author: h TRAYLOR, Justice. | iWEIMER,J.,

text:
    STATE of Louisiana v. Johnny L. JONES.
    No. 2003-K-3542.
    Supreme Court of Louisiana.
    Oct. 19, 2004.

      Charles C. Foti, Jr., Attorney General, Eddie J. Jordan, Jr., District Attorney, Val M. Solino, Assistant District Attorney, for Applicant.
    Kevin Vincent Boshea, New Orleans, Philip E. Hantel, for Respondent.
   h TRAYLOR, Justice.

The court of appeal reversed the conviction and sentence of the defendant based upon its belief that the defendant was deprived of his constitutional right to peremptorily challenge jurors. Finding that the court of appeal’s reliance on an incorrect minute entry was in error, we reverse the court of appeal’s judgment and remand for consideration of defendant’s other assignments of error on appeal.

FACTS AND PROCEDURAL HISTORY

On September 3, 1998, an Orleans Parish grand jury returned a bill of indictment charging Johnny L. Jones (“Jones” or “defendant”) with the July 29, 1998 first degree murder of his estranged wife, Courtney Russ Jones. It is unnecessary to our resolution of the issue presently before the Court to discuss the facts giving rise to the charges against the defendant which resulted in his conviction. Instead, this opinion will consider those circumstances occurring during the defendant’s trial which raised the instant legal question.

During voir dire, New Orleans Police Department Crime Lab Technician Edward Delery was called in the general venire as a prospective juror for this case. Defense 1 ^counsel challenged Officer De-lery for cause based solely upon the fact that he was a police officer with the New Orleans Police Department. The trial judge denied the cause challenge for Officer Delery, finding that the singular fact that he was a police officer did not make him ineligible to be a juror under the law. The defense then moved for a mistrial without stating further reasons or argument. The trial judge denied the mistrial and the defense used one of its peremptory challenges to remove Officer Delery from the jury venire. The jury was selected and sworn in that day.

Before trial began the next morning, the prosecutor became aware that almost three years prior to trial Officer Delery processed several items in the police department crime lab which had been seized from the crime scene in this case. The prosecutor immediately informed defense counsel of this fact and a hearing was held outside the presence of the jury before testimony began.

Officer Delery testified that he was in charge of the Forensic Light Unit of the New Orleans Police Department’s crime lab. This section of the crime lab uses chemical processes to determine whether identifiable fingerprints can be found on objects. The report generated in this case showed that Officer Delery had been unable to locate any fingerprints on the objects submitted from the crime scene. Officer Delery used the police item number, and not the name of the defendant or arrested subject, when he worked on a case. Thus, Officer Delery was unaware that he had analyzed any evidence for this particular case when he participated in voir dire questioning the previous day. Officer Delery testified that he analyzed approximately 2000 different items in an average year in approximately 500 separate cases. He had no independent recollection of the items analyzed in this case and became aware that he worked on this case only when he received a subpoena from the defense that morning, after the defense was informed by the state that Officer Delery participated 13in the investigation. Officer Delery had not discussed the case with any persons in the jury venire, nor had he discussed the case with the prosecutor’s office prior to that morning.

Assistant District Attorney Jonathan Friedman also testified at the hearing. He stated that he was assigned to the case the week before trial. His review of the district attorney’s case file did not contain the report generated by Officer Delery. Officer Delery’s report was contained in the case file of the lead detective. Because the lead detective was out of town when Friedman was assigned to the case, the prosecutor did not obtain the detective’s file until jury selection. The prosecutor did not actually review the detective’s file until the night after the jury was selected and early that very morning. At 8:15 a.m. that morning, the prosecutor discovered Officer Delery previously analyzed items seized from the crime scene and informed defense counsel of that fact at 8: 45 a.m. Thus, Friedman had no knowledge during jury selection that Officer Delery had worked on the case.

After this testimony was adduced outside the jury’s presence, the trial judge asked defense counsel whether he maintained his motion for mistrial. Defense counsel replied affirmatively. The trial judge denied the motion for mistrial finding that, while there may have been some negligence in the handling of the case, there was no ethical violation committed by the prosecutor.

The trial proceeded with the state presenting its case against Jones, including testimony by Officer Delery regarding his processing of evidence seized at the crime scene. In his trial testimony, Officer De-lery admitted that he had been a potential juror but that, at the time of voir dire questioning, he was unaware that he had actually performed work in this case. Officer Delery explained to the jury that the work he performed on cases was identified by a case number, and not the name of a defendant. |4He also explained to the jury that he handled approximately 500 cases a year in which as many as 2000 individual pieces of evidence would be presented for analysis. Officer Delery explained his job in developing fingerprints and was accepted as an expert in the field of developing and identifying latent fingerprints and in the practices and procedures of the New Orleans Police Department crime lab.

After reviewing the report which he generated in 1998, Officer Delery testified that various chemical tests were performed on the evidence seized from the crime scene. No identifiable fingerprints were located on any of the seized items. Thereafter, the state continued to present the rest of its evidence. The defense called no witnesses but introduced various exhibits.

The jury found Jones guilty as charged of first degree murder. After the jury deadlocked at the penalty phase of the trial, the trial court sentenced Jones to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

On appeal, Jones raised several assignments of error, two of which were considered by the court of appeal. In the first of these two assertions of error, Jones claimed the trial court erred in denying his cause challenge of prospective juror Officer Delery. Upon review, the appellate court found no abuse of the trial court’s discretion in the denial of this cause challenge. Since the record .reflected there was no reason for the cause challenge other than the status of Officer Delery as a police officer, the court of appeal held that no automatic disqualification as a juror was legally valid. The appellate court found no merit to this assignment of error.

However, the court of appeal found merit in a related second claim. Jones argued to the appellate court that the trial court erred in denying his motion for mistrial, made the morning after jury selection when it was discovered that Officer Delery tested | .^evidence in his case. Jones asserted that he exhausted his peremptory challenges. He contended that prejudice resulted when he was forced to use a peremptory challenge to remove Officer De-lery, when Officer Delery should have been stricken from the jury venire for cause. Jones claimed that he was effectively deprived of his constitutional right to peremptorily challenge jurors.

The appellate court held the trial court erred in denying Jones’ re-urged motion for mistrial. Under La.Code Crim. Proc. Art. 775, a trial court “shall” grant a mistrial “when prejudicial conduct in or outside of the courtroom makes it impossible for the defendant to obtain a fair trial.” The court of appeal found that such prejudice occurred here.

The appellate court recognized that Jones would have had a valid cause challenge against Officer Delery had the circumstances of Officer Delery’s participation in the investigation of this case been known at the time of jury selection. However, there was no possibility that the defendant could have ferreted out the information during voir dire since Officer Delery himself was not aware of the cases on which he worked by the defendant’s name. Moreover, Officer Delery had not been contacted by the state regarding his report since the prosecutor had not read the part of the file which contained Officer Delery’s report until after voir dire was completed.

The court of appeal relied upon law which holds that when a trial court erroneously denies a defendant’s challenge for cause, and thereafter exhausts his peremptory challenges, prejudice is presumed and reversible error exists. In this case, the appellate court specifically noted there was no error in the trial court’s denial of the defendant’s challenge for cause. However, the court held that prejudice was presumed and the error was reversible here because of the nature of the right denied and not because the denial was due to an error by the trial court. The court further elaborated [ fithat “[a] defendant who is deprived of his constitutional right to peremptory challenges due to circumstances beyond his control is no less deprived of that right than is a defendant who is deprived of the right by a trial court’s erroneous denial of his challenge for cause.”

A record minute entry reflected that all twelve defense peremptory challenges were expended during voir dire. This fact, coupled with the circumstances surrounding the voir dire of Officer Delery, led the court of appeal to conclude that circumstances beyond the defendant’s control amounted to “prejudicial conduct in or outside the courtroom” under La.Code Crim. Proc. art. 775 which operated to make it impossible for him to obtain a fair trial, that is, “a trial in which he was not effectively deprived of his right to peremptorily challenge jurors.” Finding that reversible error .existed, the court of appeal preter-mitted discussion of other assignments of error raised by the defendant, reversed the conviction and remanded the case for further proceedings. We granted the state’s writ to review the correctness of this determination.

LAW AND DISCUSSION

The state first maintains that the defendant failed to preserve any claim concerning the alleged loss of a peremptory challenge because the grounds for his mistrial motion were unclear. La.C.Cr.P. art. 841 provides that “[i]t is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefore.”

|7The entire exchange regarding the defendant’s cause challenge of Officer Delery was as follows:
DEFENSE COUNSEL:
All right.
I am going to challenge Mr. Delery for cause. He’s a police officer with the New Orleans Police Department.
BY THE COURT:
Well, according to the rules of the Supreme Court he is eligible.
I deny the challenge for cause.
DEFENSE COUNSEL:
Respectfully note my objection.
I move for a mistrial.
BY THE COURT:
I deny the motion for the mistrial.
DEFENSE COUNSEL:
Respectfully note my objection.
BY THE COURT:
All right.
Let’s make our selections.

Thereafter, the defense excused from the jury venire Officer Delery by using one of its twelve peremptory challenges. The jury was selected and sworn that day.

The next morning, the transcript of the trial begins with the notation that a motion hearing was held in open court outside the presence of the jury. The trial judge announced, “Let’s proceed. Let’s have the hearing in regard to the jury problem.” Thereafter, Officer Delery and the assistant district attorney gave testimony. The transcript then reveals the following:

BY THE COURT:
You’re maintaining your motion for a mistrial, sir?
J^DEFENSE COUNSEL:
One moment.
* * *
(Off-the-Record.)
DEFENSE COUNSEL:
Yes, I do.
THE COURT:
I’m denying the motion for mistrial and I find that may be there is some negligence in the handling of the case over a period of time, but I find no — and this is not my prerogative, but I don’t find there’s any ethical violation on Mr. Friedman’s part. Mr. Friedman just took over this case.
Deny the motion.
DEFENSE COUNSEL:
Respectfully note my objection. Your Honor, may I have a moment before we proceed to opening statements?
BY THE COURT:
All right.... [The trial court then took up other docketed matters before starting back with the trial.]

As related above, the defense objected to the trial judge’s denial of a cause challenge as to Officer Delery. Immediately thereafter, defense counsel moved for a mistrial, which was denied. There is no doubt that the basis of the mistrial was the denial of. the cause challenge of Officer Delery.

After it was discovered that Officer De-lery actually performed part of the investigation of the case, a motion hearing was held. The trial judge announced that the hearing was held “in regard to the jury problem.” The only testimony adduced at the hearing was in regard to Officer De-lery’s actual participation in the investigation of the case and the time at which the state became aware of that fact. After the hearing, the trial judge asked defense counsel whether he was maintaining his motion for | flmistrial, no doubt referencing the motion for mistrial asserted the day before in regard to the denial of the defense cause challenge for Officer Delery. The transcript reveals that a discussion was held off the record. Once back on the record, defense counsel answered in the affirmative. Thereafter, the trial judge denied the motion for mistrial and defense counsel asked to have his objection noted for the record.

It is obvious from the record that the trial judge was aware of the grounds for the defense’s objection. The trial judge was informed of the need for a hearing outside the presence of the jury. The only testimony at the hearing referred to Officer Delery’s investigation of this matter and when the state became aware of Officer Delery’s involvement. There was an off-the-record discussion held after the trial judge specifically referred to the mistrial motion.

“There are no formal or codified requirements detailing any specific form for an objection. All that is required is that a party make clear, at the time an order of the court is made or sought, the action which he desires the court to take, together with an objection and grounds.” State v. George, 95-0110 p. 13 (La.10/116/95), 661 So.2d 975, 981. The law requires that “[t]he grounds of counsel’s objections must be sufficiently brought to the attention of the trial judge to allow him the opportunity to make the proper ruling and correct any claimed prejudice to the accused.” State v. Harris, 414 So.2d 325, 327 (La.1982). We find that defense counsel sufficiently preserved any error for review.

In its second assignment of error, the state maintains the court of appeal erred in holding that mistrial should have been granted, premised on its belief that Jones suffered prejudice because he was allegedly denied his constitutional right to peremptorily challenge jurors. The state contends the factual underpinning for this conclusion is in error due to the court of appeal’s reliance on a faulty minute entry |inwhich reflects incorrectly that the defendant exhausted his peremptory challenges.

La. Const. art. 1, § 17 provides that a criminal defendant has the right to challenge jurors peremptorily and that the number of challenges shall be fixed by law. In the trial of an offense punishable by death or necessarily by imprisonment at hard labor, such as the first degree murder charged here, the defendant and the state shall each have twelve (12) peremptory challenges. La.C.Cr.P. art. 799. Consequently, when a defendant uses all of his peremptory challenges, a trial court’s erroneous ruling which deprives him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights. Prejudice is presumed and the conviction and sentence must be reversed. State v. Jacobs, 1999-1659 p. 4 (La.6/29/01), 789 So.2d 1280, 1283; see State v. Cross, 93-1189 p. 6 (La.6/30/95), 658 So.2d 683, 686; State v. Robertson, 92-2660 (La.1/14/94), 630 So.2d 1278, 1280; State v. Ross, 623 So.2d 643, 644 (La.1993).

In order “to prove there has been reversible error warranting reversal of the conviction, defendant need show (1) the erroneous denial of a challenge for cause; and (2) the use of all of his peremptory challenges.” Robertson, 630 So.2d at 1281. Moreover, the defendant must show that he objected at the time of the ruling to the court’s refusal to sustain a challenge for cause of the prospective juror. Cross, 93-1189 p. 6, 658 So.2d at 686. Although the record shows that the defendant objected timely to the trial court’s rulings, Jones cannot show either of the requirements necessary for proving reversible error which would warrant the reversal of his conviction.

The record confirms the court of appeal’s holding that the trial judge did not err in denying the defense challenge for cause to Officer Delery at the time the cause challenge was asserted. The sole ground urged by the defense to strike Officer |nDelery from the jury was his status as a New Orleans police officer. In State v. Ballard, 98-2198 (La.10/19/99), 747 So.2d 1077, this Court held that a person is not automatically disqualified to serve as a juror simply because of his status as a police officer. As noted by the court of appeal, defense counsel did not inquire into any factors relative to the officer’s possible bias or impartiality which would have supported a cause challenge under La.C.Cr.P. art. 797. The trial judge did not abuse his broad discretion in denying the cause challenge as to Officer Delery at the time the cause challenge was made. Jacobs, 1999-1659 p. 5, 789 So.2d at 1284. The appellate court properly affirmed the trial court ruling.

Additionally, the record reveals that Jones did not use all of his peremptory challenges; thus, he is not entitled to a presumption of prejudice. Our review of the transcript confirms that the defense used only eleven (11) of its twelve (12) peremptory challenges despite a minute entry which shows otherwise. When there is a discrepancy between the minutes and the transcript of the same proceeding, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983).

The record reflects that the jury selection procedure was bifurcated, as it often is in first degree murder prosecutions. Initially, the prospective jurors were “death-qualified,” during which the court determined whether their views on the death |12penalty would prevent them from serving as jurors. After several prospective jurors were stricken from the jury-venire for cause during this initial part of the voir dire procedure, the trial court continued with a general voir dire.

The first panel of general voir dire consisted of twenty (20) prospective jurors, one of whom was Officer Delery. From this panel, the transcript reflects that the state used six (6) peremptory challenges and the defense used seven (7) peremptory challenges. The remaining seven (7) persons were selected as jurors.

The second panel of general voir dire consisted of thirteen (13) prospective jurors. From the second panel, the transcript reflects the state used three (3) additional peremptory challenges, for a total of nine (9) peremptory challenges used, and the defense used four (4) additional peremptory challenges, for a total of eleven (11) peremptory challenges used. In addition, two (2) prospective jurors from the second general voir dire panel were stricken for cause, both at the urging of the defense. The remaining four (4) persons were selected as jurors, bringing the total number of jurors selected to eleven (ll).

|13The third, and final, panel of general voir dire consisted of nine (9) prospective jurors. Although the final strike conference is not completely transcribed, the transcript reveals that the first-called prospective juror in this third panel was stricken for cause by the court at the urging of the defense. The transcript does not reflect that any peremptory challenges were used by either the defense or the state in this panel. This means that once the cause challenges were complete, the next prospective juror would be seated as the twelfth juror. Indeed, the transcript reflects that the second-called prospective juror in this third panel was seated as the twelfth juror. Likewise, since no peremptory challenges were used during the third general voir dire panel, the prospective juror next in line would be seated as the alternate juror. The transcript shows that this occurred and the third-called prospective juror in the third general voir dire panel was seated as the alternate juror. The remaining six (6) prospective jurors were excused because all the jurors and the alternate juror had been selected.

The inaccurate minute entry may have been based on an equally inaccurate jury selection sheet. That sheet shows that the defense’s final peremptory challenge was used on prospective juror # 100, Edward Williams. The transcript, however, reveals that this prospective juror was stricken for cause during the initial “death-qualification” |uportion of voir dire and was not even a participant in the general voir dire, having been excused before that began.

A careful reading of the entire voir dire procedure shows that all prospective jurors were accounted for and were either excused for cause, excused by peremptory challenge, selected as a juror or excused because the jury had already been selected. This careful reading confirms the state’s assertion that the defense used only eleven (11) of its peremptory challenges and so failed to exhaust them.

The defendant has presented no information which shakes our conclusion that the defense failed to exhaust his peremptory challenges. Indeed, appellate defense counsel candidly admitted during oral argument that he had not read the entire voir dire transcript prior to submitting his appellate brief to the court of appeal. He, too, like the court of appeal, relied upon the incorrect minute entry to argue that the defense had exhausted its peremptory challenges. Trial counsel was also present at oral argument. Trial counsel forthrightly stated that he could not honestly recall the details of the last strike conference and could not, as an officer of the court, assert that any other defense peremptory challenges were used which had not been reflected in the transcript. We conclude that the defense did not exhaust its peremptory challenges.

This Court has held that the defense’s failure to exhaust its peremptory challenges bars review on appeal of a claim of an improperly denied peremptory challenge. See State v. Wessinger, 98-1234 p. 15 (La.5/28/99), 736 So.2d 162, 178, cert. denied, 528 U.S. 1050, 120 S.Ct. 589, 145 L.Ed.2d 489 (1999) (where the defendant exercised only eight of the twelve peremptory challenges that he is given by La. C.Cr.P. art. 799, “we are not required to reach the issue of whether the trial judge erroneously denied the challenges for cause that are the subject of this assignment of [terror.”); State v. Koon, 96-1208 p. 17 (La.5/20/97), 704 So.2d 756, 767, cert. denied, 522 U.S. 1001, 118 S.Ct. 570, 139 L.Ed.2d 410 (1997) (“... we need not reach the issue of whether failure to dismiss [a prospective juror] for cause was error because the defense did not use all its peremptory challenges.”); State v. Mitchell, 94-2078 p. 4 (La.5/21/96), 674 So.2d 250, 254, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996) (“In the instant case, we need not reach the issue of whether there was an erroneous denial of defendant’s challenge for cause, since the record reveals that defendant failed to use all his peremptory challenges.”).

In recognition of this Court’s jurisprudence, Jones argues in the alternative that the special circumstances in this case support a departure from the general rule. Other than arguing that the circumstances here presented a unique situation, the defendant fails to persuade the Court of a need for an exception in this case. The defendant failed to argue, either in brief or at oral argument, that he suffered actual prejudice due to the trial judge’s ruling denying his cause challenge of Officer De-lery. Officer Delery did not serve on his jury. Jones did not argue that he was forced to accept an objectionable juror due to his exhaustion of peremptory challenges. Nor did Jones argue that he hoarded his remaining peremptory challenge and seated a questionable juror. See State v. Vanderpool, 493 So.2d 574, 575 (La.1986). Consequently, Jones fails to argue or show that he suffered any actual prejudice which would support the mistrial motion.

CONCLUSION

Under these circumstances, where there is no presumption of prejudice because the defendant did not exhaust his constitutionally and statutorily protected peremptory challenges, and where there has been no showing of actual prejudice which resulted from the trial judge’s ruling, the court of appeal erred in holding that the defendant’s |1fire-urged motion for mistrial should have been granted. There was no effective deprivation of Jones’ right to peremptorily challenge jurors, and thus, no grounds upon which to base a mistrial.

REVERSED AND REMANDED TO THE COURT OF APPEAL FOR CONSIDERATION OF THE OTHER ISSUES RAISED BY DEFENDANT ON APPEAL.

WEIMER, J., additionally concurs and assigns reasons.

| iWEIMER,J.,

concurring.

I concur in the result while continuing to adhere to my concurrence in State v. Ballard, 97-0233, p. 1 (La.App. 1 Cir. 7/14/98), 718 So.2d 521, 529.

      . As noted by the court of appeal, "[wjhile it is clear that Edward Delery was employed as a forensic light examiner in the New Orleans Police Department Crime Lab, it is less clear that he was a police officer. However, he did not correct the attorneys who addressed him as officer....” State v. Jones, 2003-0829 p. 3 (La.App. 4 Cir. 11/26/03), 862 So.2d 266, 268. Consequently, Edward Delery will be referred to in this opinion as Officer Delery.

      . State v. Jones, 2003-0829 p. 8 (La.App. 4 Cir. 11/26/03), 862 So.2d 266, 271.

      . State v. Jones, 2003-0829 (La.App. 4 Cir. 11/26/03), 862 So.2d 266.

        .State v. Jones, 2003-3542 (La.5/7/04), 872 So.2d 1068.

      . Trial record, p. 210-211.

        . Id., p. 211.

      . Id., p. 226.

      . Id.

      . Id., p. 243.

      . Id., p. 210.

      . Id., p. 211.

      . La.C.Cr.P. art. 797 provides in pertinent part as follows:
      "The state or the defendant may challenge a juror for cause on the ground that:

      (2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;....”

      . The September 25, 2001 minute entry provides in pertinent part: "12 jurors and 1 alternate were duly impaneled, accepted by the State and defense, and sworn in as jurors in this case. The State excused 9 juror(s) and the defense excused 12 juror(s),.... ” Trial record, p. 35.

      .In State v. Mitchell, 94-2078 p. 4 (La.5/21/96), 674 So.2d 250, 254, cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 538 (1996), this Court stated "La.C.Cr.P. art. 798(2)(a), which incorporates the standard of Witherspoon [v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)], as clarified by Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985), provides that it is good cause for a state challenge that a prospective juror would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him.” The procedure to make this determination is sometimes referred to as "Witherspoon-qualification” or "death-qualification.”

      . Trial record, p. 193-194.

      . Id., p. 211-212.

      . Id., p. 212.

      . Id., p. 212. Although page 213 is missing from the transcript, a careful reading of the subsequent pages confirms that thirteen prospective jurors were questioned and accounted for in the second general voir dire panel.

      . Id., p. 215-216.

      . Id., p. 215.

      . Id., p. 216.

      . Id., p. 216-217.

      . The record reveals that none of the strike conferences were transcribed verbatim. Any objections were transcribed in whole, and the transcript notes which prospective jurors were excused peremptorily by the state or defense, as well as those prospective jurors who were ultimately selected as jurors. See Trial record, pp. 210-212, 215-216, 219-220.

      . Id., p. 219.

      . Id., p. 220.

      . Id., p. 220.

      . Id., p. 220.

      . Id., p. 61-64.

      . Id., p. 191.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Cliff Robert COOK v. STATE of Louisiana.
    No. 2004-KP-0311.
    Supreme Court of Louisiana.
    Oct. 15, 2004.
   In re Cook, Cliff Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, 23rd Judicial District Court Div. E, No. 9034; to the Court of Appeal, First Circuit, No. 2003 KW 2156.

Writ granted. The district court is ordered to grant relator an out-of-time appeal and to appoint counsel to represent relator on appeal. See Lofton v. Whitley, 905 F.2d 885 (5th Cir.1990); State ex rel. Banks v. State, 92-1802 (La.2/11/94), 634 So.2d 366; State ex rel. Tucker v. State, 624 So.2d 1211 (La.1993). If appointed counsel, after a review of the record, finds no basis for assigning error on appeal, he or she may follow the procedures set out in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176 and State v. Benjamin, 573 So.2d 528, 530 (La.App. 4th Cir.1990).


author: I ¡.DOWNING, J.

text:
    BANKERS TRUST COMPANY OF CALIFORNIA N.A. as Trustees for Manufactured Housing Series 97-2 v. Darlene Wheeler COOLEY (Darlene Wheeler) Divorced Wife by First Marriage of Archy Wilson, Now Wife of/and John H. Cooley
    No. 2003 CA 1942.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Nov. 9, 2004.
    Adriel G. Arceneaux, New Orleans, Counsel for Plaintiff/Appellant Bankers Trust Co. of California.
    Alan J. Levith, Hammond, Counsel for Defendani/Appellee Darlene and John Cooley.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   I ¡.DOWNING, J.

Bankers Trust Company of California, N.A., as Trustee for Manufactured Housing Series 97-2 (Bankers Trust), plaintiff/appellant, appeals a judgment in favor of Darlene Wheeler Cooley permanently enjoining Bankers Trust from proceeding by executory process to enforce a mortgage against her. The judgment reserved Bankers Trust’s right to proceed via ordi-naria. For the following reasons, we affirm the judgment of the trial court.

The sole issue in this appeal as framed by the appellant is, “[wjhether ex-ecutory process is proper where the assignment of the note is lost and there is no authentic evidence of the chain of assignments.” Here, Bankers Trust is seeking to enforce a mortgage by executory process against Ms. Cooley. The mortgage note was assigned to Bankers Trust, who reassigned it to Manufactured Housing Series 97-2. Bankers Trust acknowledges, however, that the original of the assignment from it to Manufactured Housing Series 97-2 was lost and was not recorded in the public records of Tangipahoa Parish.

On appeal, Bankers Trust argues that La. C.C.P. art. 2635 allows it to use execu-tory process without authentic evidence of the assignment since the code article does not require it. Specifically, this article provides:

A. In order for a plaintiff to prove his right to use executory process to enforce the mortgage, security agreement, or privilege, it is necessary only for the plaintiff to submit with his petition authentic evidence of:
(1) The note, bond, or other instrument evidencing the obligation secured by the mortgage, security agreement, or privilege.
(2) The authentic act of mortgage or privilege on immovable property importing a confession of judgment.
13(3) The act of mortgage or privilege on movable property importing a confession of judgment whether by authentic act or by private signature duly acknowledged.
B.This requirement of authentic evidence is necessary only in those cases, and to the extent, provided by law. A variance between the recitals of the note and of the mortgage or security agreement regarding the obligation to pay attorney’s fees shall not preclude the use of executory process.

While this code article does not specifically require authentic evidence of an assignment before executory process can be utilized, this principle is well established in Louisiana law. In Aetna Life Ins. Co. v. Lama Trusts, 28,328, p. 5 (La. App. 2 Cir. 5/8/96), 674 So.2d 1086, 1089, the court recited that, “Authentic evidence of the assignment and endorsement of an order note is required to support the use of executory process.” See also Colonial Financial Service, Inc. v. Stewart, 481 So.2d 186, 189 (La.App. 1 Cir.1985) and American Sec. Bank of Ville Platte v. Deville, 368 So.2d 167, 169 (La.App. 3 Cir. 1979). Comment (d) to La. C.C.P. art. 2635 provides in pertinent part as follows:

(d) Another situation where additional evidence in authentic form is needed to prove the plaintiffs right to bring the executory proceeding is where the mortgage note is made payable to a named mortgagee, who subsequently transfers the note to a third person, who in turn institutes the executory proceeding to enforce the mortgage. In such a case, the transfer and endorsement of the mortgage note to the plaintiff must be evidenced by an authentic act, and a certified copy annexed to the petition. Miller, Lyon & Co. v. Cappel, 36 La. Ann. 264 (1884).

Comment (a) to La. C.C.P. art 2637 summarizes the relevant application of Article 2635 as follows: “The requirements of authentic evidence, under the cases cited in the Comments under Art. 2635, supra, are limited to evidence of: ..., (3) the plaintiffs right to enforce the mortgage or privilege under the executory process.”

| ¿Even so, Bankers Trust argues La. C.C.P. art. 2637 D exempts them from the need for authentic evidence of its assignment. La. C.C.P. art. 2637 D provides as follows:

D.Evidence of a name change, merger, purchase and assumption, or similar disposition or acquisition, of a financial or lending institution may be proved by a verified petition or supplemental petition, or by an affidavit or affidavits submitted therewith by an appropriate officer of the successor entity.

However, Comment (c) to La. C.C.P. art 2637 explains that this paragraph refers to proving the identity of the defendant, not the plaintiff, as follows:

(c) The last two paragraphs of the article [of which “D” is one] cover the cases where it is necessary to prove the right of plaintiff to proceed against the defendants named where actually no evidence could be obtained easily to prove that these parties are the proper defendants. In these instances it is necessary to require only the submission of a certified copy of the judgment of possession, or the letters, to establish a presumption that the parties sued are the proper defendants.

Louisiana Code of Civil Procedure art. 2751 allows a defendant in an executory proceeding to arrest the seizure and sale of property by an injunction when the procedure required by law for an executo-ry proceeding has not been followed. Since Bankers Trust did not follow the procedure required by law by producing authentic evidence of the assignment from Bankers Trust to Manufactured Housing Series 97-2, the trial court did not err in enjoining the use of executory proceedings against Ms. Cooley.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs are taxed to Bankers Trust. We issue this memorandum opinion in compliance with Uniform Rules — Courts of Appeal, Rule 2-16.1. B.

AFFIRMED.

      . Bankers Trust also argues that La. R.S. 9:4422 also exempts it from the need for authentic evidence of an assignment when employing executory process. By its terms, however, this statute is limited to instances where an instrument subject to executory process would be negotiable “but for a limitation of personal liability of the maker or any comaker secured by a mortgage or privilege.” This limitation is absent from the instruments before us. Therefore, La. R.S. 9:4422 has no application in this matter.


author: LTERRI F. LOVE, Judge. | tMURRAY, J.,

text:
    Carla B. DUCOMBS and Timothy J. Beckel v. NOBEL INSURANCE COMPANY, Crystal L. Turner and Atlanta Specialty Insurance Company.
    No. 2003-CA-1704.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 2004.
    Opinion Granting Rehearing Oct. 29, 2004.

      A. Scott Tillery, Tillery & Tillery, Chal-mette, LA, for Plaintiff/Appellee.
    Robert L. Walsh, Conrad Meyer V.-, Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   LTERRI F. LOVE, Judge.

This personal injury suit arises out of a motor vehicle accident involving Ms. Crystal Turner and Mrs. Carla Ducombs resulting in injury to Mrs. Ducombs. After a bench trial on the merits, the trial court found Mrs. Ducombs 45% at fault and Ms. Turner 55% at fault. Subsequently, Ms. Turner lodged this appeal. The appellant, Ms. Turner, assails the trial court erroneously apportioned fault, Mrs. Ducombs failed to prove injuries, and the amended judgment was substantive, thus improper.

FACTS AND PROCEDURAL HISTORY

On April 10, 2000, the appellant, Crystal Turner, was operating a Toyota Camry eastbound on La Hwy. 46 in the inside left-hand lane. La. Hwy. 46 is a divided four-lane highway separated by a flat, grassy median. The appellee, Mrs. Carla Du-combs was stationary in a Ford Bronco at the intersection of Guillot Street and La. Hwy. 46 with her son, Timothy Becknel. The remaining facts are in dispute.

li>Mrs. Ducombs testified she looked left, saw no oncoming ears and proceeded to turn right onto the inside left-hand lane of La. Hwy. 46. She did note the existence of a curve and the fire chiefs truck, but nothing blocked her view. Mrs. Ducombs further testified she had completed the turn, traveled a short distance at 45 miles per hour when Ms. Turner crashed into the passenger side corner of the rear bumper. The force of the collision caused Mrs. Ducombs’ car to flip multiple times.

Mrs. Dueomb’s son, Mr. Becknel, corroborated her testimony testifying they were traveling at 35 miles per hour and they had traveled 100 feet or more prior to impact. Mr. Becknel further testified that Ms. Turner veered off the side of the road, returned to the asphalt and collided with Mrs. Ducombs. After they came to rest, Ms. Turner struck Mrs. Ducombs a second time.

Ms. Turner testified she noticed the fire chiefs truck as she traversed La. Hwy. 46 at the posted speed limit of 55 miles per hour. She was attentive and alert when she observed Mrs. Ducombs enter the highway one or two car lengths before her. Ms. Turner assumed Mrs. Ducombs would travel in the right-hand lane, but Mrs. Ducombs continued into the left lane. Ms. Turner immediately applied her brakes and attempted to change into the right hand lane to avoid a collision. Ms. Turner immediately lost control of her vehicle and rear-ended Mrs. Ducombs.

In addition to liability being an issue, Mrs. Ducombs’ injuries are in dispute. Previous to the aforementioned accident, Mrs. Ducombs testified that she had injured her back and knee. She has also noted numerous incidents of her legs Isgiving out. On the day of the accident, the paramedic noted a bleeding gash on her left knee. Subsequently, Mrs. Du-combs presented to her orthopedist, Dr. Diaz, that she injured her shoulder, back, knee, and jaw. Mrs. Ducombs testified that a jabbing pain persists in her left knee and she continuously experiences back pain. There is no testimony of shoulder or jaw pain after her initial consultation.

Dr. Diaz, Mrs. Ducombs’ orthopedist, testified she presented after the accident complaining of lower back pain, right calf pain, left knee pain, and jaw pain. He opined the accident aggravated her back injury causing Mrs. Ducombs to experience recurring back pain. Dr. Diaz testified the trauma to her left knee aggravated a form of arthritis treated with a series of injections. He further testified Mrs. Ducombs will require knee surgery in the future. Dr. Diaz offered no testimony regarding her shoulder or jaw injury.

After a bench trial on the merits, the trial court found Ms. Turner was 55% at fault and Mrs. Ducombs was 45% at fault issuing a judgment in favor of Mrs. Du-combs, awarding general damages in the amount of $19,000.00, special damages in the amount of $9,000.00, and a credit for payment by Nobel Insurance for settlement with Mrs. Ducombs in the amount of $10,000.00. The plaintiff filed a Motion for New Trial and/or For Amendment/Clarification of the Judgment because the original judgment did not specify an amount of judgment rendered against Atlanta Specialty Insurance Company. After a contradictory hearing, the trial court issued an amended judgment increasing Mrs. Du-combs general damages to $27,200.00. The defendant subsequently lodged this appeal.

LAW AND DISCUSSION

Ms. Turner asserts three assignments of error. First, Ms. Turner argues the trial court erred in finding her liable in light of the overwhelming evidence showing she is free from fault. Second, Ms. Turner contends the trial court erred in awarding damages to Mrs. Ducombs for injuries allegedly caused by the accident. And. finally, the appellant asserts the trial court erred by amending its original judgment.

FIRST ASSIGNMENT OF ERROR

The defendant, Ms. Turner, argues the trial court erred in finding she was 55% at fault for colliding with Mrs. Du-combs because Mrs. Ducombs failed to look for oncoming traffic and failed to yield. The defendant contends Mrs. Du-combs is presumed to be at fault citing La. R.S. 32:124 because she entered the highway from a private drive. The defendant asserts Mrs. Ducombs did not provide the trial court with any evidence that Ms. Turner was speeding and the plaintiff created an emergency situation by failing to look and yield to oncoming traffic.

Apportionment of fault is a question of fact, subject to the manifest error/clearly wrong standard of review. Sims v. State Farm Auto Ins. Co., 98-1613, p. 2 (La.3/2/99), 731 So.2d 197, 199. In reviewing allocation of fault, the Louisiana Supreme Court in Clement v. Frey, 95-1119, p. 7 (La.1/16/96), 666 So.2d 607, 610-611, explained, “there is an analogy between excessive or inadequate quantum determinations and excessive or inadequate fault percentage | ¡^determinations. In both, the trier of fact, unlike the appellate court has had the benefit of witnessing the entire trial and of reviewing first hand all the evidence.” Id. To reverse a factfinder’s factual determinations, the court of appeal must find (1) that a reasonable factual basis does not exist on the record; and (2) that the record establishes that the finding is manifestly erroneous' or clearly wrong. Cormier v. Comeaux, 98-2378, p. 5 (La.7/7/99), 748 So.2d 1123, 1127. Thus, we must determine whether the trial court in the present case was clearly wrong or manifestly erroneous in the allocation of fault between the parties.

Ms. Turner proposes three arguments to support the contention that she was without fault. First, Mrs. Ducombs is presumed to be at fault because she violated La. R.S. 32:124 which states in pertinent part, “The driver of a vehicle about to enter or cross a highway from a private road, ... shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard.” In support of this argument the defendant cites Daniels v. Burridge, 2000-1089 (La.App. 4 Cir. 3/21/01), 785 So.2d 906. La. R.S. 32:124 and Daniels address drivers who exit a private road, driveway, alley, or building. In the case at bar, the defendant was exiting from a public street, therefore the statute does not apply.

Second, Ms. Turner also contends Mrs. Ducombs did not provide any evidence that she was speeding. The posted speed limit was 55 miles per hour. 1 ¿There is conflicting testimony as to whether Ms. Turner was traveling at an excessive speed. Mrs. Ducombs and Mr. Becknel both stated Ms. Turner was traveling GO-65 miles per hour. Ms. Turner testified she never drives over the speed limit, therefore she was traveling 55 miles per hour. Ms. Turner was unable to control her vehicle as she attempted to change lanes. The trial judge had the benefit of witnessing the entire trial and of reviewing first hand all of the evidence. It is reasonable for him to conclude Ms. Turner was speeding from the evidence presented.

Finally, Ms. Turner claims Mrs. Ducombs created an emergency situation when she failed to yield to oncoming traffic, thereby absolving Ms. Turner from liability. The sudden emergency doctrine states,

One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. Hickman v. Southern Pacific Transport Co., 262 so.2d[So.2d] 385, 388 (La.1972)[.]

We have refused to apply the sudden emergency doctrine where the party asserting the doctrine was also negligent. Clement v. Griffin, 91-1664 (La.App. 4 Cir. 3/3/94), 634 So.2d 412, 439. We reasoned the asserter would still be responsible for its negligence; therefore we failed to extend the sudden emergency doctrine to him. See, Wiley v. Safeway Insurance Co., 99-161 (La.App. 3 Cir. 7/14/99), 745 So.2d 636. (The Third Circuit reasoned to apply this doctrine the defendant must prove the emergency was not caused by his own negligence). In |7the facts before us, Ms. Turner has not proven the emergency was not caused by her speeding or failure to yield. We cannot extend the sudden emergency doctrine to Ms. Turner.

We have reviewed the record and find no manifest error by the judge in determining that Ms. Turner was 55% at fault and Ms. Ducombs was 45% at fault. Conflicting testimony exists as to whether Ms. Turner was speeding. Ms. Turner lost control of her vehicle after Mrs. Ducombs completed her turn into the left lane of traffic. Both parties testified they were unable to see the other until after the turn' was completed. It is reasonable the trial court concluded both parties were at fault and apportioned accordingly.

SECOND ASSIGNMENT OF ERROR

The defendant argues the trial court erred in awarding damages to Mrs. Ducombs for injuries allegedly caused by the accident. Specifically, the plaintiff did not prove the severity, duration, or extent of alleged injuries to her back, shoulder, teeth, or knee. The plaintiff, Mrs. Du-combs, contends she proved by a preponderance of the evidence that she suffered multiple injuries in the accident by the introduction of medical records and oral testimony of herself, her husband, and Dr. Diaz.

The Louisiana Supreme Court in Maranto v. Goodyear Tire & Rubber Co., 94-2603, p. 3 (La.2/20/95), 650 So.2d 757, 759 set out the burden of proving causation in personal injury cases. The Maran-to court stated, “In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury.” Causation must be proven by |8a preponderance of the evidence through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.

In plaintiffs case in chief, Ms. Ducombs testified she injured her left knee, shoulder, back, and jaw in the accident in question. Mrs. Ducombs supplied witnesses and admitted medical records to support her injuries. Mrs. Ducombs testified she aggravated the injury to her back and injured her left knee. She did not testify regarding any injury to her shoulder. When questioned regarding her jaw, she was unsure of whether the accident caused the pain and removal of her wisdom teeth. Mr. Ducombs testified to his wife’s pain and suffering, specifically to her aggravated back injury and her knee injury.

Dr. Diaz was offered as an expert in orthopedics and has treated Mrs. Ducombs for past back injuries. Dr. Diaz testified the aforementioned car accident aggravated Mrs. Ducombs’ previous back injuries. She received a gash on her left knee during the car accident noted in the paramedic’s report. A year after the accident, Mrs. Ducombs complained again she had left knee pain and occasional swelling to Dr. Diaz. He opined the symptoms listed were consistent with the left knee striking the dashboard. Ultimately, Dr. Diaz diagnosed Mrs. Ducombs with a degenerative joint disease that was aggravated or made symptomatic by a direct blow to her left knee striking the dashboard in the car accident. She was treated by injections and finally had an MRI confirming Dr. Diaz suspicions; Mrs. Ducombs had a degenerative joint disease that would require surgery in the future. To accompany surgery, he testified her regimen- will include medication and physical, therapy. Ms. Turner provided no evidence to refute Dr. Diaz.

We find Mrs. Ducombs did establish a causal connection between the motor vehicle accident and injuries to her back and left knee through testimony and 19medical record. The award for damages was reasonable and consistent with her injuries.

THIRD ASSIGNMENT OF ERROR

Ms. Turner argues the trial court erred by amending its original judgment of February 25, 2003 in violation of La. C.C.P. art. 1951. It prohibits a trial judge’s alteration of the substance of a final judgment. Mrs. Dueombs contends the trial court can change its judgment substantively by a timely motion for new trial under La. C.C.P. arts. 1971 and 1951.

A trial judge lacks the authority to make substantive amendments to judgments. Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761 (La.App. 4th Cir.1992). The proper vehicle for a substantive change in a judgment is the timely motion for new trial, timely appeal or petition or action for nullity. Id. This court upheld an amended judgment changing a damages award in Saacks v. Mohawk Carpet Corp., 2003-0386, p. 24 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 375. We held because the plaintiff filed a motion for new trial, a contradictory hearing was held, and the trial court granted the new trial, as well as the motion to amend the judgment; the trial court did not err in amending the calculation of the wages owed to the plaintiff even if the amendment was considered to be a substantive change. Id. See also, Francis v. Lafon Nursing Home of the Holy Family, 2002-1863 (La.App. 4 Cir. 3/19/03), 840 So.2d 1281.

In the case sub judice, the trial court issued a judgment on February 25, 2003. Mrs. Dueombs filed a timely Motion for New Trial and/or Amendment of | inJudgment. Briefs were filed in support and opposition to the Motion for New Trial and/or Amendment of Judgment and a contradictory hearing held. The trial court issued an amended judgment on March 28, 2003. There is no indication in the amended judgment that the court granted a new trial, therefore the trial court erred by failing to grant the motion for new trial.

We held in Webster, where the trial court does not follow one of the three prescribed methods for making a substantive amendment to a judgment, the amendment judgment is an absolute nullity. Francis v. Lafon Nursing Home of the Holy Family, 2002-1863 (La.App. 4 Cir. 3/19/03), 840 So.2d 1281. When this Court notices such an absolute nullity, we must vacate it on our own motion. Accordingly, we must vacate the amended judgment of March 28, 2003, and reinstate the judgment rendered on February 25, 2003.

Under La. C.C.P. art. 2164, the appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The record reflects the trial court was manifestly erroneous in evaluating the quantum for aggravated back and knee pain. The evidence reveals the lowest award which was reasonably within the trial courts discretion was $27,200. See, Gremillion v. Derks, 96-04.12 (La.App. 4 Cir. 11/18/96), 684 So.2d 492. (The Fourth Circuit awarded $10,000 for aggravated back pain), Pilet v. Schwegmann Giant Supermarkets, 559 So.2d 894 (La.App. 4th Cir.1990). (The Fourth Circuit awarded 17,000 for aggravated knee pain with subsequent surgery). Accordingly, we shall increase the general damage award to $27,200.00.

^CONCLUSION

For the foregoing mentioned reasons, the trial court is affirmed in part, reversed in part, amended in part and rendered.

AFFIRMED IN PART, VACATED IN PART, AMENDED IN PART, AND RENDERED.

MURRAY, J., CONCURS AND ASSIGNS REASONS.

| tMURRAY, J.,

concurs and assigns reasons.

The plaintiff, Mrs. Dueombs, filed a “Motion for New Trial and/or Amendment of Judgment.” Without expressly ruling on the motion for new trial, the trial court made a substantive amendment to the judgment in violation of La. C.C.P. arts, 1951 and 1971. I agree with the majority’s conclusion that the amended judgment is an absolute nullity.

Although the evidence in the record supports the substantive change made by the trial court, that court committed legal error by so amending the judgmént without having granted the motion for new trial. Í believe this court should correct that legal error by granting the motion for new trial and, upon review, rendering the same judgment that the trial court would have rendered. Accordingly, I respectfully,concur in the result reached by the majority.

hPER CURIAM.

We grant defendant’s application for rehearing. Atlanta Specialty Insurance Company has filed an application for rehearing asserting six assignments of error committed by this Court. We find five assignments of error asserted by the defendant to be without merit. We address defendant, Atlanta Specialty Insurance Company’s assertion that this Court misapplied La.R.S. 32:124, for clarification.

In interpreting La.R.S. 32:124, the black letter of the law refers specifically to vehicles entering or crossing a highway from a private road. La.R.S. 32:124. La.R.S. 32:124 provides:

“The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidéwalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute immediate hazard.”

The record establishes that Ducombs stopped her vehicle immediately prior to turning onto the highway, although there was no stop sign at the time of the incident. The record also' establishes that Ducombs yielded the right of way to all approaching vehicles so close as to constitute an immediate hazard. Ducombs testi-that while at a complete stop she looked to see “if anything was coming Uand nothing was blocking” her view. In Schexnayder v. Guillory, et al., 280 So.2d 239, 242 (La.App.4th Cir.1973), this Court held that after the unfavored driver has completed his turn (right .or left) there comes a point (e.g., certainly, a mile down the road) at which the turn is causally unrelated to a rear-ending. In the present case .the trial court ruled that defendant, Turner, was negligent in causing the accident,, that plaintiff, Ducombs had comparative fault in the amount of 45%, and awarded damages.

We have reviewed the record and find no manifest error by the trial court in determining that Turner was 55% at fault and Ducombs was 45% at fault. The record establishes that both parties were unable to see the other until after the turn by Ducombs was completed. Irrespective of the misstatement that La.R.S. 32:124 was not applicable because the plaintiff Du-combs was exiting from a public street, our finding that it was reasonable, for the trial court to conclude that both parties were at fault and apportioned accordingly is unaffected.

Defendant asserts in its sixth assignment of error that this court erred in modifying the general damage award rendered by the trial court on February 25, 2003. The Court of Appeal will review only issues which are submitted to the trial court and which are contained in specifications or assignments of error, unless the interest of justice clearly requires otherwise. Uniform Rules of Louisiana court of Appeal, Rule 1-3. Based on our finding that the trial court erred by substantively amending the February 25, 2003 judgment without granting the motion for new trial, the March 28, 2003 amended judgment of $27,200 is an absolute nullity. Francis v. Lafon Nursing Home of Holy Family, 2002-1863 (La.App.4 Cir. 3/9/03), 840 So.2d 1281. Therefore, this Court vacated the trial court’s March 28, 2003 amended judgment and reinstated the February 25, 2003 judgment rendered by the trial court.

[ ¡¡Pursuant to La.C.C.P. art. 2164, which provides that the appellate court shall render any judgment which is just, legal and proper upon the record on appeal, we found that the trial court was manifestly erroneous in evaluating the quantum for plaintiffs general damages in the amount of $19,000, reflected in the February 25, 2003 reinstated judgment. Although the record establishes that the trial court attempted to correct this error by rendering an amended judgment in the amount of $27,200, the trial court’s failure to grant the motion for new trial resulted in this Court vacating the March 28, 2003 amended judgment and reinstating the original judgment rendered February 25, 2003.

In the interest of justice and judicial economy, this Court assessed whether the trial court abused its discretion in the re-instated February judgment, awarding general damages to Ducombs in the amount of $19,000. With regard to the award of damages, there must be a showing that the trier of fact abused the great discretion accorded in awarding damages. Napolitano, et al. v. F.S.P., Inc., et al, 2000-1602, p. 4 (La.App. 4 Cir. 9/05/01), 797 So.2d 111, 114. This Court held that the trial court was manifestly erroneous in rendering such an award for general damages based on the record before us; in light of pre-existing case law, and the facts of the case at bar. Therefore, the quantum was adjusted to reflect what was just.

Furthermore, defendant’s assertion that this Court acted inconsistently by characterizing the quantum award as reasonable and simultaneously amending the award as unjust is mistaken. This Court’s reference to the trial court’s award for damages as “reasonable and consistent with the injuries” Ducombs suffered, was in relation to the March 28, 2003 amended judgment rendered by the trial court, which this Court was required to vacate as an absolute nullity, not to the February 5, 2003 judgment, which this Court amended.

|4We acknowledge that Louisiana Code of Civil Procedure does not give the appellate court the express authority to grant or deny motions for new trial, absent such a motion being joined, or alternatively prayed for, with a motion for a Judgment Notwithstanding the Verdict.

La.C.C.P. art. 2087 provides:

An order of appeal is premature if granted before the court disposes of all timely filed motions for new trial.... The order becomes effective upon the denial of such motions.

Therefore, we vacate our amended judgment in the amount of $27,200, reinstate the trial court’s February 25, 2003 judgment in the amount of $19,000, and remand the case back to the trial court to dispose of the motion for new trial.

CONCLUSION

For the foregoing reasons, the majority opinion in Ducombs v. Turner et al., affirm in part, vacate in part, and remand this matter to the trial court to resolve the outstanding motion for new trial.

      . Vehicle entering highway from private road, driveway, alley or building
      The driver of a vehicle about to enter or cross a highway from a private road, driveway, alley or building, shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across any alleyway or driveway, and shall yield the right of way to any pedestrian as may be necessary to avoid collision, and shall yield the right of way to all approaching vehicles so close as to constitute an immediate hazard. LSA-R.S. 32:124.


author: J^MCCLENDON, J. | ^OWNING, J.,

text:
    OUR LADY OF THE LAKE HOSPITAL, INC. v. TRANSCEND SERVICES, INC.
    No. 2003 CA 1373.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 25, 2004.
    Rehearing Denied Nov. 9, 2004.
    Claude F. Reynaud, Jr., Scott N. Hens-gens, Baton Rouge, Counsel for Plaintiff/Appellant Our Lady of the Lake Hospital, Inc.
    F. Scott Kaiser, Rebecca B. Crawford, Baton Rouge, Counsel for Defendant/Ap-pellee Transcend Services, Inc.

      Thomas J. Eppling, Lance E. Harwell, Metairie, Counsel for Defendant/Appellee Travelers Insurance Company.
    John J. Erny, III, Metairie, Counsel for Defendant/Appellee Hartford Insurance Company.
    Before: PETTIGREW, DOWNING, and McClendon, jj.
   J^MCCLENDON, J.

By this appeal, plaintiff contests a summary judgment granted in favor two insurers, dismissing plaintiffs claims against them upon a finding of no coverage under the insurers’ commercial general liability policies for the claims made against their insured. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Our Lady of the Lake Hospital, Inc. (OLOL) operates a full service acute care hospital facility and provides related healthcare services in East Baton Rouge Parish, Louisiana, under the name of Our Lady of the Lake Regional Medical Center. Transcend Services, Inc. is a medical record management business that specializes in transforming hospital paper record systems into electronic medical record systems. This suit arises out of three contracts entered into between OLOL and Transcend. On April 11, 1997, OLOL and Transcend entered into a contract for Health Information Management Staffing and Management Services (the “HIM” contract), under which Transcend agreed to operate OLOL’s Medical Records Department and perform various tasks related to the organization, management, transcription, and maintenance of OLOL’s medical records. The second contract, entered into on September 30, 1998, was a Transcription Platform Agreement under which Transcend agreed to acquire and install certain transcription and dictation equipment that would allow OLOL to connect to Transcend’s transcription platform and access Transcend’s transcription services. The third contract, also entered into on September 30, 1998, was a marketing agreement whereby OLOL and Transcend agreed to promote utilization of Transcend’s transcription platform by other healthcare providers.

On April 5, 2001, OLOL filed suit against Transcend, alleging breach of the HIM contract and resulting damages. OLOL further alleged that, due to breach of the HIM contract, performance under the Transcription Platform Agreement and the marketing agreement was impossible. In an amended petition, OLOL named Hartford Insurance Company and Travelers Insurance Company, both of j3which issued commercial general liability insurance policies for the years 1996 through 2001 to Transcend, as additional defendants.

Hartford and Travelers filed motions for summary judgment, seeking dismissal from that lawsuit on the basis that they provided no coverage for the facts of this suit as pled by plaintiff. After hearing the matter, the trial court rendered summary judgment in favor of Hartford and Travelers, dismissing OLOL’s action against these defendants. OLOL appeals.

LAW

Summary judgment shall be rendered if there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment. Alford v. Kaiser, 589 So.2d 546, 548 (La.App. 1 Cir. 1991), writ denied, 594 So.2d 893 (La. 1992). A summary judgment may be rendered on the issue of insurance coverage alone, although there remains a genuine issue of material fact as to liability or the amount of damages. See LSA-C.C.P. art. 966(E); Bilbo for Basnaw v. Shelter Ins. Co., 96-1476, p. 5 (La.App. 1 Cir. 7/30/97), 698 So.2d 691, 694, writ denied, 97-2198 (La.11/21/97), 703 So.2d 1312. 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. Westerfield v. LaFleur, 493 So.2d 600, 605 (La.1986). The burden of proof on a motion for summary judgment is on the mov-ant. LSA-C.C.P. art. 966(C)(2).

DISCUSSION

An exclusion concerning the insured’s failure to perform is contained in each insurer’s policy, and the provisions are identical. Each policy provides as follows:

42. Exclusions.
This insurance does not apply to:
m. Damage to Impaired Property or Property not Physically Injured
“Property damage” to “impaired property” or property that has not been physically injured, arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work”; or
(2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use.

The term “property damage” is defined in the policies to include “[l]oss of use of tangible property that is not physically injured.” The definitions sections of the policies further provide that:

“Impaired property” means tangible property, other than “your product” or “your work”, that cannot be used or is less useful because:
a. It incorporates “your product” or “your work” that is known or thought to be defective, deficient, inadequate or dangerous;, or
b. You have failed to fulfill the terms of a contract or agreement
if such property can be restored to use by:
a. The repair, replacement, adjustment or removal of “your product” or “your work”; or
b. Your fulfilling the terms of the contract or agreement.

The policies define the term “your work” to include “[w]ork or operations performed by [Transcend] or on [Transcend’s] behalf’ and materials, parts, or equipment furnished in connection with Transcend’s work or operations.

Therefore, exclusion m, section 2 unambiguously excludes coverage for “property damage” to “impaired property” or property that has not been | ¿physically injured, that arises from the insured’s failure to perform a contract. Additionally, the exclusion applies where the property damage arises from “a delay or failure by [Transcend] or anyone acting on [Transcend’s] behalf to perform a contract or agreement in accordance with its terms.”

The only facts concerning the condition of the medical records department that were before the trial court on the motions for summary judgment are contained in OLOL’s petition. Therein, OLOL asserts simply that the “medical records department ... was disorganized to the point of being chaotic” and “was in poor working order.” OLOL seeks to recover the expenses it incurred in restoring the function of that department. These are clearly allegations that OLOL sustained damages due to a loss of use of its medical records department. The disorganized medical records fall clearly within the definition of “impaired property” contained in the policies as they are less useful as a result of Transcend’s failure to fulfill the terms of its contract with OLOL and they can be restored by Transcend fulfilling the terms of the contract. Furthermore, there is no allegation in the pleadings filed by OLOL that the medical records have been physically damaged. Rather, OLOL simply asserts that the records are disorganized. Therefore, the medical records clearly fall within the category of “property that has not been physically injured.” The property damage incurred arose from work performed by Transcend. Thus, this damage is excluded from coverage.

Furthermore, the exclusion applies where the “property damage” results from a delay or failure by Transcend or anyone acting on behalf of Transcend to perform the terms of the contract. In its petition, OLOL states that all damages it seeks are the result of Transcend’s breach of the three contracts entered into by the parties. Therefore, plaintiffs claims are also excluded from coverage by this part of exclusion m, found in section 2.

| ¡^Finally, prior jurisprudence of this circuit dictates the result reached above. In PCS Nitrogen Fertilizer, LP v. U.S. Filter/Arrowhead, Inc., 01-2577 (La.App. 1 Cir. 11/8/02), 834 So.2d 456, this court applied an exclusion with terms essentially the same as those in the instant case, and held that, when a plaintiff has alleged only damages related to loss of use that occurred as a result of the insured’s breach of contract, coverage was excluded. In that case, PCS alleged that Arrowhead had breached a contract that required it to design, install and service a water purification system for PCS. PCS alleged that this breach caused PCS to shut down its operations. Upon learning of the shutdown, Arrowhead corrected the problem. PCS sought to recover damages for the maintenance and startup costs associated with the shut down and its loss of production. Applying a policy exclusion that is substantially similar to the one contained in the policies herein, this circuit held that coverage for damages claimed by PCS were excluded. Specifically, we stated:

[T]he undisputed facts show that only damages associated with PCS’s loss of use are claimed. And, importantly, PCS’s Petition urges only that Arrowhead failed to fulfill its contractual obligation to furnish a water supply in conformity with the contractual specifications set forth in the Water Services Agreement, specifically averring that it is the breach of contract by Arrowhead that gives rise to the claim for damages. Thus, assuming as true the allegations of its petition, the undisputed facts show that PCS suffered damages for loss of use because the water purification system failed to operate in accordance with the specifications set forth in the Water Services Agreement. With introduction of the insurance policy and the Water Services Agreement, [the commercial general liability carrier] has sustained its burden of showing no genuine issue of material fact and, therefore, its entitlement to summary judgment.

PCS Nitrogen Fertilizer, LP, 01-2577 at pp. 5-6, 834 So.2d at 459.

OLOL raises numerous additional arguments in seeking reversal of the trial court’s judgment on appeal. However, considering the foregoing, we decline to discuss the additional issues raised on appeal as the exclusion m referenced herein, which is contained in each policy, unambiguously excludes OLOL’s claims for coverage. That holding is dispositive of the entire case.

|7For the foregoing reasons, the judgment of the trial court is affirmed. Costs are assessed against Our Lady of the Lake Hospital, Inc.

AFFIRMED.

DOWNING, J., concurs and assigns reasons.

| ^OWNING, J.,

concurring.

I concur only to compliment the trial judge on his clear and logically written reasons.

      . In determining whether summary judgment is proper, courts consider the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file. See LSA-C.C.P. art. 966(B).


author: hDAVID S. GORBATY, Judge.

text:
    Aaron R. SPELLS v. EXTREME NISSAN.
    No. 2003-CA-2179.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 1, 2004.
    Rehearing Denied Sept. 30, 2004.

      Milton Osborne, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Kevin A. Marks, Kimberly M.A. Nieting, Natasha Z. Wilson, Galloway, Johnson, Tompkins, Burr & Smith, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).
   hDAVID S. GORBATY, Judge.

In this appeal, plaintiffs contend that the workers’ compensation court erred in rejecting their claims. For the reasons set forth below, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On December 5, 2002, alleged employer Smith-Carlton, LLC, IV, d/b/a Extreme Nissan (“Extreme Nissan”), its insurance carrier, CNA Insurance Companies, and claimants, Andrea Spells and her minor children (“Appellants”), proceeded to trial on Appellants’ Disputed Claim for Compensation. Appellants sought workers’ compensation death and burial benefits from Extreme Nissan and CNA for the death of Aaron Spells, husband of Andrea Spells and father of the appellant minor children.

Andrea Spells testified at trial that Aaron Spells was self-employed prior to his death. He was essentially a “jack of all trades” who owned a landscaping business and performed other work as well. Sometime shortly prior to August 7, 2001, Aaron Spells, who performed landscaping work for Extreme Nissan, overheard a telephone conversation of Jack Baham, who was at the time the sales manager of Extreme Nissan. Baham was discussing the need and cost to pick up a |?Jeep that a representative of Extreme Nissan had purchased at auction in Atlanta, Georgia. Once Mr. Baham completed the telephone call, Aaron offered to retrieve the vehicle for Extreme Nissan for a lesser amount. Extreme Nissan accepted, and provided Aaron with a vehicle to drive to Atlanta. While en route to Atlanta, on August 7, 2001, Mr. Spells lost control of the vehicle he was driving, left the roadway, and struck a tree. He was pronounced dead on the scene.

Camille Smith, comptroller for Extreme Nissan, testified that Aaron Spells was not on Extreme Nissan’s payroll; Extreme Nissan did not withhold income taxes from Aaron’s pay; and did not issue Aaron a W-2 form. Furthermore, Ms. Smith testified that Extreme Nissan did not maintain a personnel file on Aaron, nor was there any application on file for him. In addition, Aaron did not report to any supervisor at Extreme Nissan, nor was he issued an employee uniform.

On June 16, 2003, the workers’ compensation judge rendered judgment finding that Aaron Spells was not an employee of Extreme Nissan, but rather was an independent contractor not engaged in manual labor at the time of his death. The court stated, “Claimant held himself out as an independent contractor and acted as such during the trip that resulted in the fatal crash.” Appellants subsequently filed this appeal.

DISCUSSION

In their fifth assignment of error, Appellants aver that the workers’ compensation judge erred in finding that Aaron Spells was not entitled to benefits pursuant to the manual labor exception to the independent contractor rule contained in La. R.S. 23:1021(6).

Timberlake v. Avis Rent A Car System, 361 So.2d 934, La.App. 4 Cir.1978, involved a factual scenario similar to the one at hand. In that .case, Linda Timberlake agreed to drive one of Avis’ rental automobiles from Baton Rouge to New Orleans for a set price. The contract contained this language:

“It is agreed that this contract in no way constitutes Contractor as an agent, servant or employee of the Owner of said vehicle or of Avis Rent A Car System, Inc., any of its affiliates, agencies or Licensees.”

The trial judge found that there was an actual contract for a specific undertaking at a stated price and that defendant had no control over the plaintiff except as a result of the work, and concluded that plaintiff was an independent contractor. This court agreed with the factual findings, but disagreed with the conclusion, “believing the issue is controlled by the type of work done, that is, manual labor.” Id. at 934.

The Louisiana Workman’s Compensation Law defines “Independent Contractor” at La. R.S. 23:1021(6) as follows:

“Independent Contractor” means, any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.”
In Timberlake, this court reasoned:
The pertinent issue here is whether Timberlake was engaged in manual labor in carrying out the terms of the contract: driving an automobile from Baton Rouge to New Orleans. Our Louisiana statute has been cited by Larson’s Workmen’s Compensation Law, § 49.21 page 9-33, as an example of the type of statutory law which declares that an independent contractor doing manual work is an employee for compensation purposes, citing Blade v. Mervis, 226 So.2d 552 (La.App.1969) and Guidry v. DeFelice Marine Contractors, Inc., 200 So.2d 329 (La.App.1967). Unfortunately the statute does not contain a definition of manual labor and the stipulation of fact does not go into plaintiffs obligations under the contract except that she was to drive an automobile from Baton Rouge to New Orleans. LRS 1:3 requires |4that words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Without citing dictionary authorities, we believe it sound to say that the common usage of “manual labor” would encompass the driving of an automobile, wherein a person is physically required to regulate the direction, speed and control of the car by physical means. We refer to the case of Welch v. Newport Industries, Inc., 86 So.2d 704 (La.App.1956), wherein the court, in applying the term “manual labor” to the Workmen’s Compensation Law stated at page 707: “ * * * but the true legal meaning of the term “manual labor” is to denote work in which the physical element predominates over the mental, see 26 Words and Phrases, Verbo Manual Labor, p. 603. For purposes of determining compensation coverage, the distinguishing feature is whether the workingman participates physically himself, rather than so to speak aloofly directs in clean Sunday clothes.”
In summary, we conclude that driving an automobile is manual labor within the definition of LRS 23:1021(6), and the plaintiff is a statutorily defined employee engaged in manual labor and covered by the provisions of the Workmen’s Compensation Law.

Id. at 935-6.

Aaron Spells was hired to go to Atlanta and transport a car from Atlanta to New Orleans. Although the evidence supports the trial judge’s conclusion that Aaron was an independent contractor, Timberlake necessitates our finding that he was engaged in manual labor. As a result, appellants are entitled to workers’ compensation benefits pursuant to the manual labor exception contained in La. R.S. 23:1021(6). Therefore, pursuant to this court’s holding in Timberlake, we must reverse the finding of the workers’ compensation judge. We pretermit discussion of appellants’ first four assignments of error, as they are mooted by this ruling.

Appellants next argue that the workers’ compensation judge erred in failing to award them maximum death benefits and funeral expenses.

In At trial, Andrea Spells testified that she received a $200.00 check from Extreme Nissan after Aaron’s death. She stated that Jack Baham informed her that the check was payment for retrieving the vehicle from Atlanta. Jack Baham testified the auction wanted $450.00 to $600.00 to transport the vehicle to New Orleans from Atlanta. After overhearing the conversation Mr. Baham had with auction representatives, Aaron Spells offered to transport the vehicle for “about half of that.”

Appellant Aaron Spells, Jr., the minor son of Aaron Spells, testified he overheard Mr. Baham offer his father $200.00 to retrieve the vehicle if he flew to Atlanta, and $2,000.00 if he drove. However, on cross-examination, he did not know the difference between $200.00 and $2,000.00. It should be noted that Aaron Spells, Jr. was only eight years old when he heard his father and Mr. Baham discuss retrieving the vehicle from Atlanta.

We find that the workers’ compensation benefits should be based upon payment of $200.00 to pick up and return a vehicle from Atlanta. Given the distance to be traveled, such work would have been accomplished in approximately two days. Assuming Aaron Spells would have worked two days for Extreme Nissan, with payment of $200.00, his average weekly wage would be at most $100.00. As sixty-five percent of $100.00 is less than the statutory minimum compensation rate in effect at the time, the corresponding weekly death benefit would be $104.00, the statutory minimum.

The parties stipulated that Aaron Spells’s funeral bill exceeded the $5,000.00 maximum allowed by La. R.S. 23.T210. Thus, the maximum allowable amount should be awarded, $5,000.00.

| (¡Finally, appellants contend that the workers’ compensation judge erred in failing to award them multiple penalties and attorneys’ fees under La. R.S. 23:1201. Penalties and attorneys’ fees are due for failure to timely pay a claim, unless the claim “is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.” La. R.S. 23:1201(F)(2). An employer is not subject to statutory penalties and attorneys’ fees if it had a “reasonable basis” to object to the payment of benefits. Angulo v. ATH Painters and Construction, Inc., 1998-2363, p. 4 (La.App. 4 Cir. 5/5/99), 733 So.2d 1222, 1227, citing Dean v. K-Mart Corp., 97-2850 (La.App. 4 Cir. 7/29/98), 720 So.2d 349. The fact that an employer refuses to pay workers’ compensation benefits when it denies liability does not warrant the imposition of penalties and attorneys’ fees, even if the facts adduced at trial show that the employer was liable. Id.

We believe reasonable cause existed for nonpayment. We note especially the fact that there was a serious dispute between the parties as to the application of the law regarding independent contractors. We further note that the trial judge denied appellants benefits and dismissed their suit on the basis that Aaron Spells was an independent contractor. Under these circumstances we cannot say that the failure to pay is “arbitrary, capricious, or without probable cause.” As such, we find that the trial judge did not err in refusing to award penalties and attorneys’ fees.

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the workers’ compensation court is affirmed in part, reversed in part, and rendered.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: I,MAX N. TOBIAS, JR., Judge. | tLOVE, J.

text:
    COLISEUM SQUARE ASSOCIATION, et al. v. The INDUSTRIAL DEVELOPMENT BOARD OF the CITY OF NEW ORLEANS, LOUISIANA, INC.
    No. 2004-C-1112.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 2004.
    Cameron C. Gamble, Cameron C. Gamble, A.P.L.C., and Camille Jones Strachan, and Michael A. Duplantier, New Orleans, LA, for Plaintiff-Respondents.
    Albert A. Thibodeaux, Evelyn F. Pugh, Chief Deputy City Attorneys, Sherry S. Landry, City Attorney, and Wayne J. Ne-veu, Harold B. Judell, Meredith L. Hat-horn, Foley & Judell, L.L.P., New Orleans, LA, and David E. Henderson, Foley & Judell, L.L.P., Baton Rouge, LA, for De-fendanNRelator.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   I,MAX N. TOBIAS, JR., Judge.

We grant the supervisory writ of the Industrial Development Board of the City of New Orleans, Louisiana, Inc., the relator, to consider whether the trial court erred when it failed grant the relator’s peremptory exceptions. The plaintiffs/respondents, Coliseum Square Association and Historic Magazine Row, filed a petition for nullity pursuant to La. C.C.P. arts. 2001, et seq., seeking to have declared null certain trial court judgments that validated certain bonds issued by the relator. The trial court had upheld the validity of the bonds and both this Court and the Louisiana Supreme Court upheld the trial court’s decision. See, Board of Directors, Industrial Development Board of New Orleans, Louisiana, Inc. v. All Taxpayers, 03-0826, 03-0827 (La.App. 4 Cir. 5/29/03), 848 So.2d 740 and 848 So .2d 733, writs denied, 03-1527, 03-1528, 03-1842, 03-1843 (La.10/1/03), 855 So.2d 287, 855 So.2d 288, and 855 So.2d 289.

La. R.S. 13:5129 states in pertinent part that if the decree validating the bonds is sustained on appeal, “such decree shall be forever binding and conclusive as the validity of the bonds, the validity of the tax, any lease or other means provided for the payment of such bonds and the validity of all pledges of revenues and of all covenants and provisions contained in the instrument or proceedings ^authorizing or providing for the issuance of such bonds, and as to all matters adjudicated and as to all objectives presented or which might have been presented in such proceedings, and shall constitute a permanent injunction against the institution by any person of any action or proceeding contesting the validity of the bonds or any other matter adjudicated or which might have been called in question in such proceedings.” The bonds in question have been previously sustained on appeal.

La. R.S. 13:5129 implements Article VI, Section 35 of the 1974 Louisiana Constitution. Article VI, Section 35, clearly states that a plaintiff states no cause of action to attack the bonds once approved by a final decision of the courts. Thus, La. R.S. 13:5129, being a special statute addressing the procedure for validating bonds, supersedes the general statute for nullifying judgments, La. C.C.P. arts.2001 et seq.

For the foregoing reasons, we reverse the judgment of the trial court and dismiss the plaintiffs/respondents’ suit with prejudice.

SUPERVISORY WRIT GRANTED; JUDGMENT REVERSED; RENDERED.

| tLOVE, J.

concurs.

I agree with the majority that the judgment of the trial court should be reversed and the plaintiffs’/respondents’ suit should be dismissed with prejudice. However, I disagree with the majority’s conclusion that La. R.S. 13:5129, being a special statute addressing the procedure for validating bonds, supersedes the general statute for nullifying judgments, La. C.C.P. arts. 2001 et seq. La. C.C.P. art.2004 provides that a final judgment obtained by fraud or ill practices may be annulled. Further, a judgment affirmed, reversed, amended, or otherwise rendered by an appellate court may be annulled only when the ground for nullity did not appear in the record of appeal or was not considered by the appellate court. However, in the case at bar, the plaintiffs petition fails to allege any ill practice, fraud, or other wrong doing in the procuring of the judgment. Therefore, although interpretation of La. R.S. 13:5129 does not extinguish the legal right to appear and assert all possible and available defenses, including an action for nullity, plaintiffs petition fails to state a cause of action in nullity pursuant to La. C.C.P. art 2004.