text:
    STATE ex rel. Robert ALLEN v. STATE of Louisiana.
    No. 2003-KH-2520.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Allen, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 369-480; to the Court of Appeal, Fourth Circuit, No. 2003-K-1187.

Writ granted in part; otherwise denied. The district court is directed to consider relator’s request for a cost estimate of the documents he requests from his district attorney file. Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537. The cost estimate is to be offset by the amount relator may have paid for any documents he did not request. In all other respects the application is denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Aaron GENTRAS v. STATE of Louisiana.
    No. 2003-KH-3239.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Gentras, Aaron; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 94-6150; to the Court of Appeal, Fifth Circuit, No. 03-KH-1247.

Writ granted in part; otherwise denied. The district court is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const, art. XII, Section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537.


text:
    STATE of Louisiana v. Byron B. JOHNSON.
    No. 2003-KP-2824.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Byron B. Johnson, applying for Reconsideration of this Court’s Order dated September 3, 2004; Parish of Orleans, Criminal District Court, Div. D, No. 280-463; to the Court of Appeal, Fourth Circuit, No. 2003-K-1414.

Reconsideration denied.


text:
    STATE of Louisiana ex rel. Brooks LIVINGSTON v. STATE of Louisiana.
    No. 2003-KP-3262.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Brooks Livingston, applying for Reconsideration to this Court’s action dated September 3, 2004, from the 32nd Judicial District Court, Parish of Terrebonne, Div. D, No. 396468; to the First Circuit Court of Appeal No. 2003 KW 2259.

Application for reconsideration denied.


text:
    STATE ex rel. Robert TASSIN, Jr. v. Burl CAIN, Warden.
    No. 2004-KP-0545.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Tassin, Robert Jr.; Plaintiff (s); Applying for Reconsideration of this Courts order dated October 1, 2004; Parish of Jefferson, 24th Judicial District Court, Div. B, No. 86-3579.

Reconsideration denied.


text:
    Jude ORGERON v. STATE FARM AUTOMOBILE INSURANCE COMPANY.
    No. 2004-C-2053.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Orgeron, Judge; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, First City Court, No. 99-54667; to the Court of Appeal, Fourth Circuit, No. 2003-CA-2010.

Not considered; not timely filed.


text:
    Michael TRAHAN and Iris Trahan v. John MILLIET and Darlene Milliet.
    No. 2004-C-2055.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Milliet, John et al.; Milliet, Darlene; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, No. 580-637; to the Court of Appeal, Fifth Circuit, No. 04-CA-59.

Not considered; not timely filed.


text:
    STATE of Louisiana v. Raynell BRIGHT.
    No. 2004-KK-2113.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Bright, Raynell; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 442-759; to the Court of Appeal, Fourth Circuit, No. 2004-K-0418.

Not considered; not timely filed.


text:
    BRIGHT MORNING STAR MISSIONARY BAPTIST CHURCH v. Charles E. BROWN and Alberta Brown.
    No. 2004-C-2136.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Brown, Charles E.; Brown, Alberta; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of West Carroll, 5th Judicial District Court Div. B, No. 25,564-B; to the Court of Appeal, Second Circuit, No. 38,333-CA.

Not considered; not timely filed.


text:
    Michael J. CARTER v. Burl CAIN, et al.
    No. 2003-CI-2056.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Carter, Michael J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 496,037; to the Court of Appeal, First Circuit, No. 2002 CW 2332.

Denied. See, e.g., State v. Deloche, 96-1901, p. 1 (La.11/22/96), 684 So.2d 349; see also Coe v. Bell, 161 F.3d 320, 352-55 (6th Cir.1998).


text:
    STATE ex rel. Sean MONROE v. STATE of Louisiana.
    No. 2003-KH-2595.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Monroe, Sean; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 99-947; to the Court of Appeal, Fifth Circuit, No. 03-KH-888.

Denied.


text:
    STATE ex rel. Michael WATKINS v. STATE of Louisiana.
    No. 2003-KH-2626.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Watkins, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 335,572; to the Court of Appeal, Fourth Circuit, No. 2003-K-1173.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Beverly MACK v. STATE of Louisiana.
    No. 2003-KH-2802.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Mack, Beverly; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 381-806; to the Court of Appeal, Fourth Circuit, No. 2003-K-1332.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Harold Joe BLACK v. STATE of Louisiana.
    No. 2003-KH-2866.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Black, Harold Joe;- — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. I, No. 194,296; to the Court of Appeal, Second Circuit, No. 38034-KH.

Denied.


text:
    STATE ex rel. Leroy JOHNSON, Jr. v. STATE of Louisiana.
    No. 2003-KH-2894.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Johnson, Leroy Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 254858; to the Court of Appeal, Third Circuit, No. KH 03-00753.

Denied.


text:
    STATE ex rel. Frank WASHINGTON v. STATE of Louisiana.
    No. 2003-KH-2914.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Washington, Frank; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, Nos. 00-5849, 01-5549; to the Court of Appeal, Fifth Circuit, No. 03-KH-1118.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Darryl WEBSTER v. STATE of Louisiana.
    No. 2003-KH-2915.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Webster, Darryl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 328-538; to the Court of Appeal, Fourth Circuit, No. 2003-K-1295.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Davis WATERS v. STATE of Louisiana.
    No. 2003-KH-2916.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Waters, Davis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. E, No. 44,195.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Larry MORAN, Jr. v. STATE of Louisiana.
    No. 2003-KH-2922.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Moran, Larry Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 00-604; to the Court of Appeal, Fifth Circuit, No. 03-KH-1092.

Denied. La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE of Louisiana ex rel. Charles ANDERSON v. STATE of Louisiana.
    No. 2003-KH-2929.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Anderson, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 338-656; to the Court of Appeal, Fourth Circuit, No. 2003-K-1526.

Denied. Untimely and repetitive. La. C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Edward BURTON v. STATE of Louisiana.
    No. 2003-KH-2930.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Burton, Edward; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 391-509; to the Court of Appeal, Fourth Circuit, No. 2003-K-1384.

Denied.


text:
    STATE ex rel. August WILLIAMS v. STATE of Louisiana.
    No. 2003-KH-2941.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Williams, August; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 202-536.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    Evaristus MACKEY v. STATE of Louisiana.
    No. 2003-CI-2973.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Mackey, Evaristus; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 0.

Denied.


text:
    STATE ex rel. Daniel BENNETT v. STATE of Louisiana.
    No. 2003-KH-3047.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Bennett, Daniel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. D, No. 02-4557; to the Court of Appeal, Fifth Circuit, No. 03-KH-1162.

Denied.


text:
    STATE ex rel. Charles PERRY v. STATE of Louisiana.
    No. 2003-KH-3049.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Perry, Charles; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 01-1022; to the Court of Appeal, Fifth Circuit, No. 03-KH-1110.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Raymond C. FOBBS v. STATE of Louisiana.
    No. 2003-KH-3050.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Fobbs, Raymond C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 386-741; to the Court of Appeal, Fourth Circuit, No. 2003-K-1591.

Denied.


text:
    STATE ex rel. Timothy GOLDSMITH v. STATE of Louisiana.
    No. 2003-KH-3079.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Goldsmith, Timothy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. H, No. 193,468; to the Court of Appeal, Second Circuit, No. 38097-KH.

Denied. See State ex rel. McKnight v. State, 98-2258 (La.App. 1st Cir 12/3/98), 742 So.2d 894.


text:
    STATE ex rel. Rudolph B. WALLS, Jr. v. STATE of Louisiana.
    No. 2003-KH-3145.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Walls, Rudolph B. Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Beauregard, 36th Judicial District Court Div. B, No. CR731-99; to the Court of Appeal, Third Circuit, No. KH03-01182.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2830 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Curtis WALTERS v. STATE of Louisiana.
    No. 2003-KH-3149.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Walters, Curtis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 193,559; to the Court of Appeal, First Circuit, No. 2003 KW 1581.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

WEIMER, J., recused.


text:
    STATE ex rel. Carlos COOPER v. STATE of Louisiana.
    No. 2003-KH-3165.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Cooper, Carlos; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. H, No. 302960; to the Court of Appeal, First Circuit, No. 2003-KW-1752.

Denied.


text:
    STATE ex rel. Michael HARRIS v. STATE of Louisiana.
    No. 2003-KH-3166.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Harris, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 326-532; to the Court of Appeal, Fourth Circuit, No. 2003-K-1724.

Denied.


text:
    STATE ex rel. Denaud EGANA v. STATE of Louisiana.
    No. 2003-KH-3167.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Egana, Denaud; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 98-1038; to the Court of Appeal, Fifth Circuit, No. 03-KH-1236.

Denied.


text:
    STATE ex rel. C.J. JENKINS v. STATE of Louisiana.
    No. 2003-KH-3201.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Jenkins, C. J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. G, No. 292333; to the Court of Appeal, First Circuit, No. 2003 KW 1404.

Denied.


text:
    STATE ex rel. Allen VICKS v. STATE of Louisiana.
    No. 2003-KH-3237.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Vicks, Allen;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 408-240; to the Court of Appeal, Fourth Circuit, No. 2003-K-1434.

Denied.


text:
    STATE ex rel. George PRYOR v. STATE of Louisiana.
    No. 2003-KH-3238.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Pryor, George; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, No. 59,060; to the Court of Appeal, First Circuit, No. 2003 KW 1640.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; cf. La.C.Cr.P. art. 930.3.


text:
    STATE of Louisiana v. Toby W. PAGE.
    No. 2004-KO-1301.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Page, Toby W.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 94531; to the Court of Appeal, First Circuit, No. 2003-KA-1181.

Denied.


text:
    STATE of Louisiana v. Roy SARRIO.
    No. 2004-K-1579.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Sarrio, Roy; — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 96-3301; to the Court of Appeal, Fifth Circuit, No. 04-KA-89.

Denied.


text:
    STATE of Louisiana v. Derek LANDRY.
    No. 2004-KO-1586.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Landry, Derek; — Defendant; Applying for-Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. D, No. 373-137; to the Court of Appeal, Fourth Circuit, No. 2003-KA-1632.

Denied.


text:
    STATE of Louisiana v. John Paul MOROTT.
    No. 2004-KO-1587.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Morott, John Paul; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. A, No. 61,166; to the Court of Appeal, Third Circuit, No. OS-1746.

Denied.


text:
    NEW ORLEANS FIREFIGHTERS LOCAL 632, et al. v. CITY OF NEW ORLEANS, et al.
    No. 2004-C-1590.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re New Orleans Firefighters Association; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 81-11108; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1281.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    NEW ORLEANS FIREFIGHTERS LOCAL 632, et al. v. CITY OF NEW ORLEANS, et al.
    No. 2004-C-1601.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re City Civil Service Commission for the City of New Orleans; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. C, No. 1981-11108; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1281.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    NEW ORLEANS FIREFIGHTERS LOCAL 632, et al. v. CITY OF NEW ORLEANS, et al.
    No. 2004-C-1604.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re New Orleans City of, et al;— Defendant; Applying for Writ of Certiora-ri and/or Review, Parish of Orleans, Civil District Court Div. C, No. 1981-11108; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1281.

Denied.

CALOGERO, C.J., would grant the writ.

VICTORY, J., would grant the writ.


text:
    STATE of Louisiana v. Walter L. BAILEY.
    No. 2004-K-1605.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Bailey, Walter L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial' District Court Div. E, No. 02-2801; to the Court of Appeal, Fifth Circuit, No. 04-KA-85.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Joseph DICKERSON v. Burl CAIN, Warden.
    No. 2004-KP-1607.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re: Dickérson, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 96-2035; to the Court of Appeal, Fifth Circuit, No. 04-KH-528.

Denied.


text:
    STATE of Louisiana v. Rodney Lashun GAY.
    No. 2004-KO-1612.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Gay, Rodney Lashun; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. G, No. 01-F1357; to the Court of Appeal, Second Circuit, No. 38,-393-KA.

Denied.


text:
    STATE of Louisiana v. Ruben CHAVEZ.
    No. 2004-K-1618.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Chavez, Ruben; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 16700; to the Court of Appeal, First Circuit, No. 2003 KA 1781.

Denied.


text:
    STATE of Louisiana v. Toriano JORDAN.
    No. 2004-KP-1629.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Jordan, Toriano; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 97-5605; to the Court of Appeal; Fifth Circuit, No. 04-KH-397.

Denied.

CALOGERO, C.J., recused.


text:
    STATE of Louisiana v. Daniel PICKETT.
    No. 2004-K-1632.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Pickett, Daniel;' — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 02-0437C; to the Court of Appeal, Third Circuit, No. OS-1492.

Denied.


text:
    SUTTON STEEL & SUPPLY, INC., et al. v. BELLSOUTH MOBILITY, INC.
    No. 2004-C-1654.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re BellSouth Mobility, Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. A, No. 91421; to the Court of Appeal, Third Circuit, No(s). 03-1536, CW03-1261.

Denied.

TRAYLOR, J., recused.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Anthony LUBRANO v. NEW ORLEANS POLICE DEPARTMENT.
    No. 2004-C-1708.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Lubrano, Anthony;' — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, New Orleans Civil Service Commission, Nos. 4378, 4400,; to the Court of Appeal, Fourth Circuit, No. 2003-CA-2136.

Denied.


text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC.
    No. 2004-C-1878.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Mays, Jo Ann; — Other; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 52,211; to the Court of Appeal, First Circuit, No. 2001 CA 2414.

Denied.

WEIMER, J., recused.

KIMBALL, J., would grant the writ.


text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC.
    No. 2004-C-1883.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Brigalia, Craig; — Other; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 52,211; to the Court of Appeal, First Circuit, No. 2001 CA 2414.

Denied.

WEIMER, J., recused.

KIMBALL, J., would grant the writ.


text:
    Vera M. RAINEY v. ENTERGY GULF STATES, INC. and Mike Case.
    No. 2004-C-1884.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Brigalia, Craig; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. A, No. 52,211; to the Court of Appeal, First Circuit, No. 2001 CA 2414.

Denied.-

WEIMER, J., recused.

KIMBALL, J., would grant the writ.


text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. Celeste Stewart BYNUM.
    No. 2004-C-1926.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Mortgage Electronic Registration Systems, Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. 0, No. 57,294; to the Court of Appeal, First Circuit, No. 2003 CA 1671.

Denied.


text:
    Cathy DARDEN v. R. Craig SMITH and the Ferriday Villa Partnership.
    No. 2004-CC-1955.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Darden, Cathy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Concordia, 7th Judicial District Court Div. B, No. 38,311; to the Court of Appeal, Third Circuit, No. 03-1144.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Vereta LEE v. EAST BATON ROUGE PARISH SCHOOL BOARD.
    No. 2004-CC-1965.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re East Baton Rouge Parish School Board; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 502-324; to the Court of Appeal, First Circuit, No. 2003-CW-0711R.

Denied.

JOHNSON, J., would grant the writ.

VICTORY, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Richelle A. SIMS v. CITY OF BATON ROUGE/PARISH OF EAST BATON ROUGE.
    No. 2004-CC-2024.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Baton Rouge City of et ah; Baton Rouge Par. of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 365,332; to the Court of Appeal, First Circuit, No. 2004 CW 0827.

Denied.

KNOLL, J., would grant the writ.


text:
    STATE of Louisiana v. Roland B. GIALLONARDO a/k/a Rolin Giallonardo.
    No. 2004-KK-2030.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Giallonardo, Roland B. a/k/a; Gial-lonardo, Rolin; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. A, Nos. 121,842, 121,843; to the Court of Appeal, Second Circuit, No(s). 39,174-KW, 39-175-KW.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Goldie L. LANCLOS v. Edward R. LAMB.
    No. 2004-CC-2032.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Landos, Goldie L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 2003-4241-L; to the-Court of Appeal, Third Circuit, No. CW 04-00691.

Denied.


text:
    Goldie L. LANCLOS v. Edward R. LAMB.
    No. 2004-CC-2033.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Landos, Goldie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. L, No. 2003-4241; to the Court of Appeal, Third Circuit, No. CW 04-00185.

Denied.


text:
    Narinder M. GUPTA d/b/a Pain Management Clinic v. Keri ROBICHEAUX.
    No. 2004-CC-2040.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Gupta, Narinder M. d/b/a; Pain Management Clinic; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. F, No. 2003-003098; to the Court of Appeal, First Circuit, No. 2004 CW 0762.

Denied.


text:
    Preston D. TAYLOR, et al. v. MR. GREEN JEANS TREE SERVICE, L.L.C., et al.
    No. 2004-CC-2046.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Adams, Betty et al.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 207,403; to the Court of Appeal, Third Circuit, No. CW 04-00508.

Denied.


text:
    Opal DOWDEN, et al. v. LEEBO’S STORES, INC., et al.
    No. 2004-C-2051.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Leebo’s Stores Inc. et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 66,671; to the Court of Appeal, Third Circuit, No. 04-196.

Denied.


text:
    Robert J. WOOD v. DAN MONTZ ENTERPRISES.
    No. 2004-OC-2054.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Wood, Robert J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs Office of Workers’ Compensation Dist. 7, No. 02-08227; to the Court of Appeal, Fifth Circuit, No. 04-CA-647.

Denied.


text:
    Robert LEE v. RELIANCE NATIONAL INDEMNITY INSURANCE COMPANY, et al.
    No. 2004-CC-2058.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Louisiana Insurance Guarantee Assn.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 98-15637; to the Court of Appeal, Fourth Circuit, No. 2004-C-0537.

Denied.


text:
    Tammy GLOVER, Individually and on Behalf of Her Son Richard Shawn Glover v. BOGALUSA SCHOOLS, Bogalusa High School, Bogalusa City School System, Richard Cothern, Mutual of Omaha Insurance Company, ABC Insurance Company, and National Union Fire Insurance Company of Louisiana.
    No. 2004-CC-2059.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Bogalusa City School System;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. G, No. 84-048; to the Court of Appeal, First Circuit, No. 2004 CW 0763.

Denied.


text:
    Tammy GLOVER, Individually and on Behalf of Her Son Richard Shawn Glover v. BOGALUSA SCHOOLS, Bogalusa High School, Bogalusa City School System, Richard Cothern, Mutual of Omaha Insurance Company, ABC Insurance Company, and National Union Fire Insurance Company of Louisiana.
    No. 2004-CC-2060.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Glover, Tammy et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. G, No. 84048; to the Court of Appeal, First Circuit, No. 2004-CW-0763.

Denied. May reraise in the event of an adverse judgment.


text:
    Sheldon ANDRUS v. L.A.D. CORPORATION, de Auduong, Acceptance Insurance Company and ABC Insurance Company.
    No. 2004-C-2095.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Andrus, Sheldon;' — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 565-982; to the Court of Appeal, Fifth Circuit, No. 03-CA-1488.

Denied.

KNOLL, J., would grant the writ.


text:
    Sadie ROBINSON v. Gary M. FERRARI, Jr. and Acadian Ambulance Service, Inc.
    No. 2004-CC-2096.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Ferrari, Gary M. Jr. et al.; Acadi-an Ambulance Service Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. B, No. 66,897; to the Court of Appeal, First Circuit, No. 2004 CW 0828.

Denied.


text:
    Doris BUTTS and Tommie L. Butts v. ST. CHARLES GAMING COMPANY, INC. d/b/a Isle of Capri Casino Lake Charles.
    No. 2004-CC-2098.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Butts, Doris et al.; Butts, Tommie L.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Calca-sieu, 14th Judicial District Court Div. D, No. 2003-2957; to the Court of Appeal, Third Circuit, No. CW 04-00514.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    Melba BRAUD v. Dr. William A. CENAC, et al.
    No. 2004-C-2101.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Braud, Melba; — -Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 2003-0584; to the Court of Appeal, Third Circuit, No. 03-1696.

Denied.


text:
    STATE of Louisiana v. Rhonda AUTIN.
    No. 2004-KK-2112.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Autin, Rhonda; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 03-7401; to the Court of Appeal, Fifth Circuit, No. 04-KH-787.

Denied.


text:
    STATE of Louisiana v. Sheree COLTON.
    No. 2004-KK-2121.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Colton, Sheree; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, No. 02-4031; to the Court of Appeal, Fifth Circuit, No. 04-KH-837.

Denied.


text:
    NEW ORLEANS AND BATON ROUGE STEAMSHIP PILOTS ASSOCIATION, et al. v. Clifford E. CLAYTON, et al. Robert Billiott, et al. v. New Orleans and Baton Rouge Steamship Pilots Association.
    No. 2004-CC-2122.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Billiott, Robert; Nance, Michael P.; Streckfus, Vern C.; Hauswalk, Shaun D.; Lahners, William S.; Durham, Dennis P.; Clayton, Clifford E.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. G, Nos. 582-661, 579-770; to the Court of Appeal, Fifth Circuit, No(s). 04-C-847, 04-C-747.

Denied.


text:
    Bennett GEIGER and Peggy Pendarvis, Individually and on Behalf of Their Minor Daughter, Suzanne Nicole Pendarvis v. STATE of Louisiana, through the DEPARTMENT OF HEALTH AND HOSPITALS and Earl K. Long Medical Center.
    No. 2004-CC-2132.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re State of Louisiana et al.; Department of Health & Hospital; Earl K. Long Medical Center; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 428,943; to the Court of Appeal, First Circuit, No. 2004 CW 0784.

Denied. May reraise.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Robert CHACHERE, Jr. and Nina Chachere v. OCHSNER FOUNDATION HOSPITAL, et al.
    No. 2004-CC-2133.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Chachere, Robert Jr.; Chachere, Nina; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 601-809; to the Court of Appeal, Fifth Circuit, No. 04-C-805.

Denied.


text:
    Patrick W. WILLIAMS v. IBERIA PARISH SHERIFF’S DEPARTMENT, et al.
    No. 2004-CP-2140.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Williams, Patrick W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 94879; to the Court of Appeal, Third Circuit, No. CW 04-00565.

Denied.


text:
    Darren S. MILES and Cherie O. Manuel v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 2004-CC-2141.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Republic Western Insurance Company; — -Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Cal-casieu, 14th Judicial District Court. Div. H, No. 2002-3028; to the Court of Appeal, Third Circuit, No. CW 04-00548.

Denied.

TRAYLOR, J., would grant the writ.


text:
    MILLER PROPERTIES, INC. d/b/a Waffle House v. Sandra BREAUX.
    No. 2004-CC-2142.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Miller Properties Inc. d/b/a; Waffle House; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs Office of Workers’ Comp. Dist. 4, No. 03-08171; to the Court of Appeal, Third Circuit, No. WCW 04-00160.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Tommie Mack GRANGER v. CHRISTUS HEALTH CENTRAL LOUISIANA d/b/a Christus St. Frances Cabrini Hospital.
    No. 2004-CC-2143.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Christus Health Central Louisiana d/b/a; Christus St. Frances Cabrini Hospital; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 211,938; to the Court of Appeal, Third Circuit, No. CW 04-00571.

Denied.


text:
    Beli ANDRASI v. LOUISIANA BOARD OF PARDONS.
    No. 2004-CC-2146.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Andrasi, Beli; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 497,261; to the Court of Appeal, First Circuit, No. 2003 CW 2595.

Denied.


text:
    Dana Michelle DAWKINS, Individually and on Behalf of the Minors, Russell Tyler Dawkins and Lauren Ashley Dawkins v. Jules F. LEDET, Debbie H. Ledet, Cocodrie Clubhouse, Inc. and ABC Insurance Company.
    No. 2004-CC-2160.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Essex Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 137,827; to the Court of Appeal, First Circuit, No. 2004 CW 0813.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Michelle PAULSON, Individually and as President of Spectro Chem, Inc. v. Gregg A. PAULSON.
    No. 2004-CC-2162.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Paulson, Gregg A.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 463,238; to the Court of Appeal, First Circuit, No. 2004 CW 0680.

Denied.


text:
    STATE of Louisiana v. Eric L. HUNTER.
    No. 2004-KK-2163.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Hunter, Eric L.;- — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. B, No. C-7553; to the Court of Appeal, Third Circuit, No. KW 04-00817.

Denied.


text:
    Bruce SANDIFER & Lynn Sandifer v. Ryan BOURQUE, et al.
    No. 2004-C-2166.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Bourque, Ryan et al.; Calcasieu Parish Sch. Bd.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 2002-5879; to the Court of Appeal, Third Circuit, No. CA 04-0059.

Denied.


text:
    STATE ex rel. Rodney Lashun GAY v. STATE of Louisiana.
    No. 2004-KH-2586.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Gay, Rodney Lashun; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 01-F1357; to the Court of Appeal, Second Circuit, No. 38,-393-KA.

Denied.


text:
    STATE ex rel. Francis WINCHESTER v. STATE of Louisiana.
    No. 2004-KH-2612.
    Supreme Court of Louisiana.
    Nov. 15, 2004.
   In re Winchester, Francis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 157,877; to the Court of Appeal, First Circuit, No. 2004-KA-0910.

Denied.

WEIMER, J., recused.


author: | .PETTIGREW, J.

text:
    Joseph Lubin JEWELL and Lee Jewell v. Reginald HAIRE.
    No. 2003 CA 1825.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Lonny E. Guidroz, New Roads, for Plaintiffs-Appellees Joseph Lubin Jewell and Lee Jewell.
    John W. Perry, Jr., Robert J. Burns, Jr., Baton Rouge, for Defendants-Appellants Reginald Brian Haire and Allstate Insurance Co.
    Michael L. Hyman, Baton Rouge, for Intervenors-Appellees R.B. Haire Construction Co., Inc. and Louisiana United Businesses Association Self-Insurers Fund.
    Before: CARTER, C.J., PETTIGREW, and MCDONALD, JJ.
   | .PETTIGREW, J.

This is an action in tort for personal injuries sustained by plaintiff while in the course and scope of his employment with R.B. Haire Construction Company, Inc. on property owned by defendant Reginald B. Haire, individually. From a trial court judgment in favor of plaintiff, defendant and his homeowner’s insurer have appealed.

FACTS

Joseph Lubin Jewell (“Mr. Jewell”) was working as a general laborer for R.B. Haire Construction Company, Inc. (“Haire Construction”), a utility contractor engaged in the laying of water, gas, and sewer lines, primarily for municipalities. Haire Construction is owned by Lena Haire, the wife of Reginald Brian Haire (“Mr.Haire”); and Mr. Haire is an employee of the company.

On January 5, 2000, Mr. Jewell was directed by his supervisor, Mr. Haire, to clean out a maintenance shop that was part of the business of Haire Construction, situated on property that Mr. Haire owned personally and located adjacent to Mr. Haire’s residence at 9024 Bueche Road, Bueche, Louisiana. At the trial of this matter, Mr. Jewell testified that prior to the accident he was “instructed to go through some lumber and pick out the good lumber and to — we needed to know our inventory on what kind of materials we needed for the next job.” Mr. Jewell added “the lumber that ... was not appropriate for the job, I put in a burn pile.” In response to questioning by his attorney, Mr. Jewell further testified:

A. So, when I finished that project, I went back inside and the bags and the nail boxes was [sic] in a barrel. So, I took them out, and I had started this fire like 7:30 in the morning and it had burned out. So, I told [a co-worker], I am going to burn these bags up, and we can go — it was knocking off time. We was [sic] fixing to leave.
Q. So, what time was it?
A. It was approximately three o’clock in the evening. And, when I went out and put the bags on it, and around the edge was some ends of burnt off boards. So, I put them on top of it, and I lit a paper bag, walked off from it, and stopped to light a cigarette, and I heard a boom. And, when I looked up, I saw a black ball of ashes, and then I saw the fire. And I had just enough time to throw my hands up. And, that’s when it all began. And they had a canal in back of the burn pile. And, naturally, when you’re on fire, you run for water. And I went down the embankment. I mean, and the fire and the heat stopped, so -

13As a result of the aforementioned incident, Mr. Jewell claimed to have sustained injuries to his hands, forearm, and elbow. The extent of the damages sustained by Mr. Jewell is not disputed.

ACTION OF THE TRIAL COURT

Mr. Jewell and his wife, Lee Jewell, instituted suit against Mr. Haire on June 21, 2000, alleging liability based in tort under theories of general negligence and premises liability.

On October 23, 2000, Mr. Haire filed a Motion for Summary Judgment claiming there existed no genuine issue of material fact in dispute and that he was entitled to a dismissal as a matter of law. Specifically, Mr. Haire argued that La. R.S. 23:1032 barred recovery by Mr. Jewell in tort, and that his exclusive remedy was workers’ compensation. Following a hearing, the trial court denied Mr. Haire’s Motion for Summary Judgment on November 20, 2000. Mr. Haire’s subsequent application seeking a writ from this court was also denied.

On January 5, 2001, Louisiana United Businesses Association Self-Insurers Fund (“LUBA”) and Haire Construction filed a Petition for Intervention naming Mr. Jewell and Mr. Haire as defendants-in-intervention. Mr. Jewell filed a First Supplemental and Amending Petition on October 1, 2002, and named Mr. Haire’s homeowner’s insurer, Allstate Insurance Company (“Allstate”) as an additional defendant in this matter.

This matter was later tried by bench trial on April 4, 2003. Prior to trial, the parties stipulated that Mr. Jewell was in the course and scope of his employment at the time of the incident, and that his damages did not exceed $50,000.00. At the conclusion of the trial, the trial court found in favor of Mr. Jewell and against Mr. Haire and Allstate. The trial court awarded Mr. Jewell the sum of $50,000.00, together with interest and costs for the damages he sustained. From this judgment, Mr. Haire and Allstate have appealed.

JJSSUE PRESENTED FOR REVIEW

In connection with his appeal in this matter, Mr. Haire presents the following issue for review and consideration by this court:

1. Whether or not Mr. Jewell is limited to the exclusive remedy of workers’ compensation with respect to the damages he sustained in connection with the January 5, 2000 incident.

STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

This is a case arising out of a work-related injury. Mr. Jewell has alleged that while in the course and scope of his employment with Haire Construction, he was injured. It is well settled that workers’ compensation is an employees’ exclusive remedy against a fellow worker. La. R.S. 23:1032.

Seeking to avoid the exclusive remedy set forth in La. R.S.23:1032, Mr. Jewell relies on a theory of “dual capacity.” Mr. Jewell contends that at the time of the incident, Mr. Hake was functioning not only as a co-employee, but in the dual capacity of a homeowner who was liable for defects in his premises. Mr. Haire asserts that because Mr. Jewell was an employee in the course and scope of his employment at the time of the incident, he is precluded from suing in tort for a work-related accident.

| sEarlier, in connection with its review of a medical malpractice action, the Louisiana Supreme Court adopted'the “dual capacity doctrine.” In Ducote v. Albert, 521 So.2d 399 (La.1988), the court held that under the circumstances set forth in that case, the workers’ compensation statute did not insulate a company doctor from liability based in tort because the doctor functioned simultaneously in two roles, each carrying a different set of legal obligations. While noting that the company doctor exhibited characteristics common to both a fellow employee and a medical professional, the supreme court ruled that the doctor was amenable to suit in tort based upon his “dual capacity” as an independent contractor. Ducote, 521 So.2d at 400.

In response to the Ducote decision, the legislature amended La. R.S. 23:1032 pursuant to Acts 1989, No. 454, § 2, effective January 1, 1990, to provide that the workers’ compensation remedy is exclusive of all claims that might arise against the employer or any employee of such employer under any dual capacity theory pr doctrine, effectively overruling the supreme court’s decision in Ducote. Louisiana Revised Statute 23:1032(A)(l)(b) presently provides:

This exclusive remedy is exclusive of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.

As this court subsequently noted in Menson v. Taylor, 99-0300 (LaApp. 1 Cir. 4/17/00), 764 So.2d 1079, writ denied, 00-2685 (La.11/17/00), 774 So.2d 983,

There are two exceptions, to this rule. The first is for injuries occasioned by the intentional act of the fellow employee. The second exception involves injuries that occur outside the course and scope of the employment. Thus, although La. R.S. 23:1032 provides for tort immunity to a co-employee of an injured employee, an employee may seek tort recovery from a co-employee who willfully caused the employee’s injuries, or who was not engaged in the normal course and scope of his employment at the time of the injury. [Citations omitted]
The course of employment test refers to time and place, while the scope of employment test examines the employment related risk of injury.

Menson v. Taylor, 99-0300 at 7, 764 So.2d at 1083.

The aforementioned exceptions are set forth in La. R.S. 23:1032(B) and (C)(1) and refer to the normal course and scope of the co-employee’s employment vis-a-vis the | ^business of the employer. See Scott v. Pontchartrain Materials Corporation, 98-1611, p. 5 (LaApp. 4 Cir. 8/12/98), 717 So.2d 682, 685, writ denied, 98-2398 (La.11/20/98), 729 So.2d 555. That is, for the immunity to apply to a co-employee, he must have been engaged at the time of the injury in the normal course and scope of the employer’s business. Id.

As we have noted, the parties stipulated prior to trial that Mr. Jewell was in the course and scope of his employment at the time he was injured. Mr. Jewell’s exclusive remedy against Mr. Haire would be limited to workers’ compensation unless at the time of his injury, Mr. Haire was not engaged in the normal course and scope of his employer’s business.

In his pre-trial deposition, Mr. Haire testified that on the date of Mr. Jewell’s injury,

A. Well, I was called — I was on the job in Lafayette. My wife called me and said that [Mr. Jewell] had — a can blew up in a fire that he had built.
THE COURT REPORTER: In a what? A. In a fire that he had built behind our shop. And we were videoing a job in Lafayette and I came straight home. It took about an hour and twenty minutes. When I got there he was there. And, I asked him what happened. And I believe Lena had already took [sic] him to the hospital in New Roads and he had some paint on his arm, and a little bit on his face.

It is clear that at the time of Mr. Jewell’s injury, Mr. Haire was engaged in the normal course and scope of the business of his employer. Further, it was clear the maintenance shop was part of the business of Haire Construction. He is therefore entitled to the immunity afforded by La. R.S. 23:1032, and Mr. Jewell’s remedy against Mr. Haire is restricted to workers’ compensation. The trial court was manifestly erroneous in holding otherwise.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court that awarded Mr. Jewell the sum of $50,000.00 together with interest and costs is hereby reversed. All costs of this appeal are assessed against plaintiffs, Joseph Lubin Jewell and Lee Jewell.

REVERSED AND RENDERED.

      . Jewell v. Haire, 00-CW-2935 (La.App. 1 Cir. 5/4/2001)(unpublished writ action).


author: J^FOIL, J.

text:
    Melissa MALBREAUGH v. CNA REINSURANCE COMPANY and Lionel Williams.
    No. 2003 CA 2088.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      David L. Bateman, Baton Rouge, for Appellee Plaintiff Melissa Malbreaugh.
    Stephen Dale Cronin, Glen Scott Love, Baton Rouge, for Appellant Defendant State Farm Mutual Automobile Insurance Co.
    Panel composed of Judges FRANK FOIL, RANDOLPH H. PARRO and JAMES E. KUHN.
   J^FOIL, J.

This appeal arises out of a dispute over insurance coverage for an automobile accident. The UM insurer challenges the trial court’s judgment allocating the plaintiffs compensatory damages and punitive damages so that the punitive damages would be paid under the primary insurance policy and the compensatory damages would be paid under the UM policy. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL BACKGROUND

This personal injury suit stems from a car accident that occurred on March 2, 2000. A vehicle driven by plaintiff, Melissa Malbreaugh, was struck by another vehicle driven by Lionel Williams. Mr. Williams was ultimately cited for and pled guilty to driving while intoxicated.

Plaintiff filed suit against Mr. Williams and his insurer, Continental Insurance Company, and against her insurer, State Farm Mutual Automobile Insurance Company, under a policy providing liability, UM, and medical payments coverage. In her petition, plaintiff sought compensatory and punitive damages under La. Civ.Code art. 2815.4, based on Mr. Williams’ intoxication at the time of the accident. The State Farm policy contained an exclusion for punitive damages, but the Continental policy did not.

Continental agreed to pay $24,500 of its $25,000 liability limit, in exchange for a complete release of Mr. Williams and Continental. State Farm denied plaintiffs UM claim based on the punitive damages exclusion.

The parties entered into a joint stipulation of facts in lieu of presenting evidence at trial. They stipulated that Mr. Williams was solely at fault, plaintiffs compensatory damages were $25,000, her punitive damages exceeded $25,000, and the State Farm policy provided UM coverage with a limit of $50,000.

Following briefing and oral argument, the trial court agreed with plaintiff that Mr. Williams was an “uninsured motorist” and ruled that plaintiff |awas entitled to judgment against State Farm for her compensatory damages in the amount of $25,000.

State Farm brings the instant appeal. In two assignments of error, it argues that because the liability limits of the primary policy were sufficient to compensate plaintiff for her damages (both general and special), the vehicle was not an “uninsured vehicle”. As such, it argues, the trial court erred in holding that plaintiff was entitled to the proceeds under the UM coverage of her State Farm policy. Secondly, State Farm asserts that the trial court abused its discretion in allocating the damages so that the punitive damages would be paid under the primary policy (which did not exclude punitive damages) and the compensatory damages would be paid under the State Farm UM policy (which excluded punitive damages).

DISCUSSION

In the present case, all of the factual issues were stipulated to by the parties, so we are asked to address only legal issues. When addressing legal issues, a reviewing court gives no special weight to the findings of the trial court. It conducts a de novo review of questions of law and renders a judgment on the record. Campbell v. Markel American Ins. Co., 00-1448, p. 5 (La.App. 1 Cir. 9/21/01), 822 So.2d 617, 620, writ denied, 01-2813 (La.1/4/02), 805 So.2d 204.

The issue presented is whether an injured party can recover punitive damages under the tortfeasor’s underlying liability policy (that provides coverage for punitive damages), and then recover her compensatory damages from her own UM policy (that specifically excludes coverage for punitive damages). As no jurisprudence directly addresses this issue, we will examine the purpose behind both UM coverage and the imposition of punitive damages under certain circumstances.

Uninsured motorist insurance provides protection for persons insured thereunder who are entitled to recover nonpunitive damages from the owners or operators of uninsured or underinsured motor vehicles because of |4bodily injury, sickness, or disease, including death. La. R.S. 22:680(l)(a)(i). That statute also provides that UM coverage may exclude coverage for punitive or exemplary damages by the terms of the policy or contract. La. R.S. 22:680(2)(b) states that the term “uninsured motor vehicle” includes an insured motor vehicle when the liability coverage is less than the amount of “damages suffered” by an insured. That provision does not specify to what type of damages it refers.

The legislative aim of the uninsured motorist statute is to promote full recovery for damages suffered by innocent automobile accident victims by making uninsured motorist coverage available for their benefit as primary protection when the tortfeasor is without insurance and as additional or excess coverage when he is inadequately insured. Hoefly v. Government Employees Ins. Co., 418 So.2d 575, 578 (La.1982). Punitive damages do not provide compensation for bodily injury; rather, compensatory damages compensate an injured party for the injury sustained by replacing the loss caused by the injury. Exemplary or punitive damages are awarded to the plaintiff over and above compensatory damages and are intended to punish the defendant or make an example of him in order to deter any such future conduct. See BLACK’S LAW DICTIONARY 352 (5TH ed.1979).

We believe it is contrary to the intent of the law to ignore the express exclusion for punitive damages in the State Farm policy and allow plaintiff to recover under that policy due to a forced exhaustion of the underlying limits by the punitive damage award. We feel that a compensatory damage award should be satisfied first, by exhausting the primary policy. Then punitive damages, which are awarded over and above compensatory damages, would |5be satisfied under the excess UM policy. In this case, that excess policy expressly excludes punitive damages. We do not believe that the purpose and intent of the UM statute is served by specifically allocating damages so as to achieve the exhaustion of the underlying policy limits by a punitive damage award. Moreover, requiring payment under a UM policy under this factual scenario neither punishes nor deters the tortfeasor and, thus, does not serve the purpose behind an award of punitive damages. As such, we find the trial court erred in allowing recovery against plaintiffs UM carrier, State Farm.

DECREE

For these reasons, the trial court’s judgment is reversed. Judgment is hereby rendered in favor of defendant, State Farm Mutual Automobile Insurance Company. Costs of this appeal are assessed to plaintiff appellee.

REVERSED AND RENDERED.

      . Former subsection D of La. R.S. 22:1406 was redesignated as R.S. 22:680 by 2003 La. Acts, No. 456.

      . We do not agree with plaintiffs assertion that this result conflicts with this court's decision in Butler v. Allen, 00-1726 (La.App. 1 Cir. 9/28/01), 808 So.2d 746, writ denied, 01-2924 (La.2/1/02), 808 So.2d 331, which did not involve punitive damages.


author: LGAIDRY, J.

text:
    Robert LEVIN v. Carlton MAY.
    No. 2003 CA 2205.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      Craig D. Little, Lafayette, Counsel for Plaintiff/Appellant Robert Levin.
    Mark W. Mercante, Mandeville, Counsel for Defendant/Appellee Carlton May.
    Before: GUIDRY, GAIDRY, and McClendon, jj.
   LGAIDRY, J.

The plaintiff-appellant, Robert Levin, appeals a partial summary judgment on the reconventional demand of the defendant-appellee, Carlton May, as well as an interlocutory judgment denying his motion for summary judgment. For the reasons expressed below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In August of 2002, Carlton May, a resident of St. Tammany Parish, read a newspaper advertisement for the sale of a business, Refill Technologies. He responded to the advertisement by contacting Robert Levin, the business owner. Mr. Levin informed Mr. May that the business involved the refurbishing and sale of printer cartridges, and operated in St. Tammany Parish and surrounding Northshore areas. Based upon the initial financial information provided, Mr. May felt the business opportunity had sufficient potential to justify entering into a preliminary agreement leading to eventual purchase of the business.

The parties first memorialized their agreement in a handwritten document, drafted by Mr. Levin, and dated and signed by both on August 28, 2002. The initial agreement was refined later the same day in a more detailed, typed document entitled “Agreement to Sell Refill Technologies,” also prepared by Mr. Levin and signed by both parties. In this second document, Mr. Levin agreed to sell “all of [his] interests in [his] business” to' Mr. May for the sum of $90,000.00, upon Mr. May’s completion of the following: payment of an initial deposit of $20,000.00 by September 4, |a2002; Mr. May’s verification of the business’s “sales and profit figures”; and his completion of training in its operations over a maximum period of eight weeks. At the expiration of the training period, the balance of $70,000.00 of the sales price was to be paid, and all funds collected by the business in the interim between payment of the deposit and the balance, as well as “any records, inventory or anything else pretaining [sic] to the operations and ownership ” of the business would then be “turned over” to Mr. May by Mr. Levin. (Our emphasis.)

On September 4, 2002, the parties further refined their agreement in a detailed, seventeen-page typed contract prepared by Mr. May, which incorporated by reference the terms of the previous agreement and added more specific terms and provisions, including express warranties, representations, and suspensive conditions made by each party. The contract was styled as an “asset purchase agreement,” ostensibly for the purpose of insulating Mr. May from any personal liabilities of Mr. Levin related to his operation of the business. This final agreement (the “purchase agreement”) provided that Mr. May would pay the initial “refundable” deposit of $20,000.00 on that date and that a “closing” would be held “on or before November 4, 2002,” at which time Mr. Levin would sell and Mr. May would purchase “free and clear of all liens, encumbrances, claims, clouds, charges, equities or imperfections of any nature, ... [all] assets and properties owned or leased by [Mr. May] and used or useful in the Business or related operations.” In that regard, it was expressly provided that Mr. Levin would execute and deliver necessary “bills of sale ... and other instruments of | conveyance and transfer” at the time of the closing, at which time Mr. May would pay the balance of $70,000.00 due.

The final purchase agreement further provided that Mr. May as buyer was not assuming any obligations of Mr. Levin not expressly identified, and that Mr, Levin would give Mr. May and his representatives “full access” to the business’s records and to provide all related information reasonably requested by them. Mr. Levin agreed to provide a complete balance sheet reflecting the business’s financial condition on August 31, 2002, by September 20, 2002. Among the other detailed representations and warranties of the seller set forth in Section 8 were the following:

E. Except as otherwise disclosed by Seller in writing, as of the date of this Agreement, the assets and properties of Seller are not, and as of the Closing they will not be, subject to any liens, encumbrances, claims, clouds, charges, equities or imperfections of any nature.
* * *
N. On the date hereof Seller has, and on the Closing Seller shall have, duly prepared and timely filed all local, state and federal tax returns (including, without limitation, those which relate to FICA, withholding and other payroll taxes) required to be filed by such dates, and paid all taxes, penalties and interest with respect thereto. To the extent that any tax liabilities have accrued but not become payable, the full amounts thereof have been reflected as liabilities or reserved against on the Balance Sheet. After the Closing, Seller shall duly prepare and timely file any and all local, state and federal tax returns which pertain, in whole or in part, to the period on or before the Closing, and pay all taxes, penalties and interest with respect thereto.

Within a matter of days, Mr. May discovered what he considered were substantial inaccuracies in Mr. Levin’s written representations, including the business’s lack of licensing in St. Tammany Parish and its failure to remit sales taxes, despite the fact that they were collected from customers. On September 6, 2002, he advised Mr. Levin (apparently verbally) that he wished to terminate the purchase agreement, requesting the return of his | ¡^deposit. Mr. Levin refused to return the deposit, and filed suit against Mr. May on September 16, 2002, alleging breach of contract and consequential damages. Mr. May answered the petition, denying liability, and incorporated a reconventional demand, seeking the return of his deposit, as well as attorney’s fees, costs, and expenses. Mr. Levin then filed a motion for summary judgment on his cause of action. Following a period of discovery, Mr. May moved for summary judgment on his re-conventional demand.

Both motions were heard on February 19, 2003. By judgment signed on February 27, 2003, the trial court denied Mr. Levin’s motion and granted Mr. May’s motion, ordering the refund of his deposit and holding that he was entitled to indemnity, including costs and attorney’s fees, but deferring the determination of the amounts due in indemnity to a later evidentiary hearing. From that judgment, Mr. Levin has brought this appeal.

DISCUSSION

There is no genuine dispute regarding the material facts. The resolution of this appeal instead is dependent upon issues of law. In order to | ^determine the law applicable to the facts, however, the character of the agreement must be confirmed by review of its terms and the facts evident from the record.

The described object of the original handwritten purchase agreement was “all of [Mr. Levin’s] interest in ‘Refill Technologies.’ ” The second purchase agreement similarly described the property to be sold as “all of [Mr. Levin’s] interests in [his] business, ‘Refill Technologies.’ ” Other language in that agreement provided that anything pertaining to the “operations and ownership” of Refill Technologies was to be delivered to Mr. May upon payment of the balance of the price and that the “ownership” of Refill Technologies was to revert to Mr. Levin in the event of Mr. May’s default in such payment. These provisions are indicative of the parties’ initial intent that the business enterprise itself was to be transferred.

Review of the terms of the final purchase agreement demonstrates that the original intent did not change. The final purchase agreement specifically included “goodwill” within the assets to be sold in Section 1, “Transfer of Assets,” and in Section 4, “Allocation of Purchase Price,” Mr. Levin allocated $85,000.00 of the purchase price toward the value of the goodwill. Section 7, reciting the terms of the closing, refers to “the transfer of the Business.” Further, the inclusion of a non-competition covenant and a provision prohibiting use of the business’s trade name by Mr. Levin reinforce this conclusion. Finally, Mr. Levin’s receipt acknowledging the deposit of $20,000.00 paid by Mr. May describes it as “a refundable deposit towards the purchase of Refill Technologies.” Of particular importance is |7the description of the assets as “free and clear of all liens, encumbrances, claims, clouds, charges, equities or imperfections of any nature” in Section 1.

Despite Mr. Levin’s repeated characterization in his pleadings and briefs of the parties’ agreement as a “sale,” involving the “purchase” of assets by Mr. May, the agreement was clearly not intended to constitute a consummated sale. The final purchase agreement unequivocally stated that the assets would be sold and conveyed to the buyer “[a]t the Closing.” Both parties concede in brief that the final closing of the sale of the business was contingent upon the completion of a “due diligence” investigation by Mr. May regarding Refill Technologies. This is confirmed by Mr. Levin’s agreement in Section 6, “Further Assurances,” to provide Mr. May and his “representatives, auditors and counsel” with “full access” to all of the business’s books, records, and other documents between the date of the agreement and the closing date.

In the area of commercial transactions, the term “due diligence” has acquired the status of a term of art, with similar but subtly different definitions for different transactions, dependent upon their context. Although it is a broad term, in the context of commercial business acquisition “due diligence” may briefly be defined as “the inspection and investigation of ... a business entity before a buyer makes the final decision | ¿whether to consummate an acquisition.” Andrew N. Jacobson, A Narrative Real Estate Acquisition Due Diligence Checklist, 17 No.6 Prac. Real Est. Law. 7 (2001). More precisely, it is “the point in the transaction at which the seller of the business must demonstrate that the representations and warranties made in the course of the negotiations are supported in fact, and the point at which the buyer ... must test [his] assumptions about the seller and its business.” Robert D. Frawley, Due Diligence — The Crucible, 218-DEC N.J. Law. 47 (2002). As the previous writer has explained, “[t]he goal of any due diligence investigation from the buyer’s perspective is to fully understand the seller’s business, its markets, customers, financial condition, legal position, and any other risks or uncertainties inherent in acquiring and operating the business.” Id.

We begin our analysis of the applicable Louisiana law with the basic propositions set forth in La. C.C. art.1983:

Contracts have the effect of law for the parties and may be dissolved only through the consent of the parties or on grounds provided by law. Contracts must be performed in good faith.

The requisite consent for an enforceable contract may be vitiated by error on the part of one or both parties to the contract. La. C.C. art.1948. Louisiana Civil Code article 1949 explains the type of error sufficient to vitiate consent:

Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party.

|9As to the subject matter of the error, La. C.C. art.1950 states the following:

Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object or a substantial quality of that thing, or the person or the qualities of the other party, or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation.

Louisiana Civil Code article 2013 sets forth the general rules relating to dissolution of a contract for nonperformance:

When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved. In either case, the obligee may recover damages.
In an action involving judicial dissolution, the obligor who failed to perform may be granted, according to the circumstances, an additional time.to perform.

Louisiana Civil Code article 2014 provides that “[a] contract may not be dissolved when the obligor has rendered a substantial part of the performance and the part not rendered does not substantially impair the interest of the obligee.” According to the official Comments, this article “prevents a party from receding from a contract on a mere excuse.” La. C.C. art.2014, Revision Comment (b) (1984). See, e.g., Rogers v. Restructure Petroleum Marketing Services, 01-1396, pp. 6-7 (La. App. 3rd Cir.3/6/02), 811 So.2d 1154, 1159.

Louisiana Civil Code article 2017 provides that “[t]he parties may expressly agree that the contract shall be dissolved for the failure to perform a particular obligation,” either as of a specified time or upon notice by the obligee. Mr. May contends that the final paragraph of Section 7, relating to the closing, contains such an express dissolution clause. Although we agree that Mr. May had the right to terminate the agreement, we choose to reach liothis result for other reasons, as the clause’s application to the facts is less than clear.

Mr. Levin contends that his failure to pay outstanding sales and license taxes was not a material breach of the agreement, as its terms allowed him until the closing date to pay any delinquent taxes and related penalties and interest, and that Mr. May put forth that omission and other alleged misrepresentations as mere excuses for a case of “buyer’s remorse.” We initially disagree with his interpretation of the scope of the grace period provided by the pertinent provision. The payment due by the closing date was clearly the payment of those taxes incurred in the interim between the agreement date and the closing date. We further disagree that the failure to have paid the past due sales taxes was not a material breach of the representations made.

The broad concept of due diligence has been described as being composed of four principal types, including financial, business, legal, and environmental. Frawley, supra, at 48. As the foregoing writer has emphasized, “[fjinancial due diligence includes confirmation that all taxes which are due and payable have been paid.” (Our emphasis.) Id. at 49. As Mr. May has correctly observed, the failure to timely pay state and local sales taxes subjects the property of the business to privileges for the amounts | nof the unpaid taxes, as well as the amounts of penalties. See La. R.S. 47:1577; St. Tammany Parish Ordinance 12-170.108. In Harvey v. Dixie Graphics, Inc., 628 So.2d 113, 115-16 (La. App. 4th Cir.1993), writ denied, 634 So.2d 380 (La.1994), it was held that express warranties in a stock purchase agreement that the shares were “free and clear of all encumbrances of any nature” and that the business’s tax returns had “been filed as required by law, and all taxes shown thereon [had] been paid when due” were breached by the seller because its income tax liability had not been discharged. The court accordingly held that the buyer was entitled to be indemnified for the tax assessment and its costs for fees associated with discharging the debt. As in the present case, the purchase agreement also limited the scope of the seller’s representations relating to business liabilities to “material” liabilities.

We take note of this court’s holding in Scogin v. Smith, 612 So.2d 739, 741 (La. App. 1st Cir.1992), that delinquent property taxes on immovable property did not constitute a redhibitory defect entitling the buyer to rescission of the sale. However, as we explained therein, a redhibitory defect refers to some “physical imperfection or deformity,” rather than a legal privilege or lien. Id. In that case, the property was not adjudicated to the state for the sellers’ unpaid taxes until after the sale, and the buyer had the right to redeem the property and to seek indemnity from the sellers. Finding that such a breach of warranty amounted to only a partial eviction, we held that the buyer was not entitled to rescission “under the particular facts of [that] case.” Id. at 742.

In the context of a purchase agreement such as the one at issue, containing numerous specific warranties and representations, error as to the thing sufficient to vitiate consent need not be equivalent to a redhibitory | ^defect. The agreement at issue was not a sale; it was an agreement to buy, or a purchase agreement. The thing, the price, and the consent of the parties are requirements for the perfection of a sale. La. C.C. art. 2439. Although the “thing” and “price” elements of a sale existed, the final element, that of “consent” of the parties, did not. That consent was made contingent upon the fulfillment of the suspensive conditions (the “conditions precedent”) and warranties expressed in the agreement. In acquisition agreements which contemplate the undertaking of due diligence, such as the purchase agreement at issue, it is generally recognized that the seller’s representations fulfill a number of purposes, among them:

The sellers’ representations provide a foundation for the buyer’s right to terminate the acquisition before or at the closing. After signing the acquisition agreement and before the closing, the buyer usually continues its due diligence investigation of the target. Detailed sellers’ representations give the buyer, on its subsequent discovery of bad facts, a right to “walk away” from the acquisition.

Maryann A. Waryjas and Katten M.Z. Roseman, Negotiating the Acquisition Agreement, 1349 PLI/Corp 353, 371 (2003).

Purchase agreements relating to the acquisition of businesses frequently include suspensive conditions, referred to in most jurisdictions other than Louisiana as “conditions precedent,” which must come into being before buyers are obligated to consummate business acquisitions. The potential consequences of failure of one of the suspensive conditions in such a purchase agreement are similar to those for the breach of an express representation by the seller: “If any one of the conditions is not satisfied as of the scheduled closing date, the buyer may decline to proceed with the acquisition (without incurring liability to the sellers) and may exercise its ‘walk away’ right and terminate the acquisition agreement.” Id. at 378. Although these conditions are similar to representations and covenants, in |13that every representation or covenant on the part of the seller normally constitutes a condition, the converse is not true. Id. at 379. By qualifying the buyer’s right to refuse to consummate the acquisition to “material” breaches of representations and warranties, a condition based upon accuracy of prior representations “prevents the buyer from using a trivial breach of the sellers’ representations as an excuse for terminating the acquisition.” Id.

Although the foregoing authority does not rely upon Louisiana law, our law is fully in accord with the principles stated. The cause of the purchase agreement at issue was the eventual transfer of a viable and profitable business enterprise, with a minimum of difficulty associated with the change in ownership and management. The warranties and representations made by Mr. Levin were made “material” by the very nature of the purchase agreement, which required a due diligence investigation by Mr. May, and the breach of the significant express warranties at issue can only be deemed material. Mr. May was thus laboring under an error concerning a “substantial quality” of the object of the agreement, the business, based upon material breaches of express warranties, and such error vitiated his consent. See Adler v. Parkerson, 581 So.2d 1073, 1076 (La. App. 5th Cir.1991), writ denied, 586 So.2d 538 (La.1991), and Clary v. D’Agostino, 95-0447, p. 3 (La.App. 1st Cir.12/15/95), 665 So.2d 792, 794.

In the case of a purchase agreement preliminary to an actual sale, it is only reasonable for either party to have the benefit of “walk away” rights should his expectations or understanding of an important quality of the object of the agreement be in error, particularly if founded upon inaccurate representations or unmet conditions. The purchase agreement at issue is comparable in its purpose to a purchase agreement for immovable property, which is generally held unenforceable against the prospective buyer in the 114event the seller cannot deliver a merchantable title. See, e.g., Lake Forest, Inc. v. Bon Marche Homes, Inc., 410 So.2d 362, 364 (La.App. 4th Cir.1982). As was noted by this court in Buzbee v. Fidelity National Bank, 492 So.2d 15, 21 (La.App. 1st Cir.1986), writs denied, 496 So.2d 1033 (La.1986), “[t]he question of merchantability of title arises frequently in the context of purchase agreements, where the buyer will not close a sale because the seller cannot deliver a satisfactory title.” (Our emphasis.) Merchantability of title as grounds for termination of a purchase agreement has also been held applicable to a purchase agreement for the acquisition of a business, not involving only movable property. Lavenia v. National Business Consultants, Inc., 425 So.2d 840, 843-44 (La.App. 5th Cir.1983), writ denied, 432 So.2d 269 (La.1983).

We further observe that the purchase agreement at issue is very similar to the type of contract, a sale “on approval,” envisioned by La. C.C. art. 2460, which provides:

When the buyer has reserved the view or trial of the thing, ownership is not transferred from the seller to the buyer until the latter gives his approval of the thing.

Under this article, it is expected that the buyer’s view or trial of the thing will be conducted in good faith, and he “may not reject the thing arbitrarily.” La. C.C. art. 2460, Comment (b), Revision Comments— 1993. Like the due diligence investigation in the purchase agreement here, the buyer’s view or trial in a sale “on approval” is a suspensive condition upon which the consummation of the sale depends. See Chartres Corporation v. Honeycutt, 342 So.2d 1251, 1253 (La.App. 4th Cir.1977), writ denied, 345 So.2d 59 (La.1977).

Although the purchase agreement at issue was not a sale “on approval,” the manifest intent of the parties was to achieve the same result in 11Rthe event of a good faith disapproval by the buyer based upon his due diligence investigation. Here, Mr. May was clearly within his rights to put Mr. Levin in default and to withdraw from the purchase agreement, and did so in the exercise of the due diligence investigation contemplated by the purchase agreement itself. The purchase agreement constituted the law between the parties, and its terms should be enforced according to their plain meaning.

DECREE

The judgment of the trial court in favor of the defendant-appellee, Carlton May, and against the plaintiff-appellant, Robert Levin, is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Robert Levin.

AFFIRMED.

GUIDRY, J., concurs in the result.

McClendon, J., concurs.

      . The initial handwritten agreement, apparently intended as a "letter of understanding," simply provided:
      Robert Levin agrees to sell all of his interests in "Refill Technologies” to Carlton May for the sum of $90,000.00. A contract for a deposit of $20,000.00 will be written and signed by Wednesday [,] September 5, 2002 and the deposit is to be paid by that date contigent [sic ] upon verification of the sales figures provided.

      . This practice is not uncommon in business acquisitions. Stuart M. Litwin, Drafting Acquisition Agreements, 913S PLI/Corp 7, 13-14 (1996). But as will be seen, it is not always effective in accomplishing its intended purpose.

      . Appellate courts have the duty to examine their subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-1351, p. 5 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 725. A judgment that determines the merits in whole or part is a final judgment capable of being appealed. La. C.C.P. arts. 1841, 2083. But whether a partial judgment is properly ap-pealable must be determined by reference to the requirements of La. C.C.P. art. 1915. The judgment at issue is determinative of the merits of Mr. Levin's action and the principal issue of Mr. May's reconventional demand, even though it does not formally dismiss Mr. Levin's action. As Mr. May's ancillary claim of attorney fees was not adjudicated, however, ■the judgment at issue must be considered a partial summary judgment. Recognizing the partial character of its judgment, the trial court expressly designated it as a final judgment for purposes of immediate appeal, pursuant to La. C.C.P. art. 1915(B). However, the trial court did not articulate its reasons for doing so. Under the procedure set forth by this court in Motorola, Inc. v. Associated Indemnity Corporation, 02-1351, pp. 16-17 (La.App. 1st Cir. 10/22/03), 867 So.2d 723, 732, the appellate court is required to conduct a de novo review of the propriety of the trial court's certification of a partial " judgment, if no reasons are expressed or if the reasons are otherwise not apparent. As the judgment at issue is essentially determinative of all issues other than the amounts properly recoverable in indemnity, and the determination of that remaining issue will not affect the judgment at issue, the reasons for certification are apparent, and we find no abuse of discretion by the trial court in the certification of the judgment.

      . Goodwill has been recognized in our jurisprudence as “an incidental property right connected with [a commercial] business and capable of sale and transfer from one owner to the other.” Godwin v. Godwin, 533 So.2d 1009, 1010 (La.App. 1st Cir.1988), writ denied, 537 So.2d 1165 (La.1989), citing Ballero v. Heslin, 128 So.2d 453, 455 (La.App. 4th Cir.1961). Specifically, goodwill is defined as “the probability that the customers of the old establishment will continue their patronage.” Id.

      . The concept of “due diligence,” as presently used in the business world, owes much of its development, if not its genesis, to federal securities legislation under § 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b), the corresponding Securities and Exchange Commission Rule 10b-5, and the seminal case of J.I. Case Company v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964), which first recognized a private cause of action for damages for violation of the securities laws. The federal courts subsequently established a showing of “due diligence” as a prerequisite for a plaintiff's recovery of damages in a Rule 10b-5 action, drawing an analogy from comparative fault in tort law. See Clement A. Evans & Company v. McAlpine, 434 F.2d 100, 104 (5th Cir. 1970), cert. denied, 402 U.S. 988, 91 S.Ct. 1660, 29 L.Ed.2d 153; Dupuy v. Dupuy, 551 F.2d 1005, 1017-19 (5th Cir.1977)'

      . Stated somewhat differently, "[t]he purpose of due diligence in the context of a proposed acquisition transaction is to provide the potential acquiror with sufficient information regarding the target company so that the ac-quiror may malte a reasoned decision as to whether or not to pursue such a transaction ...." David A. Katz, Due Diligence in Acquisition Transactions, 1368 PLI/Corp 271 (2003). See, e.g., Harvey v. Dixie Graphics, Inc., 628 So.2d 113, 123 (La.App. 4th Cir.1993) (dissenting opinion).

      . The clause at issue reads:
      In the event that the Closing hereunder shall not be consummated on the date and time specified in this Section for any reason other than some act, omission or material breach by Buyer, this Agreement shall, at the sole option of Buyer, terminate. Any deposit previously paid by Buyer shall be promptly returned to Buyer and neither party hereto shall have any further obligation or liability to the other party hereto. As Mr. May placed Mr. Levin in default within two days of the signing of the agreement on September 4, 2002, and the closing was still pending on or before November 4, 2002, Mr. May's right to invoke the benefit of this clause might be viewed as premature.

      . See also Litwin, supra, n. 2, at 28. (“The buyer will want to verify that all tax returns have been filed by the target company and that all taxes have been paid or reserved for in the target's balance sheet.”)


author: | .DOWNING, J.

text:
    Ann GRAVES and Christy Graves as Executrixes of the Succession of Emory Lea Graves, Sr. v. GARDEN STATE LIFE INSURANCE. Garden State Life Insurance v. Ann Elizabeth Graves, as Executrix of the Succession of Emory Lea Graves, Sr. and Julie Esther Kennedy Fagan. As Executrix of the Succession of Sylvia Antonia Kennedy-Graves.
    No. 2003 CA 2208, 2003 CA 2209.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      Raymond C. Burkart, Jr., Covington, Counsel for Plaintiffs/Appellees Ann Graves and Christy Graves.
    J. Jackson Stamps, Thomas E. Schafer, III, Slidell, Counsel for Defendant/Appellant Julie Kennedy-Fagan.
    B. Aven Bruser, Counsel for Defendant Garden State Life Insurance Co.
    B. Aven Bruser, New Orleans, Counsel for PlaintiffiAppellee Garden State Life Insurance Co.
    Raymond C. Burkart, Jr., Covington, Counsel for Defendant Ann Graves.
    Before: WHIPPLE, FITZSIMMONS and DOWNING, JJ.
   | .DOWNING, J.

This is a dispute over who is entitled to the proceeds of a fifty thousand dollar life insurance policy after the designated beneficiary died at the hands of the insured who then killed himself. Julie Fagan, daughter of the deceased, Sylvia Graves, appeals the granting of a partial summary judgment in favor of Christy and Ann Graves, daughters of Sylvia’s husband, Emory Lea Graves. The trial court decided that although Sylvia was the primary beneficiary on the policy, the proceeds go to her husband’s estate since she predeceased him. The trial court entered partial summary judgment accordingly and certified the judgment as final.

DISCUSSION

Initially, we must determine that we have jurisdiction over this partial final summary judgment. The trial court designated this partial summary judgment as final, “determining that no just reason exist (sic) for delaying an appeal; and that granting an appeal will promote judicial economy and fundamental fairness.” The trial court did not provide reasons for making this determination. Even so, while written or oral reasons are desirable, the failure to give reasons is not a jurisdictional defect. When reasons are lacking, the appellate court is to conduct a de novo review to determine whether a partial judgment is final. Motorola, Inc. v. Associated Indemnity Corp., 02-1351, p. 16 (La.App. 1 Cir. 10/22/03), 867 So.2d 723, 732.

On de novo review we conclude that where there is an issue of insurance policy interpretation that results in the dismissal of the insurer and where the remaining issues of the case do not involve the insurer, then no just reason to delay the appeal exists. Accordingly, this court has jurisdiction to hear this appeal and this appeal is properly before us.

|2Fagan’s sole assignment of error is that the trial court erred in granting the partial summary judgment. She argues that the trial court incorrectly decided that the Estate of Emory Graves was entitled to life insurance proceeds under La. R.S. 22:613 when insurance proceeds cannot be paid to one found judicially responsible for the insured’s death.

Louisiana Revised Statute 22:613(D) reads in part:

(1) No beneficiary, assignee, or other payee under any personal insurance contract shall receive from the insurer any benefits thereunder accruing upon the death, disablement, or injury of the individual insured when said beneficiary, assignee, or other payee is:
(a) Held by a final judgment of a court of competent jurisdiction to be criminally responsible for the death, disablement, or injury of the individual insured; or
(b) Judicially determined to have participated in the intentional, unjustified killing of the individual insured.
(2) Where such a disqualification exists, the policy proceeds shall be payable to the secondary or contingent beneficiary, unless similarly disqualified, or, if no secondary or contingent beneficiary exists, to the estate of the insured. (Emphasis added.)

We disagree with Ms. Fagan’s suggested application of La.R.S. 22:613(D). The intentional act exclusion in this statute specifically addresses intentional acts resulting in the death, disablement or injury of the insured. This act does not address any consequences to the death, disablement or injury to the beneficiary. Nor does any other law that we can find. Therefore, the statute does not apply to this situation.

Further, proceeds from a life insurance policy do not come into existence during the lifetime of the insured. Kambur v. Kambur, 94-775, p. 6 (La.App. 5 Cir. 3/1/95), 652 So.2d 99, 103. Thus, Mr. Graves did not benefit from the proceeds of the policy.

IsFagan also argues that under La.C.C. art. 2338, a policy taken out during marriage is community property. While this may be a correct statement of law, and the policy itself may have been community property, the proceeds from that policy do not form any part of the insured’s estate at his death. T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834, 845 (La.1975). In Louisiana, life insurance proceeds are treated as sui generis. Id. The proceeds do not come into existence during the insured’s life, never belong to the insured, and pass by virtue of contractual agreement between the insured and insurer to the named beneficiary. Id. at 847. Life insurance proceeds, therefore, are not subject to community property claims. Id.

In this case, the policy prescribes what will occur if the beneficiary dies before the insured. The policy clearly states that “[T]he interest of any Beneficiary who dies at the time of, or within 30 days after, the Insured’s death will also terminate if no proceeds have been paid to the Beneficiary.” And “any proceeds payable will be paid to the executor or administrator of the Owner.”

Interpretation of an insurance contract is usually a legal question that can be properly resolved on a motion for summary judgment. Madden v. Bourgeois, 95-2354, p. 3 (La.App. 1 Cir. 6/28/96), 676 So.2d 790, 792. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Gaylord Chemical Corp. v. ProPump, Inc., 98-2367, pp. 3-4 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 352. Reading the policy, there is no reasonable way to interpret the policy language to afford Julie Fagan the relief that she requests. Under the terms of the policy, the estate of Emory Lea Graves is the |4lawful beneficiary of the policy. Therefore, there is no question of fact or law under the terms of the policy itself that prohibits summary judgment in favor of the Graveses.

Louisiana Code of Civil Procedure article 966(B) provides that the mover is entitled to summary judgment if he can show there is no genuine issue of material and that he is entitled to judgment as a matter of law. In the matter before us there are no issues of fact and the only issue before us involves questions of law. Neither La. R.S. 22:613(D) nor the policy prevent the estate of the insured from receiving the proceeds of the policy; nor does the community have a claim on the proceeds. Accordingly, partial summary judgment was appropriate.

DECREE

We affirm the trial court’s judgment and assess all appeal costs to appellant, Julie Esther Kennedy-Fagan, as executrix of the Succession of Sylvia Antonia Kennedy-Graves.

AFFIRMED.