-claim may include a demand that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of the demand asserted in the action against the cross-claimant.

Demands against third parties are addressed in LSA-C.C.P. art. 1111, which provides:

The defendant in a principal action by petition may bring in any person, including a codefendant, who is his warrantor, or who is or may be liable to him for all or part of the principal demand.
In such cases the plaintiff in the principal action may assert any demand against the third party defendant arising out of or connected with the principal demand. The third party defendant thereupon shall plead his objections and defenses in the manner prescribed in Articles 921 through 969, 1003 through 1006, and 1035. He may reconvene against the plaintiff in the principal action or the third party plaintiff, on any demand arising out of or connected with the principal demand, in the manner prescribed in Articles 1061 through 1066.

|sThe third-party defendant may assert against the plaintiff in the principal action any defenses which the third-party plaintiff has against the principal demand. LSA-C.C.P. art. 1115. Additionally, a third-party defendant may proceed under LSA-C.C.P. arts. 1111 through 1115 against any person who is or may be liable to him for all or any part of the third-party demand. LSA-C.C.P. art. 1116.

Motion, to Strike

Louisiana Code of Civil Procedure article 964 provides, as follows:

The court on motion of a party or on its own motion may at any time and after a hearing order stricken from any pleading any insufficient demand or defense or any redundant, immaterial, impertinent, or scandalous matter.

Generally, motions to strike are viewed with disfavor and are infrequently granted. They are disfavored because striking a portion of a pleading is a drastic remedy and because they are often sought by the movant simply as a dilatory tactic. Hazelwood Farm, Inc. v. Liberty Oil and Gas Corp., 01-0345, pp. 6-7 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 98, writ denied, 01-2115 (La.7/26/01), 794 So.2d 834. A motion to strike is not an authorized or proper way to procure the dismissal of a complaint or a cause of action. Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1162 (La.1988).

DISCUSSION

Barrilleaux initially argues that the trial court erred in striking its answer to the plaintiffs’ petition. However, Barril-leaux was not made a defendant in the original action filed by the plaintiffs, but was made a third-party defendant by Tan-gipahoa Parish, the third-party plaintiff. “A third party demand does not make the third party defendant a party to the principal demand.” Frank L. Maraist, 1 Louisiana Civil Law Treatise § 7:4 (2nd ed. 2008). It is only when the plaintiff in the principal demand asserts a demand against the third-party defendant arising out of or connected with the principal demand that the third-party defendant must plead his objections and defenses in the manner prescribed by Article 1111. See LSA-C.C.P. art. 1111. Unquestionably, as the 1 (¡plaintiffs never asserted any demand against Barrilleaux, Barrilleaux’s answer to the plaintiffs’ petition was procedurally improper and insufficient. See LSA-C.C.P. art. 964. Accordingly, the trial court did not err in striking from the record ab initio paragraphs 1 through 6 of Barrilleaux’s answer to the plaintiffs’ petition against Tangipahoa Parish and the Sewerage District, which answer generally denied the allegations of the principal demand.

However, in paragraphs 7 through 10 of its answer, Barrilleaux raised defenses to the allegations of the plaintiffs’ petition that were substantially the same as those raised by Tangipahoa Parish in its answer. Since LSA-C.C.P. art. 1115 permits a third-party defendant to assert against the plaintiff in the principal action any defenses which the third-party plaintiff has against the principal demand, Bar-rilleaux’s assertion of such defenses was proper under Article 1115. Accordingly, paragraphs 7 through 10 of Barrilleaux’s answer were properly before the court, and the trial court erred in striking from the record ab initio said paragraphs.

As to Barrilleaux’s “cross-claim” (paragraphs I through VIII), Barrilleaux asserts that it has filed a proper cross-claim against the plaintiffs and that the trial court erred in striking the cross-claim from the record. However, the plaintiffs contend that Barrilleaux is not a “co-party,” and, therefore, the pleading is not a cross-claim and was properly stricken.

In the federal system, a cross-claim is properly asserted against a party having a like status, such as a co-defendant. Ma-raist, 1 Louisiana Civil Law Treatise § 7:5. In 1983, when the Louisiana legislature adopted a cross-claim procedure, it did not define a “co-party.” “However, as in the federal system, a ‘co-party’ logically is one who is at the same functional level in the lawsuit, i.e., two plaintiffs in the original action, two defendants in the original action, or two defendants in a third party demand.” Id.

Therefore, Barrilleaux’s claim against the plaintiffs does not appear to be a valid cross-claim. However, the improper label given to Barrilleaux’s claim is of no import because a pleading is construed for what it really is, not for what it is 17erroneously called. See Draten v. Winn Dixie of Louisiana, Inc., 94-0767, p. 3 (La. App 1 Cir. 3/3/95), 652 So.2d 675, 676. The true nature of the pleading is therefore the determinative factor. See LSA-C.C.P. art. 865.

The Louisiana Code of Civil Procedure authorizes a third-party defendant to proceed against any person who is or may be liable to him for all or any part of the third-party demand. LSA-C.C.P. art. 1116. This language is clear and unambiguous. Pursuant to Article 1116, Barril-leaux may proceed against the plaintiffs in the principal demand by a third-party demand. Accordingly, although Barrilleaux’s claim against the plaintiffs may have been more appropriately labeled a third-party demand, it was properly before the court. This analysis is consistent with the desire to promote judicial efficiency by recognizing the third-party defendant’s right to assert all causes of action he may have against the principal plaintiff arising out of the transaction or occurrence that is the subject matter of the lawsuit. We further note that based on our finding, it is not necessary to address whether the motion to strike was the appropriate procedural vehicle for dismissing Barrilleaux’s “cross claim.”

Therefore, we conclude that the trial court erred in granting the motion to strike and dismissing the claims of Barril-leaux found in its third-party demand, which was erroneously titled a “cross-claim.” We also find that the trial court erred in granting the motion to strike and dismissing the defenses of Barrilleaux to the principal demand found in paragraphs 7 through 10 of its answer to the plaintiffs’ petition. Consequently, we reverse that portion of the trial court judgment striking from the record ab initio paragraphs I through VIII of Barrilleaux’s “cross-claim,” and we reverse that portion of the trial court judgment striking from the record ab initio paragraphs 7 through 10 of Barrilleaux’s answer to the principal demand.

CONCLUSION

Based on the foregoing, we affirm that portion of the trial court judgment striking from the record ab initio paragraphs 1 through 6 of Barrilleaux’s answer to the original petition of the plaintiffs, reverse that portion of the trial court ^judgment striking from the record ab initio paragraphs 7 through 10 of Barrilleaux’s answer to the original petition of the plaintiffs, reverse that portion of the trial court judgment striking from the record ab ini-tio the “cross-claim” of Barrilleaux (paragraphs I through VIII), and remand for further proceedings consistent with this opinion. Costs of this appeal shall be shared equally by the plaintiffs, Mark Bu-ras and Maria Buras, and third-party defendant, Robert G. Barrilleaux & Associates, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . The correct names of the defendants are the Tangipahoa Parish Council-President Government and Sewerage District No. 1 of the Parish of Tangipahoa.

      . In response to a "Motion to Designate Final Judgment” filed by Barrilleaux, the trial court signed an order on September 23, 2008, that the August 26, 2008 judgment be designated and certified as a final appealable judgment pursuant to LSA-C.C.P. art. 1915 B.

      . We note that Articles 1112 through 1114 are not applicable to our discussion herein.


author: EDWIN A. LOMBARD, Judge. BONIN, J.,

text:
    Phillip NEGRI, Jr. v. AUTHEMENT CONSTRUCTION, INC.
    No. 2009-CA-0584.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 2009.
    Rehearing Denied March 16, 2010.

      Workers’ compensation claimant failed to preserve for appellate review his claim that employer was liable for the medical costs associated with stabilizing claimant, the injured worker, despite a finding of intoxication, where claimant failed to raise the issue in the trial court. LSA-R.S. 28:1081(13).
    Christopher R. Schwartz, Law Office of Christopher Schwartz, Metairie, LA, for Plaintiff/Appellant.
    Jack E. Truitt, Nancy N. Butcher, Jennifer Cortes Poirier, The Truitt Law Firm, Covington, LA, for DefendantyAppellee.
    (Court composed of Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   EDWIN A. LOMBARD, Judge.

kThe claimant, Phillip Negri, Jr., appeals a judgment of the Office of Workers’ Compensation (OWC), dismissing his claim with prejudice. After review of the record in light of the applicable law and arguments of the parties, the OWC judgment is affirmed.

Relevant Facts and Procedural History

On June 9, 2006, the claimant was injured during the course and scope of his employment when he fell several floors from the roof of a building. At the time of the accident, the plaintiff was employed by Bruce Russell, a subcontractor for defendant/appellee, Authement Construction, Inc., the general contractor for condominiums located at Julia Place in New Orleans, Louisiana. Immediately after the accident, the claimant was transported to the LSU Trauma Center where an initial urine screening test was positive for cocaine. The claimant’s second (confirmatory) test was positive for cocaine, cocaine metabolites, and methadone.

On July 6, 2006, the plaintiff filed a claim for workers’ compensation benefits, naming Authement as his statutory employer. The matter came to trial before a workers’ compensation judge (the WCJ) in December 2008, and after taking the matter under advisement, the WCJ issued a final judgment on January | ¾14, 2009, finding that the claimant knowingly and willfully testified untruthfully regarding his use of an illegal drug on the date of the accident, as well as other relevant matters, for the purpose of obtaining workers’ compensation and thereby forfeited his right to compensation benefits pursuant to La. Rev.Stat. 23:1208. The WCJ also found that Authement proved by a preponderance of the evidence that the claimant was intoxicated by cocaine at the time of the accident, that the cocaine intoxication was the cause of the accident, and that the claimant failed to rebut the evidence of intoxication.

The claimant appeals this judgment, assigning as error the WCJ’s (1) presumption that cocaine intoxication was the cause of the accident in light of the fact that the urinalysis screen revealed both cocaine and medically prescribed methadone; (2) finding that.the claimant’s testimony was willfully and knowingly untruthful pertaining to his drug use on the day of the accident and other relevant matters; and (3) failure to award the reimbursement of the claimant’s medical expenses pursuant to La. Rev.Stat. 23:1081(13), as well as a penalty and attorney fees for the failing to timely pay medical expenses. According to the claimant, the two issues before the court on appeal are:

(1) Considering the positive result for two controlled substances in the claimant’s post-accident urine screen, was the presumption of cocaine intoxication as the causation of the accident reasonable when defendant Authement’s toxicologist “verified” that “the cocaine and methadone were the causative factor”.
(2) Because Authement was aware of the claimant’s addiction problem as well as his methadone treatment and did not undertake measures to protect itself or the claimant, did Authement passively “encourage its use during the employee’s work hours?”

| Standard of Review

The appropriate standard of review to be applied by this court to the Office of Workers’ Compensation judge’s findings of fact is the manifest error standard. Dean v. Southmark Construction, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Accordingly, we will not set aside the findings of the WCJ unless they are clearly wrong in light of the record viewed in its entirety. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review, even where this court may feel that its own evaluations and inferences are as reasonable, ie., this court will not reverse the findings of the WCJ even if convinced that, as the trier of fact, it would have weighed the evidence differently. Id.; see also Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706 (the trial court’s factual finding should be given great weight and should not be overturned absent manifest error).

Applicable Law

La. Rev.Stat. 23:1081(l)(b) provides that no compensation shall be allowed for an injury caused “by the injured employee’s intoxication at the time of the injury, unless the employee’s intoxication resulted from activities which were in pursuit of the employer’s interests or in which the employer procured the intoxicating beverage and encouraged its use during the employee’s work hours.”

Discussion

First, the claimant contends that the WCJ erred in finding cocaine intoxication as the cause of the accident because, as revealed by the confirmation test, methadone was also present in his urine. This argument, although novel, is without merit. Contrary to the claimant’s assertion that he did not use illegal drugs on the day of the accident, expert testimony established that the test results ^indicating both metabolized (cocaine metabolites) and unmetabolized cocaine in the claimant’s urine upon admission to the ER makes it more likely than not that the claimant ingested cocaine sometime after 7:00 a.m. on the day of the accident.

There is no foundation to the claimant’s assertion that because he was under the influence of legally prescribed methadone at the time of the accident, the WCJ erred in finding cocaine as the cause of the accident. Pursuant to La. Rev.Stat. 23:1081, once the employer met the burden of proving the claimant was intoxicated at the time of the accident, the presumption is that the accident was caused by the intoxication and the burden shifts to the claimant to prove that “the intoxication was not a contributing cause of the accident in order to defeat the intoxication defense of the employer.” La. Rev.Stat. 23:1081 (emphasis added). Thus, the issue is not (as the claimant suggests) whether cocaine was the sole cause of the accident, but whether the intoxication defense was defeated with proof that cocaine intoxication was not a contributing cause of the accident.

The claimant’s assertion that because he worked almost and an entire shift under the influence of cocaine and methadone, the accident which occurred at the end of the shift was necessarily a “pure accident” is meritless. Likewise, there is no foundation for the claimant’s contention that because Authement was aware of his addiction problem and methadone treatment and took no protective measures, Authement passively encouraged its use. Nothing in the record indicates that Authement was aware that the claimant (working for a subcontractor and injured the first day on the jobsite) had drug problems and, in any event, Authement clearly did not procure the intoxicants and the claimant did not use intoxicants in pursuit of Authement’s interests.

|BThe claimant asserts that the judgment must be overturned because the WCJ heard conflicting expert testimony as whether the test results indicated cocaine use on the day of the accident and because his denial of using on drugs on the day of the accident was not made for the purpose of obtaining compensation benefits. However, the record supports the WCJ’s finding that the claimant used cocaine on the day of the accident and that he made false statements about his cocaine use in order to obtain compensation benefits and, accordingly, the OWJ finding cannot be manifestly erroneous. See Dean v. Southmark Construction, 879 So.2d at 117 (reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed upon review).

Finally, the claimant argues that pursuant to La. Rev.Stat. 23:1081(13) the employer is responsible for the costs of medically stabilizing an injured worker despite a finding of intoxication and, accordingly, the WCJ erred in not ordering Authement to pay medical expenses of $247,777.10.

La. Rev.Stat. 23:1081(13) provides:

In the event a health care provide delivers emergency care to an injured worker later presumed or found to be intoxicated under this Section, the employer shall be responsible for the reasonable medical care provided the worker until such time as he is stabilized and ready for discharge from the acute care facility, at which time the employer’s responsibility shall end for medical and compensation benefits.

There is, however, no indication in the record that this issue was raised below. Because this court does not address issues raised for the first time on appeal, we pretermit any discussion of the applicability of La. Rev.Stat. 23:1081(13) to this case.

16Conclusion

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

BONIN, J., Concurs with Written Reasons.

BONIN, J.,

Concurs with Written Reasons.

|]I respectfully concur in the result.

The WCJ reasonably found facts which amply support his conclusion that Mr. Negri, the claimant, had violated La. R.S. 23:1208 by willfully making one or more false statements or representations for the purpose of obtaining any benefit or payment under the provisions of the Workers Compensation Law. When the WCJ makes a determination of such violation, the claimant “shall ... forfeit any right to compensation benefits.” La. R.S. 23:1208 E; see also Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7, 14-15.

Therefore, I concur in the result which affirms the judgment of the Office of Workers Compensation which had denied benefits to Mr. Negri.

      . The claimant was initially treated at LSU Trauma Center for a fractured arm and, subsequently, the arm became infected, requiring additional surgeries. The claimant does not indicate what portion of his medical expenses relates to initial stabilization under the statute or whether the emergency room expenses were paid on behalf of the claimant.