text:
    RAINBOW GUN CLUB, INC., et al. v. DENBURY RESOURCES, INC., et al.
    17-997
    Court of Appeal of Louisiana, Third Circuit.
    May 23, 2018
   J. Michael Veron, Alonzo P. Wilson, J. Rock Palermo III, Julia Love Taylor, Turner D. Brumby, Veron, Bice, Palermo & Wilson, L.L.C., 721 Kirby Street (70601), P. O. Box 2125, Lake Charles, LA 70602-2125, (337) 310-1600, COUNSEL FOR PLAINTIFFS/APPELLEES: Rainbow Gun Club, Inc., et. al.

Glenn W. Alexander, Jones Law Firm, 713 Kirby Street, Lake Charles, LA 70601, (337) 494-4398, COUNSEL FOR PLAINTIFFS/APPELLEES: Rainbow Gun Club, Inc., et. al.

Edward Saal, Jr., 504 Second Street, Gueydan, LA 70542, (337) 536-9210, COUNSEL FOR PLAINTIFFS/APPELLEES: Rainbow Gun Club, Inc., et. al.

Robert L. Cabes, Andrew J. Halverson, Milling Benson Woodard, LLP, P. O. Box 51327, Lafayette, LA 70505-1327, (337) 232-3929, COUNSEL FOR DEFENDANT/APPELLANT: SKH Energy Partners, LP

Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

SAVOIE, Judge.

Defendant, SKH Energy Partnership, LP (SKH), appeals the trial court's judgment holding it liable for its virile share of damages resulting from a subsequent mineral lease assignee's breach of its duty to operate the property as a reasonably prudent operator. In addition, the Plaintiffs appeal the trial court's award of legal interest from the date of judicial demand. For the following reasons, we amend the judgment with respect to the judicial interest awarded by the trial court, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The 170 Plaintiffs in this matter are lessors of various mineral leases as well as the owners of royalties of those leases. Between 1998 and 2001, various Plaintiffs granted multiple mineral leases directly to SKH, whose interest in those leases were ultimately assigned to Denbury Resources, Inc., Denbury Onshore, LLC, and Specter Exploration, Inc. (collectively, the Denbury Defendants). The leases involved various tracts of land in Cameron Parish, Louisiana. In 2003, Denbury Resources, as the operator, spudded the Rainbow Gun Club Well No. 1 on land covered by the mineral leases at issue, and the well was completed in July 2003. The well produced dry gas until December 2006, and it was then plugged and abandoned in July 2008.

On February 19, 2013, Plaintiffs filed suit against the Denbury Defendants and SKH, as well as Cinco Energy Land Services (Cinco) and Petro E, LLC (Petro E), wherein they allege that as the well was being drilled, drill pipe was stuck in the original hole, and that the stuck pipe could not be, and was not, adequately sealed. Plaintiffs allege that, as a result, there was an "extraneous water invasion" that irreparably damaged the underground gas reservoir and access to the gas reservoir was lost. Plaintiffs further assert in their petition that due to Defendants' negligence and breach of their obligations under the mineral leases, they are entitled to lost royalty income they would otherwise have received had the well and reservoir not been damaged.

On April 15, 2015, Cinco filed a motion for summary judgment seeking dismissal of Plaintiffs' claims against it, arguing that it did not own a working interest in the well at issue and never owned any interest in the applicable lease(s). Plaintiffs did not oppose Cinco's motion, and their claims against Cinco were dismissed.

On September 25, 2015, Petro E filed a motion for summary judgment seeking dismissal on the grounds that it had no involvement in the drilling of the well at issue. Plaintiffs did not oppose Petro E's motion for summary judgment, and their claims against it were also dismissed.

Prior to trial, Plaintiffs settled with the Denbury Defendants so that at the time of trial on July 11, 2016, SKH was the only remaining Defendant. Plaintiffs and SKH jointly submitted written stipulations in connection with the trial, including stipulations that the operator, Denbury Resources, stuck the drill pipe, that "sticking drill pipe is known by all prudent operators to be an undesireable event that should be avoided at all costs," and that "imprudent and unreasonable actions of the operator, Denbury Resources, ... caused the loss of recoverable reserves[.]" They further stipulated that prior to the drilling of the well, SKH had assigned 100% of its interest in the applicable mineral leases, so that SKH did not own any of the leases during the drilling and production operations of the well.

The parties also stipulated that, in accordance with the mineral leases at issue, Plaintiffs collectively owned a 0.13123906 royalty interest. During trial, Plaintiffs called an expert witness, William Griffen, who testified that 12.06 billion cubic feet of gas that could have otherwise been recoverable was lost from the well, which equated to $78,772,997.00 in lost revenue.

The trial court ultimately found that SKH, as a solidary obligor under the applicable mineral leases, was liable to Plaintiffs for one-fourth of the damages, in light of the three Denbury Defendants' settlement with Plaintiffs prior to trial. The trial court further accepted the amount of lost revenue as calculated by Plaintiffs' expert, and, based upon the stipulated royalty interest, found Plaintiffs' total damages to be $10,338,094.08. It then rendered judgment against SKH for one-fourth of that amount, which is $2,584,523.52, along with judicial interest from the date of judicial demand. The total amount of the judgment was divided among the Plaintiffs according to their respective royalty interests. SKH appealed and Plaintiffs answered the appeal.

ASSIGNMENTS OF ERROR

Defendant SKH asserts the following as assignments of error:

A. The trial court committed legal error, by holding SKH to be solidarily liable to the Plaintiffs, for damages arising out of the drilling of a natural gas well on property owned by Plaintiffs....
B. To the extent that this court holds that SKH was a solidary obligor under the leases, the trial court committed legal error by holding that SKH was liable, to the extent of a one-fourth (1/4) virile share of the damages claimed by the Plaintiffs[.]
C. The trial court committed legal error in awarding damages based upon testimony at trial, despite the fact that the Plaintiffs had previously entered into a compromise and settlement with the Denbury Defendants.

Plaintiffs answered SKH's appeal and assert that the trial court erred "in calculating judicial interest from the date of judicial demand rather than the date of the breach of contract."

STANDARD OF REVIEW

The parties herein stipulated to all relevant facts in this case, and on appeal, they raise issues solely involving the trial court's legal conclusions. "Appellate courts review a trial court's conclusion regarding a question of law to determine whether the conclusion is legally correct. If the conclusions are found to be incorrect, the flawed legal conclusions must be reviewed de novo." Latiolais v. Bellsouth Telecommunications, Inc. , 11-383, p. 4 (La.App. 3 Cir. 10/5/11), 74 So.3d 872, 875 (internal citations omitted).

ANALYSIS

Solidary Liability

In its first assignment of error, SKH argues that it was error for the trial court to find it solidarily liable to Plaintiffs for the lost revenue damages since the parties stipulated that it was Denbury's, and not SKH's, imprudent operations that caused the loss of gas from the well. We disagree.

As noted by Plaintiffs, SKH's liability in this matter does not arise out of negligence, but rather out of breach of the mineral lease(s) at issue, which were owned by SKH and then later assigned to the Denbury Defendants. Louisiana Revised Statutes 31:122 sets forth a lessee's implied obligation to act as a reasonably prudent operator, which "is read into every mineral lease[.]" Trinidad Petroleum Corp. v. Pioneer Natural Gas Co. , 416 So.2d 290, 297 (La.App. 3 Cir.), writ denied , 422 So.2d 154 (La.1982). Specifically:

A mineral lessee ... is bound to perform the contract in good faith and to develop and operate the property leased as a reasonably prudent operator for the mutual benefit of himself and his lessor. Parties may stipulate what shall constitute reasonably prudent conduct on the part of the lessee.

La. R.S. 31:122.

[T]he obligations imposed by Article 122 on a mineral lessee to act as a prudent operator include: (1) the obligation to develop reservoirs discovered; (2) the obligation to explore and test all portions of the leased premises after discovery of minerals in paying quantities; (3) the obligation to protect the leased property against drainage from wells on adjacent lands; (4) the obligation to diligently market the minerals discovered and capable of production in paying quantities.

Broussard v. Hilcorp Energy Co. , 09-469, p. 11 (La. 10/20/09), 24 So.3d 813, 820. " 'Develop,' as used in this industry, 'contemplates any step taken in the search for, capture, production and marketing of hydrocarbons.' 'Operate' can be defined as any activity leading to the production of oil and gas." Id. (internal citations omitted).

The implied duty imposed on a mineral lessee by La. R.S. 31:122 is also imposed on assignees or sublessees. See La. R.S. 31:128, which states, "To the extent of the interest acquired, an assignee or sublessee ... becomes responsible directly to the original lessor for performance of the lessee's obligations." However, even if a mineral lease is assigned to another lessee, the "assignor or sublessor is not relieved of his obligations ... under a mineral lease unless the lessor has discharged him expressly and in writing." La. R.S. 31:129 (emphasis added).

Therefore, unless expressly discharged in writing by the lessor, the original lessee, along with all future assignees or sublessees, become solidarily liable to the lessor for the whole performance of the lessee's obligations imposed by the mineral lease. See La. Civ. Code art. 1974, which states that an "obligation is solidary for the obligors when each obligor is liable for the whole performance." The mineral lessor/obligee may then, "at his choice, ... demand the whole performance from any of his solidary obligors" (i.e. lessees, lease assignees, or sublessees). La. Civ. Code art. 1795. While the mineral lessor/obligee may demand the whole performance from any of the solidary obligors, as among themselves, "each [obligor] is liable for his virile portion." La. Civ. Code art. 1804.

Plaintiffs and SKH stipulated that Denbury, who was a mineral lease assignee, violated the prudent operator obligation. SKH, however, argues that the prudent operator obligation is not a solidary obligation, but rather a "several" obligation, which occurs when "each of different obligors owes a separate performance to one obligee," and "produces the same effects as a separate obligation owed to each obligee by an obligor or by each obligor to an obligee." La. Civ. Code art. 1787. SKH further argues that an order from the Louisiana Office of Conservation naming Denbury as the unit operator suspended or extinguished the prudent operator obligation as to SKH since there can only be one legal operator.

SKH's position, however, conflicts with the express language of La. R.S. 31:128 and 31:129, which establishes the solidary nature of the obligations owed by mineral lessees and subsequent lease assignees to the lessor(s). This is made clear by the official comment to La. R.S. 31:129, which states:

Article 129 deals with both the obligations and liabilities of assignors and sublessors for future performance of the obligations of the original lease and the problem of their accrued obligations or liabilities as of the time of an assignment or sublease. It is obvious from the nature of the sublease that the original lessee remains bound to the original lessor and cannot discharge himself by the device of subleasing.... While it is not the intent of this article to change the rule as to the right of the lessor to demand performance from a sublessee who has assumed obligations of the original lease, it is the intent of this article to retain the concept that the prime lessor can continue to demand performance from his lessee unless he has released him in writing. It is also true of present law that an assignor cannot free himself of the obligations of his contract by assignment without consent of his creditor.... There is no basis for distinguishing mineral leases from other types of leases in this respect. There are practical reasons for preserving the state of the established law in the case of both subleases and assignments in this particular area. For example, it sometimes happens that a lessor deals with a particular company in preference to others. It should not be possible for a lessee in such a case to unburden himself by either sublease or assignment without the lessor's consent since the lessor may have relied specifically on the solvency and business reputation of the particular lessee. This is clearly the underlying motive for the basic rule that a creditor should not be compelled to accept a new debtor without consent.

We therefore conclude that the trial court was correct in finding that SKH was solidarily liable to Plaintiffs for Denbury's breach of the mineral lease's prudent operator obligation.

SKH's Virile Share of Damages

In its next two assignments of error, SKH argues that the trial court erred in holding it liable for one-fourth of Plaintiffs' damages because Plaintiffs settled with the Denbury Defendants. SKH contends that Plaintiffs' settlement with the Denbury Defendants released SKH from liability or "blocks" any further award of damages to Plaintiffs because the Denbury Defendants owned 100% of the leases at issue at the time of its imprudent operations, and because SKH was not negligent.

As we concluded above, SKH and the three Denbury Defendants were solidarily obligated to the Plaintiffs for the breach of the mineral leases, regardless of which lessee's actions were in breach of the leases. Since the three Denbury Defendants settled with Plaintiffs prior to trial, we look to La. Civ. Code art. 1803, which explains the effect of a solidary obligor's settlement with the obligee: "Remission of debt by the obligee in favor of one obligor, or a transaction or compromise between the obligee and one obligor, benefits the other solidary obligors in the amount of the portion of that obligor." We disagree with SKH's position that the "portion" contemplated by La. Civ. Code art. 1803 equates to the percentage of ownership of the mineral lease. Rather, Louisiana Civil Code Article 1804 states: "If the obligation arises from a contract or quasi-contract, virile portions are equal in the absence of agreement or judgment to the contrary. If the obligation arises from an offense or quasi-offense, a virile portion is proportionate to the fault of each obligor."

As discussed above, the prudent operator obligation at issue in this case is an implied contractual obligation that is read into the mineral leases; therefore, the lessees and lease assignees have equal virile portions. Since three of the lessees/assignees settled with Plaintiffs, the trial court was correct in reducing SKH's liability for Plaintiffs' damages so that it was only responsible for one-fourth of the damages. We, therefore, affirm the trial court's award of one-fourth of the Plaintiffs' damages against SKH.

Plaintiffs' Answer-Judicial Interest

On appeal, Plaintiffs assert that the trial court erred in calculating judicial interest from the date of judicial demand, rather than from the date of the breach of contract. We agree. Corbello v. Iowa Production Co. , 01-567 (La.App. 3 Cir. 8/6/03), 851 So.2d 1253, and Corbello v. Iowa Production , 02-826, (La. 2/25/03), 850 So.2d 686, make clear that judicial interest in this case should be calculated from the date of the breach of contract. Therefore, we amend the trial court's judgment to award judicial interest from July 13, 2003, which is the date that Denbury completed the well and the latest date that it could have stuck the pipe at issue. We note that the record does not indicate a specific date that Denbury breached the mineral lease(s) at issue.

DECREE

For the reasons stated above, we amend the trial court's judgment to award judicial interest on the damages assessed against SKH to be awarded from July 13, 2003, until paid. Otherwise, we affirm. Costs of this appeal are assessed to Defendant, SKH.

AFFIRMED AS AMENDED.

      While Plaintiffs also sued Cinco and Petro E, Plaintiffs' claims against them were dismissed, and there is no other indication in the stipulations submitted at trial or in the parties' briefs that there are any other lessees or lease assignee's other than SKH and the Denbury Defendants.


source: Caselaw Access Project

author: KYZAR, Judge.

license: Public Domain

text:
    Kenneth CLARK v. SEDGWICK CMS, et al.
    17-1063
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2018
    Matthew D. Fontenot, Hurlburt, Monrose & Ernest, P.O. Drawer 4407, Lafayette, LA 70502-4407, (337) 237-0261, COUNSEL FOR DEFENDANTS/APPELLANTS: Walgreen Company, Sedwick CMS
    Kevin L. Camel, Cox Cox Filo Camel & Wilson, LLC, 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPELLEE: Kenneth Clark, Hill City
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
   KYZAR, Judge.

The employer, Walgreen Company (Walgreens), appeals from a judgment amending an order of approval for a settlement of its former employee's claim. For the following reasons, we affirm and render judgment in favor of the employee.

DISCUSSION OF THE RECORD

The facts which led to the instant appeal are partially set forth in our previous opinion, Clark v. Sedgwick CMS , 15-277 (La.App. 3 Cir. 11/25/15), 179 So.3d 943, wherein we reversed in part a decision of the workers' compensation judge (WCJ) in favor of the employee, Kenneth Clark, awarding him supplemental earnings benefits and reinstating his right to further vocational rehabilitation. Ultimately, the parties reached a settlement and submitted their request for approval of the compromise settlement, which the WCJ approved and additionally rendered a judgment of dismissal on October 3, 2016.

Thereafter, Mr. Clark petitioned the WCJ to amend the order of approval to include language that reflected a division of the indemnity portion of the settlement over Mr. Clark's total lifetime, without altering the amount of the settlement agreed upon by the parties. His request was for the purpose of allowing the Social Security Administration (SSA) to pro-rate his settlement so that it could calculate any disability offset required as a result of the settlement. Walgreens objected to the amendment of the order and filed an exception of res judicata and a motion for sanctions. Following a March 27, 2017 hearing, the WCJ rendered an amended order of approval on June 2, 2017, to include language reflecting the indemnity aspect of the settlement over the total lifetime of the claimant and finding the "functionally limiting effects of the injuries or medical conditions upon which this settlement is based shall exist for the remainder of the employee's life expectancy." The amended order of approval further set forth a computation of monthly indemnity benefits based on the overall net settlement to Mr. Clark, which was referred to as "a stipulated monthly amount of $373.33." The court minutes from the hearing also indicate that both the exception of res judicata and the motion for sanctions were denied.

Walgreens appealed from the amended order on July 28, 2017; however, the record indicates that its motion for appeal was denied based on the lack of a final judgment in the matter. Subsequently, the WCJ rendered a judgment on August 21, 2017, which stated that it "replaces and supersedes the Amended Order signed on the 2nd day of June, 2017 and is in conformity with my ruling in open court." Notice of the signing of this judgment was forwarded to all counsel on August 22, 2017. Among other issues addressed in this judgment was the formal denial of Walgreens' exception of res judicata and motion for sanctions. Walgreens appeals both the June 2, 2017 amending order and the August 21, 2017 judgment, asserting three assignments of error:

1. The trial court was legally erroneous in amending the Original Order of Approval.
2. The trial court was without jurisdiction to amend or in any way change the Order from June 2, 2017, since it was divested of jurisdiction to do so.
3. The trial court was legally erroneous in denying the Exception of Res Judicata and Motion for Sanctions.

Mr. Clark answered Walgreens' appeal, seeking attorney fees and costs as a result of Walgreens' frivolous appeal.

We review the WCJ's ruling on issues of law de novo to determine whether its decision was legally correct. Magbee v. Fed. Express , 12-77 (La.App. 3 Cir. 12/12/12), 105 So.3d 1048.

SECOND ASSIGNMENT OF ERROR

We consider Walgreens second assignment of error first. Walgreens argues that its July 28, 2017 motion appealing the June 2, 2017 amended order, which was signed by the WCJ on July 31, 2017, divested the WCJ of jurisdiction to render its August 21, 2017 judgment. However, the record reflects that the order for appeal was, in fact, denied, as it contains a strike-through of the order and the WCJ's signature. It further contains marginal notations reflecting that it was denied. In conjunction with the August 21, 2017 judgment, the WCJ notified counsel for both parties that "[t]his Judgment was redone so the employer could have an appealable judgment and to be in conformity with my ruling on March 27, 2017." Accordingly, we find no merit in Walgreens' argument that the WCJ was divested of jurisdiction based on its original motion for appeal, as the record reflects that this motion was denied by the WCJ.

FIRST ASSIGNMENT OF ERROR

In its first assignment of error, Walgreens asserts that the WCJ committed legal error by amending the October 3, 2016 order approving the settlement, first, by the amended order on June 2, 2017, and, second, by the judgment rendered on August 21, 2017.

In McCarroll v. Livingston Parish Council , 13-2120, pp. 4-6 (La.App. 1 Cir. 10/27/14), 156 So.3d 1173, 1176-77, writ denied , 14-2498 (La. 2/27/15), 159 So.3d 1068 (footnote omitted), the court examined the law pertaining to settlements in the realm of workers' compensation:

Workers' compensation rests on the sound economic principle that those persons who enjoy the goods or services of a business or other systematic purposeful activity should ultimately bear the cost of the injuries or deaths of its employees that are incident to the production and distribution of its goods and services. Roberts v. Sewerage and Water Bd. of New Orleans , 92-2048 (La. 3/21/94), 634 So.2d 341, 343. Consequently, workers' compensation law is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries. Nelson v. Motiva , 04-2436 (La.App. 1 Cir. 12/22/05), 928 So.2d 34, 36 ; Morris v. East Baton Rouge Parish School Bd. , 93-2396 (La.App. 1 Cir. 3/3/95), 653 So.2d 4, 6, writ denied , 95-0852 (La. 5/5/95), 654 So.2d 335.
Louisiana workers' compensation law allows, but does not favor, the compromise or settlement of workers' compensation claims. LSA-R.S. 23:1271 ; Guidry v. One Source Facility Services , 04-2007 (La.App. 4 Cir. 4/27/05), 901 So.2d 626, 628. Further, the law contains specific provisions that govern the compromise of claims. Louisiana Revised Statutes 23:1272 provides, in pertinent part:
A. A lump sum or compromise settlement entered into by the parties under R.S. 23:1271 shall be presented to the workers' compensation judge for approval through a petition signed by all parties and verified by the employee or his dependent, or by recitation of the terms of the settlement and acknowledgment by the parties in open court which is capable of being transcribed from the record of the proceeding.
B. When the employee or his dependent is represented by counsel, and if attached to the petition presented to the workers' compensation judge are affidavits of the employee or his dependent and of his counsel certifying each one of the following items: (1) the attorney has explained the rights of the employee or dependent and the consequences of the settlement to him; and, (2) that such employee or dependent understands his rights and the consequences of entering into the settlement, then the workers' compensation judge shall approve the settlement by order, and the order shall not thereafter be set aside or modified except for fraud or misrepresentation made by any party.
This statute was designed to provide numerous safeguards to prevent an employee from being coerced, to prevent a hasty and possibly ill-advised resolution of the employee's claim, and to protect the parties from unwise actions which may cause them serious detriment. Morris , 653 So.2d at 6.
There can be no settlement of a workers' compensation claim in the absence of compliance with the procedure prescribed by LSA-R.S. 23:1272. Smith v. Isle of Capri Casino & Hotel , 10-0161 (La.App. 1 Cir. 9/10/10), 47 So.3d 642, 644. However, once the procedural requirements of the workers' compensation law have been complied with and an order approving a compromise settlement has been entered by the OWC, the judgment is conclusive, and it cannot be set aside except for fraud, misrepresentation, or ill practices. Id. See also Smith v. Cajun Insulation, Inc. , 392 So.2d 398, 401-02 (La.1980).

In the matter sub judice , the WCJ rendered the following order, on October 3, 2016, approving the parties' joint petition for a compromise settlement:

This matter having been presented to the Workers' Compensation Judge on the Joint Petition and agreement of KENNETH CLARK, WALGREEN COMPANY, AND ZURICH NORTH AMERICA, and the Workers' Compensation Judge having been fully informed in the premises and it appearing that the said KENNETH CLARK has been advised of his rights under the laws of the State of Louisiana, particularly the Louisiana workers' compensation laws, and the Workers' Compensation Judge being of the opinion that there are one or more serious bona fide disputes existing between the parties, and that the compromise is fair, equitable and consistent with the workers' compensation laws of the State of Louisiana and provides substantial justice to all parties;
IT IS ORDERED that the Joint Petition and compromise settlement agreement presented in this matter be and the same is hereby approved.
IT IS FURTHER ORDERED that upon the payment of ONE HUNDRED FORTY-EIGHT THOUSAND FIVE HUNDRED SEVENTY-FOUR AND NO/100 ($148,574.00) DOLLARS (EIGHT THOUSAND FIVE HUNDRED SEVENTY-FOUR AND NO/100 ($8,574.00) DOLLARS of the total settlement amount shall be placed by KENNETH CLARK in a medicare [sic] set aside account and is specifically attributable to, and in compensation for, the expected cost of KENNETH CLARK'S future medical expenses arising from his work-related injury), the Employer, Employer's Insurer, their agents, insurers, directors, officers, stockholders, employees and representatives and any and all other persons, firms, corporations, partnerships and parties whomsoever, be and they are hereby discharged from any and all liability (as per the Joint Petition of the parties) to Employee under the workers' compensation laws of the State of Louisiana, the tort laws, and any and all other laws whatsoever, including any claim as per La. R.S. 23:1361, as a result of the accident referred to in the petition filed herein, and any and all other accidents sustained by him in the past, arising out of or occurring in the course and scope of his employment with WALGREEN COMPANY.

Thereafter, on January 26, 2017, Mr. Clark filed a motion to amend the October 3, 2016 order of approval, on the basis that due to his counsel's inadvertence, the WCJ's order did not include language that expressed the indemnity portion of the settlement in a monthly amount, as required by the SSA. He stated that this language was required so that the SSA could "properly calculate any federal offset" resulting from his simultaneous receipt of workers' compensation benefits and Social Security Disability Income (SSDI). In response, Walgreens opposed Mr. Clark's motion to amend and filed an exception of res judicata and a motion for sanctions pursuant to La.Code Civ.P. art. 863(B)(2).

Following a hearing on the motions and the exception, the WCJ amended its original order of approval on June 2, 2017, to include the following language:

It is expected that the functionally limiting effects of the injuries or medical conditions upon which this settlement is based shall exist for the remainder of the employee's life expectancy. For the purpose of prorating this settlement by the Social Security Administration and any disability policy, it is specified that the wage earner, KENNETTH [sic] CLARK, is a white male, sixty (60) years old with a reduced life expectancy of another 25 years, or 400 months. After deducting attorney's fees in the amount of TWENTY-EIGHT THOUSAND DOLLARS AND NO/100 ($28,000.00), the net amount of the indemnity portion of the settlement to Employee is ONE HUNDRED TWELVE THOUSAND AND 00/100 (112,000.00). This amount being paid for future indemnity benefits pursuant to this compromised settlement agreement shall serve as substitute for periodic indemnity payments owed and/or payable for the remainder of KENNETH CLARK'S life, which computes to a stipulated monthly amount of $373.33. And further adding that Mr. Clark agrees that the inclusion of the foregoing provision cannot and will not be interpreted as any statement regarding whether or not he is now or may become totally and permanently disabled. Mr. Clark understands that the settlement extinguishes his right to all past, present, and future benefits under the Louisiana Workers' Compensation Act, and he waives any claims regarding the proper discount rate pursuant to R.S. 23:1274.

Subsequent to the WCJ's amended order, a written judgment was rendered on August 21, 2017, in which the WCJ formally denied Walgreens' motion for sanctions and exception of res judicata and granted Mr. Clark's motion to amend, reciting the identical language of the June 2, 2017 amended order approving the settlement. The judgment further stated that it replaced and superseded the June 2, 2017 amended order and that it was "in conformity with my ruling in open court." Walgreens filed a motion for a devolutive appeal on September 11, 2017, which was granted by the WCJ that same day.

While it is true that a judgment rendered in conformity with La.R.S. 23:1272 is "virtually unassailable," a final judgment may still be amended in accordance with La.Code Civ.P. art. 1951, which provides:

On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substance, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received.

As stated by this court in Ryland v. St. Mary's Residential Training School , 03-27, p. 3 (La.App. 3 Cir. 4/30/03), 843 So.2d 1237, 1240, writ denied , 03-1536 (La. 10/3/03), 855 So.2d 311 (alteration in original) (quoting Tunstall v. Stierwald , 01-1765, p. 4 (La. 2/26/02), 809 So.2d 916, 920 ), " '[A] judgment may be amended by the court only when the amendment takes nothing from or adds nothing to the original judgment.' "

After performing a thorough review of the record, we find that the WCJ was legally correct in determining that it had the legal authority to amend the October 3, 2016 order of approval to include the language necessary for the SSA to determine its offset. As stated by this court in Tyson v. Thompson Home Health , 10-1040, p. 3 (La.App. 3 Cir. 3/16/11), 59 So.3d 509, 512, writ granted , 11-760 (La. 6/3/11), 63 So.3d 1020, writ denied as improvidently granted , 11-760 (La. 10/25/11), 79 So.3d 246, "[t]he compromise agreement, and not the order of approval, is the document that governs the rights of the parties thereto." The only purpose that the order of approval serves, "is to prevent the ill-advised or hasty resolution of the employee's claim that could inure to [his] serious detriment." Id.

In this instance, the amendment of the order of approval to include the language required by the SSA in no way changed the rights or obligations of Mr. Clark and Walgreens, as set forth in the compromise settlement documents. Thus, the WCJ was correct in stating that this language added nothing substantive to the language of the compromise settlement. Substantively, the compromise settlement provided that Walgreens agreed to pay Mr. Clark $148,574.00 in exchange for Mr. Clark's full and final settlement of all claims against it. The added language, rather than substantively changing that agreement, merely changed the phraseology of the order of approval. It neither takes from nor adds to the settlement; rather, it merely assists the SSA in determining the offset it will take from Mr. Clark's monthly SSDI benefits based on the funds he receives from this settlement, pursuant to 42 U.S.C.A. § 424a, because, as stated by the WCJ, the settlement amount "serves as a substitute for periodic indemnity payments" Mr. Clark would have received from Walgreens in the future.

Walgreens was aware that Mr. Clark was receiving SSDI benefits, as he testified at the September 30, 2014 trial on the merits that he began receiving the benefits due to his back condition at approximately the same time that Walgreens reduced his workers' compensation benefits. In view of the axiom that "workers' compensation law is to be liberally construed in favor of protecting workers from the economic burden of work-related injuries[,]" we find no merit in Walgreens' argument that the WCJ's August 21, 2017 judgment substantively changed the original October 3, 2016 order of approval. McCarroll , 156 So.3d at 1176.

We further find no merit in Walgreens' assertion that the amended language could potentially convert the parties' compromise settlement to a lump sum settlement and lead to future challenges by Mr. Clark based on the use of an improper discount rate. Both the amended order and the judgment clearly state that:

Mr. Clark agrees that the inclusion of the foregoing provision cannot and will not be interpreted as any statement regarding whether or not he is now or may become totally and permanently disabled. Mr. Clark understands that the settlement extinguishes his right to all past, present, and future benefits under the Louisiana Workers' Compensation Act, and he waives any claims regarding the proper discount rate pursuant to [ R.S. 23:1274 ].[ ]

Thus, we find no merit in this argument and in this assignment of error.

THIRD ASSIGNMENT OF ERROR

In its final assignment of error, Walgreens argues that the WCJ legally erred in denying both its exception of res judicata and its motion for sanctions. However, based on our finding that the WCJ had the legal authority to amend the original order of approval and the fact that the August 21, 2017 judgment in no way substantively changed that order, we find no merit in this assignment of error.

ANSWER TO APPEAL

In response to Walgreens' appeal, Mr. Clark filed an answer to appeal, in which he seeks an award of attorney fees based on La.Code Civ.P. art. 2164. That article provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages, including attorney fees, for frivolous appeal or application for writs, and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

In Broussard v. Union Pacific Resources Co. , 00-1079, pp. 9-10 (La.App. 3 Cir. 1/31/01), 778 So.2d 1199, 1205, writ denied , 01-589 (La. 4/27/01), 791 So.2d 118, this court stated with regard to frivolous appeal:

"Appeals are always favored and, unless the appeal is unquestionably frivolous, damages will not be allowed." Hampton v. Greenfield , 618 So.2d 859, 862 (La.1993). "Damages for frivolous appeal are only allowed when 'it is obvious that the appeal was taken solely for delay or that counsel is not sincere in the view of the law he advocates even though the court is of the opinion that such view is not meritorious.' " Id. (quoting Parker v. Interstate Life & Accident Ins. Co. , 248 La. 449, 179 So.2d 634, 636-37 (1965) ).

Considering the facts of this case and based on our findings that the WCJ's amendment of the original order approving the settlement in no way altered Walgreens' obligations nor altered the fact that the compromise agreement executed a full release of Mr. Clark's claims against it, we can reach no other conclusion but that this appeal was sought for reasons of delay. In doing so, we find that this appeal is so devoid of merit that it justifies being labeled as frivolous. Thus, finding merit in Mr. Clark's answer to appeal, we grant an award of an additional $3,500.00 in attorney fees as damages for frivolous appeal.

DISPOSITION

For the foregoing reasons, the judgment of the WCJ is affirmed, and we render judgment in favor of Kenneth Clark, awarding him $3,500.00 in attorney fees for work performed by his counsel on appeal. The costs of this appeal are assessed to Walgreen Company.

AFFIRMED AND RENDERED.

      Louisiana Code of Civil Procedure Article 863(B) provides, in part:
      Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
      ....
      (2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

      Sedgwick Claims Mgmt. Servs. Inc. v. Cormier , 02-216, p. 8 (La.App. 3 Cir. 3/26/03), 841 So.2d 1032, 1037, writ denied , 03-1185 (La. 6/20/03), 847 So.2d 1234 (quoting Harrington v. Quality Steel Bldg. Erectors , 95-822, p. 6 (La.App. 3 Cir. 3/6/96), 670 So.2d 1372, 1376, writ denied , 96-1315 (La. 6/28/96), 675 So.2d 1128 )

      42 U.S.C.A. § 424a provides:
      (a) Conditions for reduction; computation
      If for any month prior to the month in which an individual attains retirement age (as defined in section 416(l)(1) ) of this title-
      (1) such individual is entitled to benefits under section 423 of this title, and
      (2) such individual is entitled for such month to-
      (A) periodic benefits on account of his or her total or partial disability (whether or not permanent) under a workmen's compensation law or plan of the United States or a State, or
      ....
      (3) such total of benefits under sections 423 and 402 of this title for such month, an
      (4) such periodic benefits payable (and actually paid) for such month to such individual under such laws or plans, exceeds the higher of-
      (5) 80 per centum of his "average current earnings", or
      (6) the total of such individual's disability insurance benefits under section 423 of this title for such month and of any monthly insurance benefits under section 402 of this title for such month based on his wages and self-employment income, prior to reduction under this section.

      The August 21, 2017 judgment failed to include "R.S. 23:1274" at the end of the language quoted from the June 2, 2017 amended order of approval.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    STATE of Louisiana v. Jesus E. CONTRERAS
    NO. 2017-KA-0735
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 30, 2018
    LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, SCOTT G. VINCENT, ASSISTANT DISTRICT ATTORNEY, 619 S. White Street, New Orleans, Louisiana 70119, COUNSEL FOR STATE/APPELLEE
    HOLLI HERRLE-CASTILLO, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, Louisiana 70073, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Daniel L. Dysart, Judge Dale N. Atkins )
   JAMES F. MCKAY III, CHIEF JUDGE

STATEMENT OF CASE

On October 24, 2013, the State charged Jesus Estrada Contreras, a/k/a Simon Cruz Ramirez, a/k/a Oscar Herrera, a/k/a Modesto Fuentes, a/k/a "Migo" (defendant) with three counts of attempted second degree murder, La. R.S. 14:(27)30.1; one count of the illegal discharge of a firearm during a crime of violence, La. R.S. 14:94(F) ; and one count of possession of a firearm by a convicted felon, La. R.S. 14:95.1.

The defendant pled not guilty on all counts at his arraignment on November 7, 2013.

The defendant's motions to suppress the identification and evidence were denied June 20, 2014.

On May 8, 2015, the trial court denied the defendant's Motion to Quash Count 5 of the Bill of Information.

On July 16, 2015, the State filed its Prieur notice.

On March 14, 2016, the trial judge found the defendant competent to proceed.

The case proceeded to trial on September 6, 2016, and concluded on September 8, 2016, with the jury finding the defendant guilty of three counts of attempted manslaughter (counts 1, 2 and 3) and guilty as charged of illegal discharge of a firearm during a crime of violence (count 4) and possession of a firearm by a convicted felon (count 5).

On October 5, 2016, the defendant filed a Motion for Arrest of Judgment and a Motion for Post-Verdict Judgment of Acquittal, or in the alternative, for a New Trial, which were denied November 7, 2016.

On November 14, 2016, the trial court sentenced the defendant to twenty years at hard labor with credit for time served, on each of his attempted manslaughter convictions. On his conviction for illegal discharge of a firearm during a crime of violence, the defendant was sentenced to twenty years without benefit of parole, probation or suspension of sentence. As to the conviction for being a felon in possession of a firearm, the defendant received a twenty-year sentence without benefit of parole, probation or suspension of sentence, plus a $1,000.00 fine. The sentences on all five counts to be served concurrently.

STATEMENT OF FACT

New Orleans Police Department ("NOPD") latent print examiner Officer Joseph Pollard ("Pollard") identified State's Exhibit 1 as a certified copy of the defendant's fingerprints taken on September 4, 2013, bearing the defendant's date of birth October 28, 1971, State Identification Number 002601023 and FBI Number 319397XA1. Next, Officer Pollard identified State's Exhibit 2 as the card containing the defendant's fingerprints taken by Office Pollard prior to the start of this trial. Officer Pollard then produced a certified conviction packet, State's Exhibit 3 in globo, in the defendant's name and aliases, Jesus Estrada Contreras, a/k/a Simon Cruz Ramirez, a/k/a Oscar Herrera, a/k/a Modesto Fuentes, a/k/a "Migo," bearing Georgia State case number 99CR480C, containing a fingerprint card and plea of guilty to involuntary manslaughter signed by the defendant on September 7, 2000. The fingerprint card and the guilty plea record the defendant's date of birth as October 28, 1971.

Officer Pollard compared the fingerprints on State's Exhibit 1 and 2 to the prints contained on State's Exhibit 3 and determined the three sets of fingerprints were identical and belonged to the defendant.

NOPD Communications Officer Nicole Jones testified that she monitored 911 calls and dispatch audio. Every 911 call is recorded, generates an incident recall or brief summary of the purpose of the call and assigned an item number for identification for future investigation.

Detective Mary Colon ("Detective Colon") investigated the June 6, 2013, shooting at a residence in the 2300 block of Touro Street. When Detective Colon arrived on the scene, she learned Trina Tinsley ("Tinsley"), Dwight Griffin ("Griffin") and Carl Williams ("Williams") had been shot. Two bullet fragments and a beer can, from which the shooting suspect had been drinking, were collected by the crime scene technicians. Detective Colon submitted the beer can for DNA testing and the bullet fragments were sent to ballistics for processing. Detective Colon spoke to Tinsley, Griffin and Williams at the scene but was unable to locate the suspect. She also spoke to people who lived in the neighborhood.

Detective Colon relocated to the hospital where she spoke with one of the victims, Tinsley, who related the events surrounding the shooting. Detective Colon presented Tinsley with a confirmation photo of the defendant. She then prepared an arrest warrant for the defendant and a warrant to search 825 Fourth Street. The search of the residence yielded a Ruger handgun and bullets. Detective Colon submitted all of the evidence to Central Evidence and Property and requested ballistics testing on the handgun and bullets. Detective Colon entered the arrest warrant in the National Crime Information Center Systems and later learned that the defendant had been apprehended in Texas.

Sean McElrath, the section head for the firearms unit of the NOPD Crime Lab, testified that comparison testing of the two bullet fragments obtained from the crime scene revealed that those bullets were fired by the same weapon. However, the test bullet McElrath fired from the Ruger handgun retrieved from 835 Fourth Street did not match the bullet fragments from the shooting scene, demonstrating the Ruger was not the weapon used in this shooting.

In 2012, Williams testified that he knew the defendant from purchasing drugs from him. Williams also knew the defendant through his niece, Tinsley. On June 5, 2013, Williams and Tinsley were at his sister's house in Marrero when he received a call from the defendant accusing him of having broken into the defendant's house. Williams denied the accusation and proceeded to the defendant's house on Touro Street to speak with him. When Williams arrived, the defendant was speaking to another person. The conversation made Williams uncomfortable, so he showed the defendant he was unarmed. The defendant and Williams walked to Tinsley's house, which was just a few doors from the defendant's residence, and began to drink, smoke marijuana and use cocaine. Tinsley and Griffin joined in the smoking and drinking. The defendant went to the bathroom and was gone about thirty minutes.

The defendant returned, sat on the sofa and began firing, wounding Williams and Tinsley. When Detective Colon arrived on the scene, Williams did not say he had been shot but he eventually identified the defendant as the shooter.

Griffin testified the defendant shot at him, Tinsley and Williams on June 5th or 6th, 2013, while they were at Tinsley's residence drinking and smoking marijuana. After a few hours, the defendant went to the bathroom. When the defendant returned, he sat on the sofa and continued to drink and smoke with the others. Without warning, the defendant stood up, removed a gun from his pants pocket and began shooting at Williams. After a few shots, the defendant turned the gun in the direction of Griffin and Tinsley, who dropped to the floor and hid behind the bar. Williams kept asking the defendant why he was shooting at them, but the defendant just turned and walked out the door. Griffin told the investigating officers the defendant was the shooter.

Tinsley testified that she, Williams, and Griffin were together on June 5, 2013, in Marrero when she received several calls from the defendant. She would not take the defendant's calls, so he called Williams. Tinsley and Griffin went to her residence at 2325 Touro Street. Williams went to the defendant's house at 2321 Touro Street. Tinsley received a call from Williams asking her to meet him at the defendant's residence, which she and Griffin did. While the trio was at the defendant's residence, Williams raised his shirt to prove to the defendant he was unarmed. At that point, Tinsley and Griffin returned to her residence. Shortly after, Williams called her and asked if he could bring the defendant to her house. When they arrived at Tinsley's house, the defendant sat on the sofa drinking beer, while she, Williams and Griffin stood in the kitchen, smoking and drinking. A few minutes later, the defendant went to the bathroom. When he came back, he sat on the sofa, put down his beer, removed a gun from his pocket and fired five or six times. Tinsley was shot in the arm and fell to the floor. She heard the defendant and Williams fighting. When the noise stopped, the defendant exited through the front door.

Detective Colon visited Tinsley in the hospital where she identified the defendant as the shooter from a confirmation photo shown to her by Detective Colon.

DNA analyst Tayla Pinell ("Pinell") of the Louisiana State Police Crime Laboratory tested a swab sample taken from a beer can retrieved at the shooting scene and two oral reference swabs obtained from the defendant. Pinell's testing of the swabs produced identical DNA profiles, which statistically demonstrated that the chances the DNA profile belonged to anyone other than the defendant was one in 18.4 quintillion of the Southwest Hispanic population.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

ASSIGNMENT OF ERROR NUMBER 3

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. When the entirety of the evidence both admissible and inadmissible is sufficient to support the conviction, the accused is not entitled to an acquittal, and the reviewing court must review the assignments of error to determine whether the accused is entitled to a new trial. State v. Hearold, 603 So.2d 731, 734 (La. 1992). Thus, although insufficiency of evidence is not the first trial error argued by the defendant, it must be the first considered.

State v. King , 2000-0618, p. 4 (La. App. 4 Cir. 3/7/01), 782 So.2d 654, 658.

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts apply the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court must determine that the evidence viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proven beyond a reasonable doubt. State v. Tate , 2001-1658, p. 4 (La. 5/20/03), 851 So.2d 921, 928.

The principal criteria of a Jackson v. Virginia review is rationality. State v. Mussall , 523 So.2d 1305, 1310 (La. 1988). In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. Id. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all the evidence most favorable to the prosecution must be adopted. Id. , State v. Egana , 97-0318, p. 6 (La. App. 4 Cir. 12/3/97), 703 So.2d 223, 228 ; State v. Green , 588 So.2d 757, 758 (La. App. 4th Cir. 1991). It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott , 2012-1603, p. 11 (La. App. 4 Cir. 12/23/13), 131 So.3d 501, 508. Credibility determinations, as well as the weight to be attributed to the evidence, are soundly within the province of the trier of fact. Id. , ( citing State v. Brumfield , 93-2404 (La. App. 4 Cir. 6/15/94), 639 So.2d 312, 316 ). "Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. Such a determination rests solely with the trier of fact, who may accept or reject, in whole or in part, the testimony of any witness." Id. , ( citing State v. Jones , 537 So.2d 1244, 1249 (La. App. 4th Cir. 1989).) "Absent internal contradiction or irreconcilable conflict with the physical evidence, a single witness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion." State v. De Gruy , 2016-0891, p.11 (La. App. 4 Cir. 4/5/17), 215 So.3d 723, 729-730, writ denied , 2017-0752 (La. 1/9/18), 231 So.3d 652.

Attempted murder, whether first degree or second degree, requires specific intent to kill and the commission of an overt act toward that goal. State v. Bordenave, 93-1682, p. 7-8 (La. App. 4 Cir. 8/23/95), 660 So.2d 1207, 1211. Specific intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his act or failure to act. La. R.S. 14:10(1) ; State v. Marshall, 94-1282, p.5 (La. App. 4 Cir. 6/29/95), 657 So.2d 1106, 1108. Specific intent need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Maxie, 93-2158, p.11 (La. 4/10/95), 653 So.2d 526, 532.

La. R.S. 14:27 provides in part:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; but lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.

Manslaughter is a homicide which would be either first or second degree murder, but the killing is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of self-control and cool reflection; or that he had no intent to kill or commit great bodily harm but was engaged in a felony or intentional misdemeanor affecting the person. La. R.S. 14:(27)31.

To convict a defendant for illegal use of a weapon during a crime of violence, the State must prove: (1) that the defendant intentionally, or through criminal negligence, discharged a firearm, (2) that it was foreseeable that it may result in death or great bodily harm to a human being, and (3) that the defendant did so while committing, attempting to commit, conspiring to commit or otherwise trying to get someone else to commit a crime of violence. State v. Dussett , 2013-0116, p. 5 (La. App. 4 Cir. 10/2/13), 126 So.3d 593, 598.

In order to support a conviction for possession of a firearm by a convicted felon the State must prove beyond a reasonable doubt that the defendant: (1) possessed a firearm; (2) was previously convicted of an enumerated felony; (3) possessed the firearm within ten years of the previous conviction and; (4) had the general intent to commit the crime. State v. Fields , 2012-0674, p. 6 (La. App. 4 Cir. 6/19/13), 120 So.3d 309, 315. See also La. R.S. 14:95.1 ; State v. Scott, 2013-0321 (La. App. 4 Cir. 2/26/14), 136 So.3d 383, 389.

In this case, the defendant argues the State failed to meet its burden of proving his identity as the perpetrator of the charged offenses.

When the key issue is the defendant's identity as the perpetrator, the State is required to negate any reasonable probability of misidentification. State v. Hughes, 2005-0992, p. 5-6 (La. 11/29/06), 943 So.2d 1047, 1051. "Positive identification by only one witness is sufficient to support a conviction." Hughes, 2005-0992, p. 6, 943 So.2d at 1051. A victim's or witness's testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency." State v. Dorsey, 2010-0216, p. 43 (La. 9/7/11), 74 So.3d 603, 633-634, reh'g denied (10/21/11), cert. denied, 566 U.S. 930, 132 S.Ct. 1859, 182 L.Ed.2d 658 (2012) (citing State v. Davis, 2002-1043, p. 3 (La. 6/27/03), 848 So.2d 557, 559 ).

The evidence in this case, when viewed in light most favorable to the State, established the defendant's guilt of the offenses beyond a reasonable doubt. The three victims unequivocally identified the defendant, a person they all knew for some time prior to the shooting, as the man who fired his weapon at them. Specific intent to kill has been found to exist when the defendant fired a gun at the victim. State v. Davis, 93-0663 (La. App. 4 Cir. 2/25/94), 633 So.2d 822. The victims herein testified that the defendant was no more than a few feet from them when he began shooting. The defendant's act of shooting the victims at close range clearly was sufficient to support the conviction for attempted second degree murder and necessarily the lesser included offense of attempted manslaughter. Moreover, the evidence proves the defendant possessed a weapon. The victims saw the defendant withdraw the firearm from his pants' pocket. Finally, the State proved the defendant was a convicted felon at the time he carried the gun through the testimony of Officer Joseph Pollard, who proved the defendant's 2000 plea of guilty to involuntary manslaughter in Georgia.

The jury considered all of the evidence and credited the testimony of the State's witnesses. The evidence was sufficient to allow a rational juror to find beyond a reasonable doubt that the defendant was guilty of attempted manslaughter, illegal use of a weapon during a crime of violence and being a felon in possession of a firearm. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 1

The defendant claims in this assignment of error that the trial court erred by denying his motion to quash the felon in possession of a firearm charge, La. R.S. 14:95.1. The defendant argues that his conviction in the State of Georgia ("Georgia") for involuntary manslaughter cannot serve as the predicate offense for purposes of La. R.S. 14:95.1 because involuntary manslaughter would not qualify as a crime of violence in Louisiana, see La. R.S. 14:2(B), and Georgia's law of involuntary manslaughter is not subsumed by Louisiana's definition of manslaughter. The defendant's argument is not persuasive.

La. R.S. 14:95.1 provides in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in La. R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.

La. R.S. 14:2(B) provides in part:

In this Code, "crime of violence" means an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. The following enumerated offenses and attempts to commit any of them are included as "crimes of violence" ...

According to the police report filed in conjunction with the defendant's conviction for involuntary manslaughter, the defendant said he killed the Georgia victim in self-defense in a drug deal gone bad. Georgia charged the defendant with murder, which was subsequently reduced to involuntary manslaughter, to which the defendant pled guilty. The facts of the shooting incident in Georgia would support a conviction under Louisiana's definition of manslaughter, La. R.S. 14:31, and qualify as a "crime of violence" pursuant to La. R.S. 14:2(B)(4). The conviction was based upon an "offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon." Moreover, because the list of crimes enumerated under La. R.S. 14:2(B) is illustrative, not exhaustive, unlisted offenses may be denominated as crimes of violence under the general definition of the term provided by the statute. See State v. Oliphant, 2012-1176, p. 8 (La. 3/19/13), 113 So.3d 165, 170. Considering that aggravated battery, second degree battery and stalking are enumerated as crimes of violence, La. R.S. 14:2(B)(5), (6) and (37), no less so should involuntary manslaughter. This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

The defendant in this assignment of error maintains that the trial court erred by granting the State's Prieur motion, which allowed the State to introduce evidence of the defendant's 1999 conviction for involuntary manslaughter. The defendant complains despite the State's assertion otherwise, the facts of the present case are not so factually similar to the prior case that the prior case was probative of motive, opportunity, intent, plan, and absence of mistake.

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is not admissible to prove the accused committed the charged crime because he has committed such crimes in the past or to show that the probability that he committed the crimes because he is a person of criminal character. See State v. Garcia , 2009-1578, p. 53 (La. 11/16/12), 108 So.3d 1, 38 ; see also La. C.E. art. 404 A.

The seminal case governing other crimes evidence, Prieur , has been abrogated by the Louisiana Supreme Court in State v. Taylor, 2016-1124, 2016-1183 (La. 12/1/16), 217 So.3d 283. The court reaffirmed the majority of principles set forth in Prieur and its progeny and reiterated that La. C.E. art. 404 B(1) governs the admissibility of other crimes, wrongs, or acts, provided that the prosecution establishes an independent reason for its admission, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.

Even when the evidence is offered for a purpose allowed under Article 404 B(1), the evidence must have substantial relevance independent from showing the accused's criminal character and is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. See Taylor , at p. 12, 217 So.3d at 293. The prosecution must still provide written notice before trial that it intends to offer prior crimes evidence, and the requirement that the court charge the jury as to the limited purpose of the evidence remains intact. See id. , (citing Garcia , at p. 54, 108 So.3d at 39 ). The trial court as gatekeeper must continue to balance the probative value of the other crimes evidence against its inherently prejudicial effect before the evidence can be admitted. See id. , (citing State v. Henderson , 2012-2422, p. 2 (La. 1/4/13), 107 So.3d 566, 567-68 ); see also La. C.E. art. 403.

Taylor emphasized that a pre-trial hearing on admissibility is required. The court further clarified the prosecution's burden of proof at the pre-trial hearing: "[W]hen seeking to introduce evidence pursuant to La. C.E. art. 404 (B), the state need only make a showing of sufficient evidence to support a finding that the defendant committed the other crime, wrong, or act." Taylor , at p. 10, 217 So.3d at 291. Taylor declined to require a specific type of evidence, stating that the sufficiency of testimony or documents, such as a police report or conviction, must be determined on a case-by-case basis. See id. , at p. 12, 217 So.3d at 293.

The State is also allowed to introduce evidence of other crimes, wrongs or acts when the conduct "constitutes an integral part of the act or transaction that is the subject of the present proceeding." This second objection is commonly referred to as the res gestae exception. Evidence admissible under the res gestae exception is not subject to any advance notice requirements by the State. State v. Reichard, 2005-1262, p. 6 (La. App. 4 Cir. 6/21/06), 935 So.2d 727, 731 ; State v. Brown, 2003-1616, p. 10 (La. App. 4 Cir. 3/31/04), 871 So.2d 1240, 1247.

Finally, a trial court's determination of the admissibility of other crimes evidence will not be reversed absent an abuse of discretion. See State v. Copelin , 2016-0264, p. 17 (La. App. 4 Cir. 12/7/16), 206 So.3d 990.

Here, the trial court abused its discretion in allowing the admission into evidence the defendant's prior bad acts under Prieur , and La. C.E. art 404(B). The State failed to provide evidence sufficient to establish that the defendant's conduct fifteen years earlier in Georgia was so similar to the present matter as to constitute a signature crime under a modus operandi theory. The State also failed to establish that the defendant's prior actions constituted res gestae of the instant matter. The only linkable similarities were that the crimes were both violent; a handgun was used to shoot his victims; and the presence and sale of narcotics.

Nevertheless, even if the complained of evidence was erroneously admitted, as we find here, the erroneous admission of other crimes evidence is subject to a harmless-error analysis. See State v. Maise, 2000-1158, p. 8-9 (La. 1/15/02), 805 So.2d 1141, 1147-1148. An error is harmless if the jury's verdict actually rendered at trial was "surely unattributable to the error." Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) ; cf. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 1798, 100 L.Ed.2d 284 (1988) (O'Connor, J.) (harmless-error analysis begins with the premise that the evidence admitted at trial is sufficient to support the verdict and asks whether the state can prove " 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' ") (quoting Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967) ). The evidence of the defendant's guilt was overwhelming. The defendant in the instant matter did point the gun at his victims and fired it several times which shows his requisite specific intent to kill, an essential element of the crimes charged. Additionally the three victims positively identified the defendant as the shooter and DNA evidence placed the defendant at the scene of the crime. Accordingly, we find the trial court error in admitting the evidence of the defendant's prior bad acts to be harmless and no substantive relief is available to the defendant.

ASSIGNMENT OF ERROR NUMBER 4

The defendant in this assignment of error, complains that his sentences are excessive.

The Louisiana Constitution of 1974, Article 1, Section 20, prohibits the imposition of cruel, unusual, or excessive punishment. See also U.S. Const. Amend. 8. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Wilson , 2011-0960 (La. App. 4 Cir. 9/5/12), 99 So.3d 1067, 1071.

In this case, the defendant filed a Motion to Reconsider Sentence arguing that his criminal history consisted of only one conviction for involuntary manslaughter; that the jury found him guilty of the lesser crime of attempted manslaughter on counts 1, 2 and 3 of this indictment, suggesting mitigated culpability for the crimes; and that the trial judge failed to give adequate consideration to the La. C.Cr.P. art.894.1 sentencing guidelines.

The defendant herein received the maximum sentence of twenty years on each of his five convictions. See La. R.S. 14:(27)31; La. R.S. 14:94(F) and La. R.S. 14:95.1. In sentencing the defendant, the trial judge stated:

The court having considered numerous sentencing guidelines under Article 894.1, particularly, these that I will list as follows; that the offender knowingly created a risk of death or great bodily harm to more than one person; the offender used threats of, or actual violence in the commission of the offense; the offense involved multiple victims for which this court will not impose consecutive sentences; the offender used a firearm or other dangerous weapon while attempting to commit or committing this offense, which by its very nature, involved a substantial risk that physical force may be used in the course of committing the offense; the offender foreseeably endangered human life by discharging a firearm during the commission of an offense, which has as an element, the use, attempted use, or threatened use of physical force against a person of another, which by its very nature involves a substantial risk that physical [force] may be used in the course of committing the offense and many other relevant aggravating factors including his failure to show any remorse ...

However, even where there has not been full compliance with La. C.Cr.P. art. 894.1, resentencing is unnecessary where the record shows an adequate factual basis for the sentence imposed. State v. Stukes, 2008-1217, p. 25 (La. App. 4 Cir. 9/9/09), 19 So.3d 1233, 1250 (citing State v. Major, 96-1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So.2d 813, 819 ). Further, La. C.Cr.P. art. 881.4(D) expressly states that an "appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed." State v. Martin , 2013-0628 (La. App. 4 Cir. 5/28/14), 141 So.3d 933, 944.

Taking into consideration the following factors: the defendant held three victims captive; fired at least seven shots at them, wounding two of the three of them; recounting the victims' testimony they believed they were going to be killed; the defendant's complete lack of remorse for the shootings; the defendant's previous conviction for involuntary manslaughter in Georgia; and the trial judge's explicit consideration of La. C.Cr.P. art. 894.1 sentencing guidelines, we find that the trial judge did not abuse its broad discretion in sentencing the defendant. In fact, the jurisprudence supports the defendant's sentences. The sentence of twenty years for attempted manslaughter was found not excessive in the following cases: State v. Holmes , 99-631 (La. App. 1 Cir. 2/18/00), 754 So.2d 1132 ; State v. Hunter, 47,796 (La. App. 2 Cir. 2/27/13), 110 So.3d 619 ; State v. Maze, 2009-1298 (La. App. 3 Cir. 5/5/10), 36 So.3d 1072 ; State v. Perrilloux, 2003-917 (La. App. 5 Cir. 12/30/03), 864 So.2d 843. Moreover, as discussed above, it appears that the evidence presented would have supported convictions for attempted second degree murder, a crime which carries a maximum sentence of 50 years imprisonment at hard labor without eligibility for parole.

Other similar cases have held the maximum twenty-year sentence for conviction for illegal discharge of a firearm during a crime of violence not excessive. See State v. Windsor, 2014-146, 2014 WL 2019253, at 3, (La. App. 4 Cir. 5/14/14) ; State v. Baham , 2014-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 572-73, writ denied , 2015-40 (La. 3/24/16), 190 So.3d 1189 (held maximum sentence not excessive). Likewise, the maximum sentence for possession of a firearm by a convicted felon have been held not excessive. See State v. Gailes, 2013-2209, (La. App. 1 Cir. 6/6/14), 2014 WL 3843883, at 7,(defendant found guilty of manslaughter and possession of a firearm by a convicted felon, and sentenced to the maximum term of twenty years at hard labor for violating La. R.S. 14:95.1 ).

The defendant's complaint that his sentences are excessive is unpersuasive. This assignment is meritless.

CONCLUSION

Accordingly, the defendant's convictions and sentence are affirmed.

AFFIRMED

      The defendant does not speak English; however, he received the assistance of a Spanish translator throughout this proceeding.

      When a defendant is charged with a crime and the jury returns a responsive verdict, the evidence is sufficient to support the responsive verdict if it is sufficient to support the crime as charged, as long as the defendant did not object to the inclusion of this lesser included offense. See State v. Schrader , 518 So.2d 1024 (La. 1988) ; State ex rel. Elaire v. Blackburn , 424 So.2d 246 (La. 1982) ; State v. Beaulieu , 2012-0735 (La. App. 4 Cir. 8/7/13), 122 So.3d 1050.

      Whether that conviction qualified to establish relator's status as a convicted felon for purposes of R.S. 14:95.1 is discussed below in response to Assignment of Error No. 1.

      Ga. Code Ann. § 16-5-3(a) provides:
      A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony. A person who commits the offense of involuntary manslaughter in the commission of an unlawful act, upon conviction thereof shall be punished by imprisonment for not less than one year nor more than ten years.

      This case is published on the Fourth Circuit's website and may be cited as authority despite not being designated for publication.

      Because the statutory maximum changed in 2011 from fifteen years to twenty years, there is a lack of jurisprudence where the defendant was sentenced to the maximum of twenty years but considerable case law upholding the maximum sentence of fifteen years for felon in possession of a firearm where the defendant has prior convictions. See State v. Crawford, 03-1494 (La. App. 5 Cir. 4/27/04), 873 So.2d 768 (the defendant had previous convictions for crimes of violence and a propensity for recidivism, and thus the trial judge did not abuse his discretion in imposing the maximum sentence on the defendant); State v. Taylor, 2004-689 (La. App. 5 Cir. 12/14/04), 892 So.2d 78 (the defendant had numerous felony convictions and the trial court did not abuse its discretion in imposing the maximum fifteen-year sentence).


author: GREMILLION, Judge.

text:
    John Brandt BAXTER, in his Capacity as the Independent Administrator of the Succession of August C. Baxter v. Robert C. LEWIS
    18-72
    Court of Appeal of Louisiana, Third Circuit.
    June 6, 2018 Rehearing Denied July 18, 2018
    Richard E. Anderson, Attorney at Law, 2901 Ridgelake Drive, Suite 105, Metairie, LA 70002, (504) 833-0051, COUNSEL FOR PLAINTIFF/APPELLANT: John B. Baxter, Independant Administrator of the Succession of August C. Baxter
    J. Chris Guillet, Corkern, Crews, Guillet & Johnson, LLC, P. O. Box, 1036 Natchitoches, LA 71458-1036, (318) 352-2302, COUNSEL FOR DEFENDANT/APPELLEE: Robert C. Lewis
    Court composed of John D. Saunders, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

The independent administrator of a succession (the succession) appeals the trial court's judgment sustaining an exception of prescription and dismissing its petition. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The deceased, August C. Baxter (August) died in 2005 at the age of 83. August was married three times. Of his first marriage, two daughters were born: Barbara Eve Schack and Debra A. Mulder. Of his second marriage, two sons were born, the succession administrator, John Brandt Baxter (John), and Eric Baxter (Eric). Named as a defendant is August's step-son, Robert C. Lewis (Robert), who is the child of Luella M. Lewis, August's third wife. August and Luella married in 1978 and established a separate property matrimonial regime.

August suffered two strokes in 1997. Luella obtained a power of attorney to handle his affairs and August created a will in 1999 designating Barbara Schack executrix in the event that Luella predeceased him. In 2002, Luella died. Robert, one day prior to the death of his mother, obtained a power of attorney over the affairs of August. Two days after Luella's funeral, August executed a second codicil to his will. The codicils contain provisions relating to August's wishes during his life as to who will care for him and what nursing home he wished to be placed in. In September 2004, Robert filed a petition to have August interdicted. John and Eric contested the interdiction. Following a hearing in October 2004, August was fully interdicted with Robert named curator and Schack undercurator.

In April 2005, Schack, a California resident, was named executrix of August's will and Schack began administering the estate. On April 13, 2006, John and Eric filed a Petition to Annul Statutory Testament of August Constantine Baxter arguing that August did not have testamentary capacity at the time he executed the will and codicils. Schack, Mulder, and Robert were named as defendants. In November 2007, the defendants filed a motion for summary judgment, and the matter was tried in June 2009. In February 2010, the trial court rendered a judgment declaring the will and codicils null, finding that August lacked testamentary capacity to execute them. Schack ceased being the executor, although she did not resign. John was appointed independent administrator of August's succession on April 14, 2014.

In April 2017, the succession filed a petition against Robert for damages for breach of fiduciary duty. The petition alleged that Robert breached his fiduciary duties to August by self-dealing, fraud, breaching the duty of loyalty, and breach of trust. The 110-page petition sets forth detailed allegations of fraud and self-dealing. The succession urged that the prescriptive period applicable to the claims was that of ten years as found in La.Civ. Code art. 3499. It further argued that contra non valentem applied to suspend prescription and that its claims would not prescribe until April 5, 2020.

Robert filed an exception of prescription, which the trial court took under advisement. In November 2017, the trial court sustained Robert's exception of prescription and dismissed the succession's claims. The succession now appeals.

ASSIGNMENTS OF ERROR

1. The Trial Court erred by sustaining the Prescription Exception and dismissing the Baxter Petition.

2. The Trial Court erred by failing to apply Contra Non Valentem to suspend the prescriptive period for asserting the Breach of Fiduciary Duty Claims.

3. The Trial Court erred by not granting the Plaintiff a reasonable opportunity to amend the Baxter petition.

PRESCRIPTION

Prescription

In the trial court's November 2017 order, it granted Robert's exception of prescription and dismissed the succession's claim finding:

the allegations concern alleged acts of Defendant occurring more than ten (10) years ago, thus, albeit a prescriptive period of one or ten years, the cause of action has prescribed as a matter of law. The alleged acts of malfeasance were known to Plaintiff at the time of decedent's death in 2005. Plaintiff defends with the judicially-created exception to statutory prescription, contra non valentem agree nulla currit praescriptio. However, Plaintiff at all time had standing to remove the former executrix under La.Code Civ.P. art. 3137 or traverse the proposed detailed descriptive list pursuant La.Code Civ. P. art. 3182. Further, standing for Plaintiff to contest the subject power of attorney and the interdiction always existed prior to decedent's passing. Awaiting appointment as Independent Administrator of the decedent's estate did not toll prescription for Plaintiff's claims for other avenues for relief were available in the interim. Therefore, Plaintiff's petition must be dismissed.

The peremptory exception of prescription is provided for in La.Code Civ.P. art. 927. In Pence v. Austin , 15-1371, pp. 4-5 (La.App. 1 Cir. 2/26/16), 191 So.3d 608, 612, the court succinctly set forth the law regarding prescription:

A party pleading prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Cichirillo v. Avondale Industries, Inc. , 2004-2894, p. 5 (La. 11/29/05), 917 So.2d 424, 428. When the face of the petition reveals that plaintiffs claim has prescribed, the burden shifts to the plaintiff to demonstrate that prescription was suspended or interrupted. Kirby v. Field , 2004-1898, p. 6 (La.App. 1 Cir. 9/23/05), 923 So.2d 131, 135, writ denied , 2005-2467 (La. 3/24/06), 925 So.2d 1230. Evidence may be introduced to support or controvert any objection pleaded, but in the absence of evidence, an objection of prescription must be decided upon facts alleged in the petition with all allegations accepted as true. La.Code Civ. P. art. 931 ; Cichirillo , 2004-2894 at 5, 917 So.2d at 428. Moreover, La.Code Civ. P. art. 934 states that "[w]hen the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court." The article further provides, however, that if the grounds of the objection cannot be removed by amendment, the action shall be dismissed. Ramey v. DeCaire , 2003-1299, p. 9 (La. 3/19/04), 869 So.2d 114, 119.

Although John concedes that on the face of the petition, any claims appear to be prescribed according to the ten-year liberative prescriptive period applicable to personal actions, he argues that his petition sets forth facts that the ten-year prescriptive period was suspended by contra non valentem , therefore shifting the burden to Lewis.

The claims asserted are breaches of fiduciary duty which involve not mere negligence, but breach of the duty of loyalty and trust. Therefore, the 10-year prescriptive period applies. See La.Civ.Code art. 3499 and dela Vergne v. dela Vergne , 99-364 (La.App. 1 Cir. 11/17/99), 745 So.2d 1271. We recently summarized the law pertaining to the fiduciary duty one owes to a person over whom control has been taken of his personal affairs. In Succession of McKinley , 16-503, pp.12-13 (La.App. 3 Cir. 12/7/16), 206 So.3d 959, 966-67, writ denied , 17-0368 (La. 4/13/17), 218 So.3d 120, we stated:

Generally, whether a fiduciary duty exists, and the extent of that duty, depends upon the facts and circumstances of the case and the relationship of the parties. As a basic proposition, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties...
A fiduciary relationship has been described as "one that exists 'when confidence is reposed on one side and there is resulting superiority and influence on the other.' " Plaquemines Parish Commission Council v. Delta Development Company, Inc. , 502 So.2d 1034, 1040 (La.1987), quoting Toombs v. Daniels , 361 N.W.2d 801, 809 (Minn.1985).
The word "fiduciary," as a noun, means one who holds a thing in trust for another, a trustee; a person holding the character of a trustee, or a character analogous to that of a trustee, with respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires; a person having the duty, created by his undertaking, to act primarily for another's benefit in matters connected with such undertaking.
State v. Hagerty , 251 La. 477, 492, 205 So.2d 369, 374 (1967), quoting 36A C.J.S. Fiduciary, p. 381. One is said to act in a fiduciary capacity "when the business which he transacts, or the money or property which he handles, is not his own or for his own benefit, but for the benefit of another person, as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other." Hagerty, 251 La. at 493, 205 So.2d at 374-375, quoting BLACK'S LAW DICTIONARY (4th ed.1951).
The term "fiduciary" is defined in the Uniform Fiduciaries Law, LSA-R.S. 9:3801(2), as follows:
"Fiduciary" includes a trustee under any trust, expressed, implied, resulting or constructive, executor, administrator, guardian, conservator, curator, receiver, trustee in bankruptcy, assignee for the benefit of creditors, partner, agent, officer of a corporation, public or private, public officer, or any other persons acting in a fiduciary capacity for any person, trust or estate.
The Uniform Fiduciaries Law appears in the Civil Law Ancillaries under Code Title XV-Of Mandate. By definition, a mandate is "a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal." LSA-C.C. art. 2989. The defining characteristic of a fiduciary relationship, therefore, is the special relationship of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor. Plaquemines Parish Commission Council , 502 So.2d at 1040 ; Hagerty , 251 La. at 493, 205 So.2d at 374-375.
Scheffler v. Adams and Reese LLP , 06-1774, p. 6-7 (La. 2/22/07), 950 So.2d 641, 647-648. Further, "The mandatary is bound to fulfill with prudence and diligence the mandate he has accepted. He is responsible to the principal for the loss that the principal sustains as a result of the mandatary's failure to perform." La.Civ.Code art. 3001. In order to prove breach of a fiduciary duty, the claimant must show that the party acted fraudulently, breached the trust bestowed upon him, or took actions that exceeded those granted to him. Sampson v. DCI of Alexandria , 07-671 (La.App. 3 Cir. 10/31/07), 970 So.2d 55.

Contra non valentem is a jurisprudential doctrine which operates to suspend prescription when a party is unable to bring suit. In Carter v. Haygood , 04-0646, pp.10-11 (La. 1/19/05), 892 So.2d 1261, 1268, the supreme court stated:

At the outset, we observe that prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Foster v. Breaux , 263 La. 1112, 270 So.2d 526, 529 (1972) ; Knecht v. Board of Trustees for Colleges and Universities , 525 So.2d 250, 251 (La.App. 1st Cir.), writ denied , 530 So.2d 87 (La.1988). To soften the occasional harshness of prescriptive statutes, our courts have recognized a jurisprudential exception to prescription: contra non valentem non currit praescriptio, which means that prescription does not run against a person who could not bring his suit. Harvey v. Dixie Graphics, Inc. , 593 So.2d 351, 354 (La.1992) ; see also, Plaquemines Parish Com'n Council v. Delta Development Co., Inc. , 502 So.2d 1034, 1054 (La.1987) ; Cartwright v. Chrysler Corp. , 255 La. 597, 232 So.2d 285, 287 (1970) ; R.O.M., Note, Gover v. Bridges: Prescription-Applicability of Contra Non Valentem Doctrine to Medical Malpractice Actions , 61 Tul.L.Rev. 1541, 1541 n. 1 (1986-1987).
Contra non valentem is a Louisiana jurisprudential doctrine under which prescription may be suspended. See Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 10-4(b), 222 (1996); see also , R.O.M., supra. Moreover, it is an equitable doctrine of Roman origin, with roots in both civil and common law, and is notably at odds with the public policy favoring certainty underlying the doctrine of prescription. See Plaquemines Parish Com'n Council , 502 So.2d at 1055 ; see also , R.O.M., supra.
In Plaquemines Parish Com'n Council v. Delta Development Co., Inc. , 502 So.2d 1034, 1054-55 (La. 1987), we recognized the four instances where contra non valentem is applied to prevent the running of prescription: (1) where there was some legal cause which prevented the courts or their officers from taking cognizance of or acting on the plaintiff's action; (2) where there was some condition coupled with the contract or connected with the proceedings which prevented the creditor from suing or acting; (3) where the debtor himself has done some act effectually to prevent the creditor from availing himself of his cause of action; and (4) where the cause of action is not known or reasonably knowable by the plaintiff, even though this ignorance is not induced by the defendant. These categories thus allow "the courts to weigh the 'equitable nature of the circumstances in each individual case' to determine whether prescription will be tolled." R.O.M., supra at 1545.

According to John's petition, Robert's breaches of his fiduciary duty in handling August's affairs began on June 13, 2002, the day he was appointed August's agent under the power of attorney agreement. However, in his petition, John argues that under contra non valentem ,

[T]he earliest this suit could have been brought by an administrator of [August's] succession was the day after Ms. Schack could have been replaced as executrix. Since the Court rendered the Will Annulment Judgment on February 26, 2010, it was executable after the expiration of the time for a motion for new trial and suspensive appeal elapsed-or about April 5, 2010. Thus, the latest this lawsuit could be filed by the administrator of [August's] succession-[John Baxter]-for purposes of the ten-year prescriptive period is on or about April 5, 2020. Therefore, this lawsuit is timely filed and the claims stated herein have not prescribed.

We disagree. August died in 2005, and John was well aware of the claims existing at that time of his death when Robert's control over August's affairs ceased as evidenced by the fact that the codicils executed under Robert's power of attorney were subsequently invalidated due to lack of testamentary capacity. Whether he had been appointed succession administrator is of no moment. John had recourse against Robert for his claims that Robert breached his fiduciary duties under the power of attorney agreement or for breach of his duties as a curator. The fiduciary relationship existed in both instances. As a legal heir, John had standing to contest the power of attorney granted in Robert's favor. See La.Civ.Code art. 1926 and Noel v. Noel , 15-37 (La.App. 3 Cir. 5/27/15), 165 So.3d 401, writ denied , 15-1121 (La. 9/18/15), 178 So.3d 147. Further, La.R.S. 9:1025 provides that a "relative of an interdict ... may petition a court of competent jurisdiction for the removal of a curator" for breach of his fiduciary duties. Accordingly, John's April 2017 claims for breach of fiduciary duty against Robert prescribed in April 2015.

CONCLUSION

The judgment of the trial court granting the defendant-appellee's peremptory exception of prescription is affirmed. All costs of this appeal are assessed to the Succession of August C. Baxter.

AFFIRMED .