author: SUSAN M. CHEHARDY, Judge.

text:
    Demond LEE v. Brent D. DAVIS and State Farm Mutual Automobile Insurance Company.
    No. 03-CA-997.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Thomas E. Campbell, Jacqueline A. Campbell, Metairie, LA, for Plaintiff-Appellant, Demond Lee.
    C. Michael Parks, Frederick A. Miller & Associates, Metairie, LA, for Defendants-Appellees, Brent D. Davis and State Farm Mutual Automobile Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

The plaintiff appeals the dismissal of his suit on summary judgment. We affirm.

Demond Lee filed suit against Brent D. Davis and Davis’ insurer, State Farm Mutual Automobile Insurance Company, alleging that on or about June 25, 2000 he was a guest passenger in a vehicle owned and operated by Davis that was traveling on Ninth Street near East McAdoo Street in St. Charles Parish, when Davis lost control of the vehicle, which left the roadway and landed in a ditch. The plaintiff alleged he suffered “severe and traumatic injuries” as a result of Davis’ negligence.

After engaging in discovery, the defendants brought a motion for summary judgment, asserting there are no genuine issues of material fact and as a matter of law, there can be no finding of fault or negligence against the defendants upon which the plaintiff can recover damages. The defendants asserted the sudden emergency doctrine exculpates Davis from liability for possible negligence.

The motion was supported by the affidavit of defendant Davis and excerpts from the deposition of the plaintiff, which established that on the evening of June 24, 2000 Davis was driving his 1990 Honda Accord on Ninth Street in St. Charles Parish. Davis saw Demond Lee and Herman Ba-zile walking on the road and ^stopped to give them a ride. Lee sat in the front passenger seat; Bazile sat in the back seat. It was night and Davis was driving with both headlights on. His vehicle had no mechanical problems.

Ninth Street is a two-lane asphalt roadway with no dividing line.- The street lights along Ninth Street were not working and the street was dark. Davis was heading westbound in the right lane at approximately 25 miles per hour. Davis was looking straight ahead without distraction. Just after he crossed over a small bridge, in his headlights he suddenly saw in front of him a person on a bicycle heading directly toward him. The bicyclist had no headlight nor any reflectors on his bicycle. Davis believes the bicyclist was an 11- or 12-year-old boy, but he is uncertain.

When Davis first saw the bicycle, the boy immediately swerved to his right (Davis’ left), across the front of Davis’ vehicle. Davis took the only evasive action he could to miss-the bicyclist: he steered sharply to his right. By doing so he avoided hitting the bicyclist. He then tried to steer his car back to his left, but the car went into a ditch that runs alongside Ninth Street. Davis was unable to prevent his car from going into the ditch. After the accident, the bicyclist kept going and did not stop. The parties never discovered who he was.

In his discovery deposition, the plaintiff readily admitted that there was an unknown person riding a bicycle heading right toward them in their lane of travel. Plaintiff also could not remember seeing any light on the bicycle or any reflectors. Asked to estimate how far away the bicyclist was when he first saw him, the plaintiff testified, “I don’t remember a distance, but it was really didn’t see [sic] until you got right up on him, and Brent swerved off, and he lost control, and the back of the car slid like this here [indicating to the right].”

|4The plaintiff agreed that if Davis had just hit his brakes and had not swerved his vehicle to the right it would have struck the bicycle, stating, “I believe he could have hit him. It just happened so quick. He didn’t see until he was, boom, right there.”

Asked whether he had any criticism of what Davis did, the plaintiff said, “No, sir, because I could have done the same thing. I’d rather hit a ditch than hit a person and take a life. But he didn’t try to hit the ditch from my belief. He swerved, and he swerved back, and the back of the car did that and went into the road [later corrected by the plaintiff to “ditch”].”

However, the plaintiff described the road as “just a wide road,” but although there is no shoulder, “I can pull on the side, and two cars still can pass.” The plaintiff stated further, “It was real dark. You know, anywhere you go where they got a lot of trees in a wooded area, no light, it’s dark.”

In opposition to the motion for summary judgment the plaintiff filed his own affidavit, in which he stated that Ninth Street is a wide, two-lane road and is in a | swooded area with no street lighting; that there are no sidewalks along Ninth Street and there are drainage ditches running along both sides of the street; that Ninth Street is often traversed by pedestrians, children and bicyclists; that on the evening of the accident Davis did not have his high beams on; that there was room for Davis to move the car to the right and pass the cyclist without going into the ditch; that Davis steered very abruptly to the right and then turned back to the left very sharply, causing the car to go out of control. He concluded his affidavit by stating that if Davis had used his high beams he would have seen the cyclist in time to safely avoid a collision.

The plaintiff also filed an affidavit by Herman Bazile, the other passenger in Davis’ car. Bazile stated that Ninth Street is in a wooded area and has no lights; that there are several residential streets that intersect with and cross Ninth Street; there is a gym located at the end of Ninth Street; that Ninth Street is frequented by pedestrians, children, and bicyclists going to and from the various nearby residential neighborhoods and the recreational gym or gymnasium located at the end of Ninth Street.

In granting summary judgment, the trial court issued the following oral reasons for judgment:

Okay. The Court is struck by Mr. Park’s argument that there is really no actual negligence demonstrated by Mr. Davis here. It looks like he was doing everything he should have been doing under the circumstances. The old saying, “No good deed goes unpunished” might come into play here, in that, here he was giving two people a ride and something happened beyond his control and he gets sued. That is one of those unfortunate things in life, I guess. Based on . everything that’s been adduced in the record and based on the affidavits and the deposition testimony, the Court doesn’t find any actionable negligence on the part of Mr. Davis. The Court, therefore, finds there is no genuine issue of material fact and would therefore grant the summary judgment requested.

|fiOn appeal the plaintiff contends the trial court erred when it granted the motion for summary judgment because there are genuine issues of material fact and because summary judgment is not suitable for the disposition of cases requiring a judicial determination of subjective facts. He further contends the trial court erred in. applying the doctrine of sudden emergency.

A good definition of the sudden emergency doctrine was given in Hickman v. Southern Pac. Transport Co., 262 La. 102, 262 So.2d 385, 389 (1972), as follows:

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.

In Anderson v. May, 01-1031 (La.App. 5 Cir. 2/13/02), 812 So.2d 81, 86, this Court stated:

The sudden .emergency doctrine is applicable to the standard of conduct after an emergency has arisen. The rule of sudden 'emergency cannot be invoked by one who has not used due care to avoid the emergency. It does not apply to lower the standard of care required of motorists before the emergency occurs.

“[S]ince the passage of the comparative fault law, La. Civ.Code, Art. 2323, in 1980, the defense of sudden emergency has been treated simply as one of the factual considerations which is "to be used in assessing the degree of fault to be attributed to a party.” Manuel v. St. John Baptist Parish School Bd., 98-1265, p. 4 (La.App. 5 Cir. 3/30/99), 734 So.2d 766, 769.

Relying on comparative negligence principles, the plaintiff argues that the defendant’s failure to use his high-beam headlights precipitated the accident and was negligence, because if Davis had seen the cyclist earlier there was room to 17move the car to the right and pass the cyclist without going into the ditch. Hence, the plaintiff contends, the sudden emergency doctrine cannot be applied to preclude his recovery.

We do not agree. As pointed out by the defendant, the cyclist would have been able to see the oncoming car well before the car’s driver saw him, because the car’s headlights would have been shining toward the cyclist. Hence, .a reasonable driver would have “no reason to anticipate” a bicyclist to come riding down the center of the road toward oncoming traffic when the bicyclist had not lights but the oncoming traffic did have lights. See Evans v. Olinde, 609 So.2d 299, 302 (La.App. 3 Cir.1992).

A bicycle rider is subject to the same traffic laws as is the driver of a motor vehicle. La.R.S. 32:194. Bicycle riders on a roadway are required to ride as near to the right side of the roadway as practicable, exercising due care when passing a standing vehicle or one proceeding in the same direction. La.R.S. 32:197(A). Vehiclés are to be driven on the right side of the roadway, except in limited circumstances such as overtaking and passing a vehicle going in the same direction. La. R.S. 32:71. A motorist is entitled to assume that traffic laws will be obeyed and other vehicles' will not be traveling in the wrong direction. Crump v. Ritter, 583 So.2d 47, 50 (La.App. 2 Cir.1991), writ denied 588 So.2d 1113.

Under the circumstances we find no error in the trial court’s determination that there is no genuine issue of material fact and that the defendants were entitled to summary judgment as a matter of law. For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

      . After the deposition was over, plaintiff's counsel told the court reporter to forward it to him for his client to read and sign before certifying it. The plaintiff corrected a word on one page (changed "road" to "ditch,” see above) and in another place added testimony, as follows:
      LINES READ: "Yeah. It was real dark. You know, anywhere you go where they got a lot of trees in a wooded area, no light, it's dark." CHANGE LINES TO READ: "Yeah. Brent swerved; there was enough room to miss the cyclist and we did. But after swerving to miss the cyclist, Brent over-corrected; he turned too hard to the left and the back end of the car swung out and the back end of the car went off the edge of the road into the ditch.”
      On the Errata Sheet attached to the deposition the plaintiff gave the reason for the change as "Adding to testimony.” The defendants argue the change was improper and should not be considered. The plaintiff asserted, "This revision was made not only to clarify this particular response, but several earlier responses that unfortunately utilized too much hand gesturing to illustrate how the accident happened.” The plaintiff maintained that his clarification merely clarified what he had been explaining with both testimony and hand gestures.
      We agree adding the testimony was inappropriate. Addition to testimony after a deposition is ended should be done only where the court reporter taking down the deposition erred and omitted testimony; a deponent cannot simply add things he wished to say, but failed to include while under oath. The "correction” to the deposition was inappropriate because it included information not given while the deponent was under oath and subject to cross examination. Here, however, the error is without effect, because the plaintiff reiterated the statement in his affidavit, which serves appropriately as a statement made under oath.


source: Caselaw Access Project

author: JAMES L. CANNELLA, Judge.

license: Public Domain

text:
    Gina Chivleatto McCAIN d/b/a “Shoetique” v. DESIGNER SHOES WAREHOUSE, LLC d/b/a “Unique Shoetique” and ABC Insurance Company.
    No. 03-CA-1022.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Craig S. Sossaman, Joseph B. Harvin, Metairie, LA, for Appellant.
    Marcus L. Giusti, Hannan, Drake & Gi-usti, Metairie, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   JAMES L. CANNELLA, Judge.

Plaintiff, Gina Chivleatto McCain, D/B/A/ “Shoetique” (McCain), appeals from the summary judgment granted in favor of Defendant, Designer Shoes Warehouse, LLC, D/B/A “Unique Shoetique” (DSW), dismissing McCain’s suit for an injunction. For the reasons which follow, we vacate the judgment and remand.

McCain has done business, selling upscale and dyeable shoes, under the name of “Shoetique” since March 12, 1988. McCain registered her trade name on April 27, 1988 with the Louisiana Secretary of State and subsequently renewed that trade name ten years later on March 25,1998. McCain has continuously operated a business under the name of “Shoe-tique” for over 17 years.

In June of 2001, DSW began doing business, selling women’s shoes and accessories at discount prices, and advertising under the name of “Unique Shoetique.” DSW registered that trade name with the Louisiana Secretary of State.

On March 28, 2002, McCain instituted these proceedings, filing a petition for a permanent injunction and monetary damages. McCain thereafter amended her petition deleting her request for monetary damages and now seeks only a permanent injunction, preventing DSW from using the name, “Shoetique.”

[On May 13, 2003, DSW filed a motion for summary judgment which was heard by the trial court on June 5, 2003 and taken under advisement. On July 7, 2003, the trial court granted the summary judgment and dismissed the lawsuit. It is from this judgment that McCain appeals.

McCain contends that the trial court erred in granting the summary judgment because she has a protectable proprietary right in “Shoetique” and DSW has infringed on that right. McCain argues that “Shoetique” is a suggestive term and therefore should be protected. In the alternative, McCain argues that the trial court erred in granting the summary judgment because “Shoetique” is a descriptive term which has acquired a secondary meaning, giving her proprietary rights in the name, which is a factual matter not appropriate for summary judgment.

DSW argues to the contrary that the trial court was correct in granting the summary judgment because “Shoetique” is neither a suggestive nor descriptive term. DSW argues that the name is a generic term, no different from the name “Shoe Store” and, therefore, is not to be protected.

It is well settled that appellate courts review summary judgments de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730, 750; Nuccio v. Robert, 99-1327 (La. App 5th Cir. 04/25/00), 761 So.2d 84, writ denied, 00-1453 (La.6/30/00), 766 So.2d 544; Moody v. United Nat. Ins. Co., 98-287 (La.App. 5th Cir.9/29/98), 743 So.2d 680. Thus, this court must consider whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Smith, supra; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require |4him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact and summary judgment is appropriate. La. C.C. P. art. 966(C)(2). Foster v. Consolidated Employment Systems, Inc., 98-948 (La.App. 5th Cir.1/26/99), 726 So.2d 494.

The Supreme Court has set out the parameters of a trade name infringement claim in Gulf Coast Bank v. Gulf Coast Bank & Trust Company, 94-2203 (La.4/10/95), 652 So.2d 1306 as follows:

The primary issues in a trade name infringement case are (1) whether the party seeking the injunction has a pro-tectable proprietary right in the name it seeks to exclude others from using, and (2) if so, whether there has been an infringement of that right. Radiofone, Inc. v. Mobile-One Sound, Inc., 628 So.2d 95 (La.App. 5th Cir.1993); Merit Indus. Constructors, Inc. v. JE Merit Constructors, Inc., 563 So.2d 1008 (La. App. 1st Cir.1990); Sadie’s Inc. v. Hitchcock, 363 So.2d 1306 (La.App. 4th Cir.1978); Security Ctr., Ltd. v. First Nat’l Sec. Ctrs., 750 F.2d 1295 (5th Cir.1985); Bank of Texas v. Commerce Southwest, Inc., 741 F.2d 785 (5th Cir.1984); Conagra, Inc. v. Singleton, 743 F.2d 1508 (11th Cir.1984); Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786 (5th Cir.1983); Vision Ctr. v. Opticks, Inc., 596 F.2d 111 (5th Cir.1979).
* * *
In determining whether one has a pro-tectable trade name, actual use of a mark or name, or, in other words, priority of appropriation, gives rise to a pro-tectable proprietary interest in the mark or name. New Orleans Checker Cabs, Inc. [v. Mumphrey, 205 La. 1083, 18 So.2d 629 (1944)], supra; Handy [v. Commander, 49 La.Ann. 1119, 22 So. 230 (1897)], supra; Louisiana State Optical of Jefferson Parish, Inc. v. Louisiana State Optical of Kenner, Inc., 469 So.2d 994 (La.App. 5th Cir.1985); Givens Jewelers, Inc. [v. Givens, 380 So.2d 1227 (La.App. 2d Cir.1980)], supra; Sadie’s, Inc., supra; Couhig’s Pestaway Co. v. Pestaway, Inc., 278 So.2d 519 (La.App. 3rd Cir.1973); Boogie Kings [v. Guillory, 188 So.2d 445 (La.App. 3d Cir.1966)], supra; Gallo v. Safeway Brake Shops of Louisiana, Inc., 140 So.2d 912 (La.App. 4th Cir.1962); Restatement, § 18.
1 ¡¡Use alone, however, does not create a protectable proprietary interest; the trademark or trade name must be distinctive, either by being inherently distinctive or by having acquired distinctiveness through secondary meaning. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 2758, 120 L.Ed.2d 615, 625 (1992); Security Ctr., Ltd., supra; Bank of Texas v. Commerce Southiuest, Inc., 741 F.2d 785 (5th Cir.1984); Restatement § 13. See also Radiofone, Inc., supra; Merit Indus. Constructors, Inc., supra; Head v. Waggoner, 552 So.2d 599 (La.App. 2d Cir.1989); Givens Jewelers, Inc., supra; Sadie’s Inc., supra. In determining the distinctiveness of a trademark or trade name, Louisiana courts and federal courts have generally divided trademarks and trade names into four categories: (1) generic; (2) descriptive; (3) suggestive; and (4) arbitrary or fanciful. Radiofone, supra; Merit Indus. Constructors, Inc., supra; Head, supra; Security Ctr., supra; Zatarains, Inc., supra; Vision Ctr., supra; Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir.1976); Restatement §§ 13-15.
A generic term is the name of a particular genus or class of which an individual article, service or business is but a member. Radiofone, 628 So.2d at 97; Merit Indus. Constructors, Inc., 563 So.2d at 1011; Zatarains, Inc., 698 F.2d at 790; Vision Ctr., 596 F.2d at 115; Restatement § 15. Generic terms are considered to be in the public domain and are not susceptible to appropriation for exclusive use and thus are not given trademark or trade name protection. Zatarains, Inc., 698 F.2d at 790; Vision Ctr., 596 F.2d at 115; Restatement § 15. A descriptive term identifies a characteristic or quality of an article, service or business. Radiofone, 628 So.2d at 97; Merit Indus. Constructors, Inc., 563 So.2d at 1011; Head, 552 So.2d at 603; Zatarains, Inc., 698 F.2d at 790; Vision Ctr., 596 F.2d at 115; Restatement § 14. Though ordinarily not protectable, a descriptive name may become a valid, pro-tectable trade name if it acquires a secondary meaning. Radiofone, 628 So.2d at 97; Merit Indus. Constmctors, Inc., 563 So.2d at 1013; Head, 552 So.2d at 603; Zatarains, Inc., 698 F.2d at 791; Vision Ctr., 596 F.2d at 115; Restatement §§ 13-14. Included in the category of descriptive terms which must have secondary meaning in order to be afforded protection as a trade name are geographic terms. Louisiana State Optical of Jefferson Parish, Inc., 469 So.2d at 997; Boston Beer Co. L.P. v. Slesar Bros. Brewing Co., 9 F.3d 175 (1st Cir.1993); Bank of Texas v. Commerce Southwest, Inc., 741 F.2d 785 (5th Cir.1984); Restatement § 14. A suggestive term suggests, rather than describes, a characteristic of the goods, services or business and requires an effort of the imagination by the consumer in order to draw a conclusion as to the nature of the goods, services, or business. Merit Indus. Constructors, Inc., 563 So.2d at 1011; Head, 552 So.2d at 603; Zatarains, Inc., 698 F.2d at 791; Vision Ctr., 596 F.2d at 115-16. Suggestive marks or names need not acquire secondary meaning to be protected. Head, supra; Vision Ctr., 596 F.2d at 116; Zatarains, Inc., 698 F.2d at 791. Arbitrary or fanciful terms bear no relationship to the product, service or business to which it applies. Merit Indus. Constructors, Inc., 563 So.2d at 1013; Zatarains, Inc., 698 F.2d at 791; Vision Ctr., 596 F.2d at 116. Arbitrary and fanciful marks or names, like suggestive ones, are considered inherently distinctive and are accorded protection without having to prove secondary meaning. Zatarains, Inc., 698 F.2d at 791; Vision Ctr., 596 F.2d at 116.
The concept of “secondary meaning” recognizes that words with an ordinary or primary meaning of their own, may, by long use with a particular product, service or business, come to be known by the public as specifically designating that particular product, service or business, and thereby rise to the level of a fully protected trademark or trade name. Radiofone, 628 So.2d at 98; Sadie’s, Inc., supra; Zatarains, Inc., 698 F.2d at 791; Vision Ctr., 596 F.2d at 118 (citing Kellogg Co. v. National Biscuit Co., 305 U.S. 111, 118, 59 S.Ct. 109, 113, 83 L.Ed. 73 (1938)). The burden of proving secondary meaning is on the plaintiff. Radiofone, supra; Zatarains, Inc., supra; Vision Ctr., supra; Restatement § 13, comments a & e. Whether a trademark or trade name has acquired secondary meaning is a factual issue. Boston Beer Co. L.P., supra; Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033 (2d Cir.1992); In re Loew’s Theatres, Inc., 769 F.2d 764 (Fed.Cir.1985); Zatarains, Inc., 698 F.2d at 794; Restatement § 13. Proof of secondary meaning may consist of, among other things, direct evidence such as testimony from individual consumers, surveys, proof of actual instances of confusion, or indirect evidence such as the volume of business done under the name, the length of time the designation has been in use, advertising and promotional efforts, and the conspicuousness of the designation. See e.g. Boston Beer Co. L.P., supra; Ford Motor Co. v. Summit Motor Prod., Inc., 930 F.2d 277, 292 (3d Cir.1991); Restatement, § 13, comment e.

Applying these precepts to the case before us, we look to the name itself, “Shoetique.” As argued by DSW, the name appears to be the combination of the two words “shoe” and “boutique.” While each of these two words, if used, would be generic, denoting nothing more that a product and a business, we do not find that the use of parts of the words in the particular combination as used herein result in a generic term. In fact, looking to Webster’s New Collegiate Dictionary, we find that the word “shoetique” is not a word at all. However, we also do not find the name to be a “suggestive” one, as argued by McCain. Rather, we find that the name “Shoetique” is a creative combination of words which forms a descriptive name and a secondary meaning. As held in Gulf Coast Bank, supra., the determination of whether a name has taken on a secondary meaning is a factual one.

In the instant case both parties have presented evidence addressing whether “Shoetique” has acquired a secondary meaning making it distinctive such that McCain has a protectable proprietary interest in the name. McCain points out that she has used the name for her businesses for 17 years and has expended a great deal over the years in advertising and promotion of her businesses under that name. McCain filed an affidavit in opposition to the motion for summary judgment stating that she had received numerous phone calls from confused parties, including her past customers, who were dissatisfied with their products from the other store. McCain provided some names of customers in her answers to interrogatories. Finally, McCain points out that although DSW provided information about other business as using the “Shoetique” name, none were from this state. The name in this area is unique to her business. DSW countered with information about the small volume of McCain’s business last year and the fact that the two stores sell different kinds of shoes. DSW also noted that McCain did not produce information concerning the amount of money spent this year on | ^advertising her business. DSW has pointed out that McCain does not presently use the name alone but rather has a conjoined business with a children’s clothing store, “The Lollipop Shoppe” and answers the phone by saying, “The Lollipop Shoppe/Shoetique.” As stated above, the question of whether a descriptive name has taken on a secondary meaning and therefore acquires a protect-able proprietary character is a question of fact which was, in this case, hotly disputed. Questions of fact are not properly determined by summary judgment.

Accordingly, we find that because there are material facts at issue in this case, the trial court erred in granting the summary judgment in favor of DSW and we vacate the judgment. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of appeal are assessed against DSW.

JUDGMENT VACATED; CASE REMANDED.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Angel K. POPLAR v. DILLARD’S DEPARTMENT STORES, INC. and ABC Insurance Company.
    No. 03-CA-1023.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Edwin R. Fleischmann, Jr., Fleischmann Law Firm, Metairie, LA, Raymond S. Steib, Jr., Gretna, LA, for Plaintiff-Appel-lee.
    Robert D. Peyton, Robert E. Peyton, Christovich & Kearney, L.L.P, New Orleans, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Dillard Department Stores, Inc., defendant-appellant, from a $16,617.40 judgment in favor of Angel Poplar, plaintiff-appellee, who broke several teeth when she bit into a foreign object in a shrimp po-boy at defendant’s restaurant. Because we find neither legal nor manifest factual error in the judgment we affirm.

The facts are straightforward. At the time of the incident in question here, plaintiff had an upper dental bridge which consisted of two center false front teeth attached to the natural teeth on either side. She was eating a shrimp po-boy at defendant’s restaurant when she bit into a hard object which she later described as being about one inch long. She said that she felt her bridge come loose in her mouth and that she swallowed the object without reflecting on what was happening. She immediately informed the restaurant manager and went into the ladies room to see what had happened. She discovered then that the two side supporting teeth had broken off at the gum line and the entire bridge had thus come loose.

After a bench trial, plaintiff was awarded $4,711.00 for dental bills, $1,906.40 in lost wages, and $10,000.00 in general damages. No reasons for judgment appear in the record. Defendant now appeals.

The only issue before this court on appeal is whether the trial judge properly found the defendant restaurant hable for plaintiffs injuries. The defendant relies on Porteous v. St. Ann’s Cafe & Deli, 97-0837 (La.5/29/98), 713 So.2d 454, for the proposition that in restaurant harmful food cases the duty-risk analysis is the applicable law. It further urges that under this analysis the plaintiff in the present case failed to prove a specific act of negligence which would establish its liability to her. While we agree that Porteous, supra, is the law, we disagree that plaintiff failed to prove her case.

Factual determinations are reviewed on appeal under the manifest error standard. In the present case the trial judge found that plaintiff was credible in testifying that she bit into a foreign substance in the sandwich and that it broke her bridge. Because these findings are based on the trier of fact’s assessment of the veracity of the witness, and in the absence of other evidence which would render the testimony implausible, we must affirm those findings. Stobart v. State through DOTD, 617 So.2d 880 (La.1993).

That being established, the next issues are whether the defendant had a duty to protect its patrons from such foreign substances, and if so, whether it breached that duty. In Porteous, supra, the court stated that:

A food provider, in selecting, preparing, and cooking food, including the removal of injurious substances, has a duty to act as would a reasonably prudent man skilled in the culinary art in the selection and preparation of food, (at 457)

Defendant’s position here is that unless a plaintiff can show some specific act constituting a breach of the above duty on the part of the restaurant, she can not prevail. We hold otherwise. In our opinion the doctrine of res ipsa loquitur is applicable on the facts of this case. That doctrine is a rule of circumstantial evidence which permits the fact finder to infer negligence where 1) the circumstances surrounding the event are such they would not normally occur in the 14absence of negligence on someone’s part, 2) the instrumentality was in the exclusive control of the defendant, and 3) the negligence falls within the duty of care owed the plaintiff. However, even where the doctrine is applicable, the inference of a breach of duty is only one aspect of the totality of the evidence in a case, and this inference may be overcome by contrary evidence. Cangelosi v. Our Lady of the Lake Medical Ctr., 564 So.2d 654 (La.1989).

All three elements are present here. There is no question that the presence of a foreign object in prepared food is a circumstance from which it can be inferred that someone was negligent in the preparation of that food. It is equally clear that the ingredients of the sandwich were in the control of the restaurant staff. Finally, the negligent act of serving food with a foreign object in it is within the ambit of the duty owed to customers. Thus an inference of negligence on defendant’s part was supportable.

The final part of the analysis is whether there was other countervailing evidence sufficient to produce a result different from the inference. This of course is a factual determination subject to the manifest error rule. Here the trial judge tacitly concluded that the inference of breach of duty was not outweighed by other evidence, and therefore found the defendant liable. We find no manifest error in this finding and so must affirm it.

We finally note that in Porteous, supra, the defense showed that its kitchen procedures would filter out most foreign objects, but that the pearls in oysters could not be detected without undertaking extraordinary procedures. The court there stated that when objects are innate to the food itself the duty to eliminate such objects is less demanding. It held that the restaurant had not breached its duty in failing to detect the pearl. In the present case there was no showing by defendant |Rthat shrimp sometimes contain hard foreign objects and therefore that it had a lesser duty to watch for such objects.

For the foregoing reasons, the judgment is hereby affirmed.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    Clement and Joan EISWIRTH v. ANTHONY L. GOLEMI, CONTRACTOR, INC.
    No. 03-CA-1065.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Kyle Schonekas, Maria G. Marks, Schonekas, Winsberg, Evans & McGoey, LLC, New Orleans, LA, for Clement and Joan Eiswirth, Plaintiff/Appellant.
    Temple A. Stephens, Stephens & Grace, Metairie, LA, for Anthony L. Golemi Contractor, Inc., Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

Plaintiffs appeal from a judgment of the trial court granting defendant’s exception of prescription. For the reasons stated more fully herein, we reverse the trial court’s judgment and remand the case for further proceedings.

Facts and Procedural History

On December 28, 2000, Clement and Joan Eiswirth filed this petition for damages and breach of contract against Anthony L. Golemi Contractor, Inc. Plaintiffs alleged that they entered into a contract with Golemi for the construction of a residential building and that after moving into the home they noticed certain defects in the construction of the home that were brought to defendant’s attention. Plaintiffs allege that defendant failed to make the necessary repairs and replacements, and that defendant is therefore in violation of the contractual provision requiring the contractor to timely provide a completed product. Plaintiffs further allege that the defects in the home caused by defendant’s negligence constitute a breach of the warranty of good workmanship.

|3In response to this petition, Golemi filed exceptions of no cause and/or right of action, and an exception of prescription. Golemi also filed a reconventional demand against the Eiswirths for sums he alleged was owed under the contract and an answer and third party demand against various subcontractors who worked on the project.

A hearing was held in the trial court on defendant’s exceptions on March 1, 2002. Following the hearing, the trial court took the matter under advisement. By judgment rendered June 5, 2002, the trial court denied defendant’s exceptions of no cause and no right of action. However, the court granted defendant’s exception of prescription. Plaintiffs subsequently filed a devol-utive appeal, and a panel of this court dismissed that appeal because the judgment had not been certified as a final judgment pursuant to La. C.C.P. art. 1915 B. Eiswirth v. Anthony L. Golemi Contractor, Inc., 02-1060 (La.App. 5 Cir. 1/28/03), 839 So.2d 346.

Plaintiffs subsequently filed a motion to certify the judgment as final in the trial court, and on May 30, 2003, the trial court designated the judgment as final pursuant to the provisions of La. C.C.P. art. 1915 B(l). Plaintiffs now appeal from the final judgment granting defendant’s exception of prescription.

Breach of Warranty

By their exception of prescription, defendant argues that plaintiffs’ claims under the New Home Warranty Act have prescribed pursuant to the provisions of La. R.S. 9:3144 and 9:3146. Defendant did not contend in the trial court that plaintiffs breach of contract claims have prescribed nor was this issue addressed during the exception hearing, and thus the trial court’s judgment granting the exception of prescription only relates to plaintiffs’ claims for breach of warranty. Plaintiffs’ claims of breach of contract, as [4well as defendant’s reconventional demand and third party demand, are still pending before the trial court.

The New Home Warranty Act (“NHWA”) governs the exclusive remedies, warranties and prescriptive periods as between a builder and owner relative to home construction. La. R.S. 9:3150. La. R.S. 9:3144 provides in part

A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from major structural defects due to noncompliance with the building standards or due to other defects in material or workmanship not regulated by building standards.
(3)Ten years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.

Pursuant to La. R.S. 9:3145, this section also requires the owner to give the builder written notice, by registered or certified mail, of the existence of the defect, giving him an opportunity to comply with the terms of this section, within one year from the owner’s discovery of the defect.

At the time the Eiswirths’ petition was filed, the applicable prescriptive period for suits brought pursuant to this section was contained in La. R.S. 9:3146, which provided:

Is Any action to enforce any warranty provided in this Chapter shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

As defined by La. R.S. 9:3143, the warranty commencement date is the date legal title to the home is conveyed or the date the home is first occupied, whichever comes first. According to plaintiffs’ petition, the parties executed a “Notice of Termination/Substantial Completion of Work” on March 18, 1999, and a final punch list of remaining problems was forwarded to Golemi at this time. Plaintiffs subsequently moved into the home, and on April 22, 1999, the parties executed a cancellation of the recorded building contract. Defendant admits in brief that the warranty commencement date occurred in April of 1999.

The petition for damages in this case alleges that plaintiffs notified the builder of defects in the home by correspondence dated August 15, 1999, February 13, 2000 and May 16, 2000. Defendant failed to address or repair the defects as listed by plaintiffs, and on March 18, 2000, plaintiffs forwarded an additional punch list to Gole-mi in an attempt to amicably resolve the matter. This petition for damages and breach of contract was subsequently filed on December 23, 2000.

Prescription

In the exception of prescription, defendant contends that the claims for breach of warranty are governed by the one year prescriptive period contained in La. R.S. 9:3144 A(l), and that plaintiffs’ claims filed more than one year and thirty days after the warranty commencement date have prescribed. Plaintiffs respond that their petition alleges major structural defects which are governed by R.S. 9:3144(A)(3), which allows a ten year prescriptive period. Plaintiffs also contend that the one year prescriptive | ^period for their remaining allegations was interrupted by defendant’s own acts.

Generally, the party raising the exception of prescription bears the burden of proof, unless prescription is evident from the face of the pleadings, in which case the plaintiff bears the burden of showing that the action has not prescribed. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992). Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be extinguished; thus, of two possible constructions, that which favors maintaining, as opposed to barring, an action should be adopted. Lima v. Schmidt, 595 So.2d 624, 629 (La.1992).

In their petition, plaintiffs allege that defects in their home, including structural defects in walls, partitions and flooring, were caused by defendant’s negligence and his failure to comply with manufacturer’s suggestions. Under the NHWA provisions, the warranties provided by law range from one to ten years depending on the type of warranty asserted, and plaintiffs’ suit was filed within 18 months of the warranty commencement date. The defects listed in the petition include structural defects in walls, partitions and flooring. Although the type of damages asserted by the Eirwirths are the types of defects squarely addressed by the NHWA, the length of the warranty applicable to these types of defects as stated in La. R.S. 9:3144 cannot be ascertained from the general listing of defects. Thus, prescription of plaintiffs’ claims are not evident from the face of plaintiffs’ petition, and defendant bears the burden of proving the claims have prescribed. The issue presented for our review, then, is whether defendant met its burden of proving plaintiffs’ breach of warranty claims have prescribed.

|7At the outset, we note an inconsistency between the provisions of La. R.S. 9:3144 A(l), which confers a one year warranty for defects in material or workmanship, and the provisions of La. R.S. 9:3145, which requires the homeowner to give notice to the builder of a defect within one year of the discovery of the defect. Although the inconsistency in these two provisions has been resolved by the amendment of La. R.S. 9:3146 providing for a preemptive period, it is unclear from the pre-amendment provisions whether a homeowner’s required notice to the builder interrupts the tolling of the prescriptive period. There are no Louisiana cases which have squarely addressed these provisions of the NHWA, although the court in Leon v. Deters Custom Homes, 97-772 (La.App. 1 Cir. 4/8/98), 711 So.2d 346, 348, in reversing an exception of prescription noted as follows:

Further, it occurs to this court that, if the last attempt at repairing the carpet was less than one year from the date suit was filed, perhaps prescription was interrupted during the attempted repairs so that prescription has not run.

Additionally, as stated by this Court in Ory v. A.V.I. Const., Inc., 03-72 (La.App. 5 Cir. 5/28/03), 848 So.2d 115, 120, “it is unclear whether the prescriptive period in pre 2001 R.S. 9:3146 is subject to interruption or tolling as is the prescriptive period for redhibition found in La. C.C. art. 2534(C).” The court in Ory concluded that even using the provisions of La. C.C. art. 2534(C) which allows prescription to be interrupted in a redhibition suit while repairs are attempted, the facts of that case nonetheless indicated that plaintiffs’ suit had prescribed.

The record in this case indicates that prior to the warranty commencement date in April of 1999, the Eiswirths gave Golemi notice of a list of items which were unsatisfactory in the completion of the home. Further, subsequent to April of 1999 and during the one-year warranty | ¿period, the Eiswirths notified Golemi by certified mail on at least three occasions of certain defects in their home. Copies of this correspondence were introduced in opposition to defendant’s exception of prescription and are contained in the record before us.

By correspondence dated August 15, 1999, Dr. Eiswirth referred to an earlier punch list of uncompleted items and workmanship issues and stated that he expects “prompt and complete resolution of all items submitted.” On February 13, 2000, Dr. Eiswirth sent correspondence to Mr. Golemi calling his attention to two areas which had failed to be repaired properly: inadequate draining in the carport area and cracked, warped exterior doors which were not fully operational. Dr. Eiswirth also listed numerous other issues in the home and requested that Mr. Golemi resolve these problems.

By correspondence dated May 16, 2000, Dr. Eiswirth again notified Mr. Golemi that carport drainage was a problem and that the exterior doors were cracking, warped and failing. This correspondence also referred to cracking floor tiles, ceiling cracks on the interior of the home and mildewed carport ceiling. It is further evident from this correspondence that the parties had submitted these issues to a mediation company, and that Mr. Golemi and Dr. Eiswirth were in negotiations at this time considering repairs to the stated defects in the home.

From this evidence in the record, we find that from early 1999 until mid 2000, the Eiswirths were attempting to resolve the defects in their home with the builder, Mr. Golemi. The Eiswirths complied with the provisions of La. R.S. 9:3145 by notifying Mr. Golemi by certified mail of the defects within one year of their knowledge thereof and gave Mr. Golemi a reasonable opportunity to comply with the provisions of the NHWA. These efforts apparently proved to be unsuccessful, and plaintiffs instituted this suit [ 3within six months from the date the last repair was attempted by Mr. Golemi.

Defendant contends that the defects listed by plaintiffs are merely punch list items which did not result in actual physical damage to the home as required by La. R.S. 9:3144 B(13). However, we are unable to find from the evidence in the record that the defects listed by plaintiffs, including cracked floor tiles, cracked or mildewed ceilings, insufficient drainage, and cracked and failing exterior doors, are defects which did not result in actual physical damage to the home.

Further, although defendant contends that plaintiffs have failed to list any major structural defects as defined by La. R.S. 9:3143(5) which would fall within the ten year warranty period contained in La. R.S. 3144 A(3), we fail to find the evidence in the record supports such a position. Plaintiffs have listed as defects structural defects in walls and flooring, and plaintiffs have submitted a report of an engineering firm that inspected the home in 2001, finding problems with the roof support that was in violation of the Jefferson Parish Building Code. We are unable to conclude that these allegations and supporting documents do not constitute a basis for proving a major structural defect within the meaning of La. R.S. 3143(5).

Under the circumstances presented herein, we are unable to find that plaintiffs’ cause of action for breach of warranty has prescribed. In our view, defendant has failed to meet its burden of proving that the warranties listed in La. R.S. 9:3144 and the prescriptive period contained in La. R.S. 9:3146 preclude plaintiffs’ suit in this case. We therefore conclude that the trial court erred in maintaining defendant’s exception of prescription.

Accordingly, the trial court’s judgment granting defendant’s exception of prescription as to plaintiffs’ claims of breach of warranty is hereby linvacated and reversed. Further, the matter is remanded to the trial court for further proceedings. Defendant shall bear all costs of this appeal.

REVERSED AND REMANDED.

      . This statute was amended by Acts 2001, No. 179 Section 1, wherein “ten years” was replaced with "seven years.” However, the amendment became effective after plaintiffs’ cause of action arose. Further, plaintiffs’ claims were raised within two years of the warranty commencement date, and the amendment does not affect our analysis herein.

      . By the passage of Acts 2001, No. 179 Section 1, a preemptive period was substituted for the stated prescriptive period. However, this amendment does not apply to the facts of this case because plaintiffs' cause of action arose and their lawsuit was filed prior to the amendment of the statute.


text:
    Sheriff Greg CHAMPAGNE v. Aaron MANUEL.
    No. 03-CA-1147.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      James F. Ryan, Donovan & Lawler, Me-tairie, LA, for Appellant, Aaron Manuel.
    John H. Musser, IV, Don Almerico, Law Office of Don Almerico, St. Rose, LA, for Appellee, Sheriff Greg Champagne.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

Defendant, Aaron Manuel, appeals from a default judgment in favor of plaintiff, which awarded damages of $5,896.84 plus legal interest. For the reasons that follow, we annul and set aside the judgment of the trial court confirming the preliminary default and remand this matter for further proceedings.

On April 4, 2003, plaintiff, St. Charles Parish Sheriff Greg Champagne, filed a “Petition to Recover Damages for Breach of Contract” naming Aaron Manuel as defendant. In his petition, Sheriff Champagne alleged that, on March 29, 2001, he and Manuel entered into an employment contract, in which Manuel agreed to work for the St. Charles Parish Sheriffs Office(“SCPSO”) for at least two years. Sheriff Champagne further alleged that Manuel resigned from the SCPSO on February 15, 2002, after working for the SCPSO for less than one year. Furthermore, Sheriff Champagne alleged that, because Manuel violated the terms of their employment contract, he owes SCPSO $5,896.84 as reimbursement for the cost of his “P.O.S.T. training.” Sheriff Champagne attached the following to his petition: a copy of his letter to Manuel offering Manuel a position with SCPSO; a copy of Manuel’s resignation letter given to his supervisor on February 1, 2002; a copy of an SCPSO “resignation statement” executed by Manuel dated February 15, 2002; a copy of an |3invoice dated February 13, 2002 for amount due from Manuel to SCPSO for “training reimbursement;” and a copy of SCPSO’s certified demand letter to Manuel.

On July 7, 2003, Sheriff Champagne took a preliminary default against Manuel. A confirmation hearing was held on July 16, 2003. The transcript of that day’s hearing reflects that the Sheriffs counsel asked “that the file and its contents be offered, filed, and introduced into evidence.” Thereafter, the trial court confirmed the default judgment against Manuel. Manuel now appeals that judgment.

On appeal, Manuel sets forth three assignments of error: the trial court erred in entering a default judgment based solely on hearsay testimony about service of the petition on Aaron Manuel; the trial court erred when it entered the default judgment for the cost of P.O.S.T. training based on an employment contract that was silent on the issue; and the trial court erred when it awarded $5,896.84 in the default judgment because the evidence to prove the amount was not proper evidence for that purpose.

Our brethren on the Second Circuit Court of Appeal discussed the procedure and proof required to confirm a preliminary default in Martin v. Sanders, 35,575 (La.App. 2 Cir. 1/23/02), 805 So.2d 1209, 1211-1213: Procedure articles 1701(A) and 1702. Article 1701(A) reads:

The governing articles regarding the proper procedure and proof needed to confirm a preliminary default judgment are found in Louisiana Code of Civil
If a defendant in the principal or incidental demand fails to answer within the time prescribed by law, judgment by default may be entered against him. The judgment may be obtained by oral motion in open court or by written motion mailed to the court, either of which shall be entered in the minutes of the court, but the judgment shall consist merely of an entry in the minutes.

|4La. C.C.P. art. 1702 provides, in pertinent part:

A. A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. (1) When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.
* * *
A default judgment must be confirmed by proof sufficient to establish a prima facie case. La. C.C.P. art. 1702. A prima facie case is established when the plaintiff proves the essential allegations of the petition with competent evidence, to the same extent as if the allegations had been specifically denied. Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989); Sessions & Fishman v. Liquid Air Corp., 616 So.2d 1254 (La.1993). The plaintiff must convince the trial court that it is probable that he would prevail at- a trial on the merits. Carroll v. Coleman, 27,861 (La.App. 2 Cir. 1/24/96), 666 So.2d 1264; McRay v. Booker T. Washington Nursing Home, 30,399 (La.App. 2 Cir. 4/8/98), 711 So.2d 772.
In reviewing a default judgment, we. are restricted to a determination of the sufficiency of the evidence offered in support- of judgment. Baugh v. Parish Government Risk Management Agency, 30,707 (La.App. 2 Cir. 6/24/98), 715 So.2d 645, 646; Brown v. Trinity Insurance Company, 480 So.2d 919 (La.App. 2 Cir.1985); Waltzer v. U-Haul Co. of South Louisiana, Inc., 503 So.2d 574 (La.App. 4 Cir.1987). To obtain a reversal where the record does not contain a transcript of the confirmation hearing, the defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and is correct. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (La.1972); Baugh, supra, at 646. The presumption that a default judgment was supported by sufficient evidence does not attach when the record upon which the judgment was rendered indicates otherwise. Sessions & Fishman, supra; Caruso v. McBee, 99-3064 (La.App. 4 Cir. 6/14/00), 767 So.2d 134; Ereunao Oil & Gas, Inc. v. Northern, 98-1239 (La.App. 3 Cir. 2/3/99), 736 So.2d 893.
The jurisprudence holds that when an obligation is- based on a writing, prima facie, proof of the obligation requires introducing that writing. Ascension Builders, Inc., supra; Sudds v. Protective Casualty Insurance Co., 554 So.2d 149, 151 (La.App. 2 Cir.1989).

1 See also, Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280, writ denied, 01-1035 (La.6/1/01), 793 So.2d 196 (citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989)).

In his second assignment of error, Manuel specifically argues that record does not contain sufficient prima facie evidence that Manuel’s “employment contract” with the SCPSO contained a two-year term. Manuel further contends that the record does not contain prima facie evidence of a clause in his “employment contract” that required him to reimburse SCPSO for training if he discontinued his employment before his two-year anniversary date. We agree but for reasons other than those espoused by Manuel.

In this case, our review of the record reveals that the “employment contract” in question was not admitted into evidence, and, thus, the trial court erred in rendering a default judgment against Manuel. Here, although Manuel refers to the Sheriffs March 29, 2001 offer letter as the “employment contract” in question, it is clear from the SCPSO’s February 7, 2002 demand letter to Manuel that the “employment contract” that the SCPSO is relying on is the employment application that Manuel submitted to SCPSO. The pertinent part of that letter reads, “In the application that you filled out with this agency, you agreed to reimburse the St. Charles Parish Sheriffs Department [for] the cost of your POST training if you leave[sie] within two years. We are informing you that the cost of training you amounted to $6,600.00.”

Where the legal action arises from a written obligation, prima facie proof of the obligation is the writing itself. Ascension Builders, Inc., supra; Sudds v. Protective Casualty Insurance Co, supra. When Sheriff Champagne failed to introduce a copy of the employment application that he relies upon as the | (¡employment contract, he failed to meet his burden of proof. Accordingly, we find that the trial court erred in granting a default judgment.

In this case, Sheriff Champagne failed to provide sufficient evidence to support a default judgment pursuant to La. C.C.P. art. 1702. Accordingly, the judgment of the trial court granting a confirmation of a default judgment against Aaron Manuel is annulled and set aside and the matter is remanded to the district court for further proceedings. All costs are assessed against Sheriff Champagne.

DEFAULT JUDGMENT ANNULLED AND SET ASIDE; CASE REMANDED

      . After a thorough examination of the record, we do not find this “file" in the appellate record.

        . Because we are reversing the judgment on other grounds, we pretermit discussion of appellant's first assignment of error regarding the absence from the record of proof of service of the petition and third assignment of error regarding the sufficiency of the proof of the alleged damages.


author: SOL GOTHARD, Judge.

text:
    Sheriff Greg CHAMPAGNE v. Jeffery WILSON.
    No. 03-CA-1148.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      James F. Ryan, Donovan & Lawler, Me-tairie, LA, for Defendant/Appellant.
    John H. Musser, IV, Don Almerico, St. Rose, LA, for Plaintiff/Appellee.
    Panel composed of Judges SOL GOTHARD, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   SOL GOTHARD, Judge.

Defendant, Jeffrey Wilson, appeals from a judgment confirming a preliminary default in favor of plaintiff, and awarding damages of $3,642.99 plus legal interest and costs. For the reasons that follow, we annul and set aside the judgment of the trial court confirming the preliminary default, and we remand this matter for further proceedings.

On April 1, 2003, plaintiff, Sheriff Greg Champagne, filed a petition for damages for breach of contract against Jeffrey Wilson. In his petition, plaintiff alleged that Wilson had entered into an employment contract, in which he agreed to maintain employment for two years, that Wilson resigned from employment before the two year period, and as a result he owed for the cost of his P.O.S.T. certification which had been paid by Sheriff Champagne, pursuant to the employment contract. The petition further alleges that Wilson owed one payment for a handgun he purchased through the Sheriffs Office. Finally, the petition requested attorney’s fees of twenty-five (25%) percent.

On July 7, 2003, plaintiff took a preliminary default against Mr. Wilson. A confirmation hearing was conducted on July 16, 2003. Entered into evidence at the hearing were the Affidavit of Correctness of Account and Non-Military Status. | ¡¡Also in the record is the Sheriffs offer of employment, via letter, containing defendant’s signed acceptance, and defendant’s letter of resignation. In addition, the record contains the Sheriffs letter of amicable demand, in which plaintiff alleges that defendant agreed to reimbursement of training if he left employment within two years in the application he filled out for employment, and the invoice for fees owed. The transcript of the hearing reflects that the return of personal service on defendant was introduced, although the return does not appear in this record on appeal. Thereafter the trial court rendered judgment confirming the default against Wilson.

In his appeal, Wilson argues that the trial court erred in entering a default based on hearsay testimony about service of the petition. He further argues that the trial court erred in awarding the cost of the P.O.S.T. training when the employment contract was silent on that issue. Finally, he argues that the evidence to prove the amount of $8,642.99 was not proper evidence.

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. La. C.C.P. art. 1702 A. For a plaintiff to obtain a default judgment, he must establish the elements of a prima facie case with competent evidence, as fully as though the defendants denied each of the allegations in the petition. The plaintiff must present competent evidence that convinces the court that it is probable that he would prevail on a trial on the merits. Schaff v. Cardinal Services, Inc., 00-1164 (La.App. 5 Cir. 2/14/01), 778 So.2d 1278, 1280; writ denied 2001-1035 (La.6/1/01) 793 So.2d 196, citing Thibodeaux v. Burton, 538 So.2d 1001, 1004 (La.1989).

When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. J^The court may, under the circumstances of the case, require additional evidence in the form of oral testimony before entering judgment. La. C.C.P. art. 1702(B)(1).

The determination of whether there is sufficient proof is a question of fact and should not be disturbed on appeal unless it is manifestly erroneous. Schaff, supra.

We find merit to defendant’s contention that the trial court erred “when it entered the default judgment for the cost of P.O.S.T. training based on an employment contract that was silent on the issue.”

When an obligation is based on a writing, prima facie proof of the obligation requires introduction of the writing. A jurisprudential exception to this rule exists when a plaintiff requests admissions of contractual coverage with the defendant or production of the policy, and the defendant fails to comply. Burks v. Cambeck & Partners, 01-948 (La.App. 5 Cir. 12/26/01), 803 So.2d 438; Sudds v. Protective Cas. Ins. Co., 554 So.2d 149 (La.App. 2 Cir.1989).

The letter of amicable demand states that “In the application that you filled out with this agency, you agreed to reimburse the ... Sheriffs Department the cost of your POST training if you leave within two years.” However, the record does not contain the application filled out by Mr. Wilson, nor does that transcript of the hearing reflect that the application, or any employment contract, was introduced into evidence at the default hearing. The demand letter is insufficient to prove the terms of the contract between the plaintiff and Wilson.

Wilson alleges that proof of service was not present in the record when the record was lodged, and that counsel’s statement during the default hearing that “We offer, file, and introduce the entire file in this particular instance ... the personal service of the petition on 4-2-03 of this particular year on the defendant” is hearsay and insufficient to support a default judgment. Wilson also alleges that the plaintiff failed to provide proper evidence to prove the amount of the debt at | Rthe default hearing. Wilson contends that this suit is not one for open account so as to allow plaintiff to use an invoice and affidavit of the amount owed to support the indebtedness. Because we find that the default judgment must be annulled, we need not reach these issues.

For the above discussed reasons, we find that plaintiff failed to provide sufficient evidence to support a default judgment pursuant to La. C.C.P. art. 1702. Accordingly, the judgment of the trial court granting plaintiffs confirmation of a default judgment against Jeffrey Wilson is annulled and set aside and the matter is remanded to the district court for further proceedings. All costs are assessed against plaintiffiappellee.

JUDGMENT OF DEFAULT ANNULLED AND SET ASIDE; REMANDED.


text:
    STATE of Louisiana v. Toney CONVERSE.
    No. 03-KA-0711.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 30, 2003.

      Paul D. Connick, Jr., District Attorney, Thomas J. Butler, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for PlaintifflAppellee.
    Kevin V. Boshea, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and CLARENCE E. McMANUS.
   SOL GOTHARD, Judge.

Defendant, Toney Converse, appeals his conviction and sentence on various drug violations. For reasons that follow, we affirm.

The record shows that on May 25, 2001, the Jefferson Parish District Attorney issued a five-count bill of information against defendant. In counts one, two, three, and four, the State charged defendant with distribution of cocaine in violation of La. R.S. 40:967(A). Count five charged distribution of cocaine within 1000 feet of a school in violation of La. R.S. 40:981.3. Defendant was arraigned on June 25, 2001, and pled not guilty to all charges.

On November 27, 2001, the State amended the bill of information, changing count four .to a charge of possession with intent to distribute cocaine, and count five to distribution of cocaine. On that day, defendant was tried on all counts before a twelve-person jury. The jury returned a verdict of guilty as charged as to all counts.

On-December 11, 2001, the trial court sentenced defendant to eighteen years at hard labor as to each of the five counts. The judge ordered that the sentences run concurrently with each other, and that the first five years be served without 13benefit of parole, probation or suspension of sentence. .The court further stipulated that defendant would not. receive credit for time served under home incarceration prior to trial. On the same day, the State filed a habitual offender bill of information, alleging defendant to be a second felony offend^er. The prosecutor informed the court that the State would seek enhancement of defendant’s sentence on count one. Defendant was advised of the State’s allegations, and entered a denial.

On February 19, 2002, the trial court held a habitual offender hearing, after which the defendant was adjudicated a second felony offender. The trial judge vacated defendant’s original sentence as to count one, and imposed a habitual offender sentence of eighteen years at hard labor, without benefit of probation or suspension of sentence.

Defendant filed a motion to reconsider sentence and a motion for appeal on February 19, 2002. On February 21, 2002, the trial court denied the motion to reconsider sentence, but granted the motion for appeal.

FACTS

Sergeant John Ladd, a narcotics officer with the Jefferson Parish Sheriffs Office, received an anonymous complaint from a drug hotline that indicated defendant, To-ney Converse, was selling narcotics in an apartment complex at 261 Jules Avenue in Jefferson. Sergeant Ladd passed on the information to Lieutenant Raymond Gibbs, supervisor of the narcotics division.

On April 18, 2001, Lieutenant Gibbs instructed Agent Megan Carter, an undercover narcotics officer, to drive through the Jules Avenue complex and attempt to make contact with defendant. Agent Carter was accompanied by an officer trainee who was also working undercover. Surveillance officers were stationed in the area to monitor any transactions, and to ensure Agent Carter’s safety. Agent Carter proceeded to Jules Avenue and asked a man she encountered |4there if he knew where she could get a “twenty,” i.e., a rock of crack cocaine. The man responded that he knew of someone who might have one. The man left Agent Carter, and returned shortly thereafter to inform her that someone was going to get the crack she wanted.

Defendant approached Agent Carter’s car window. He wore a Tulane University T-shirt. Agent Carter asked whether he was a Tulane student, and defendant answered affirmatively. Defendant gave Agent Carter twenty dollars worth of crack cocaine, and she gave him twenty dollars in currency. Defendant also gave Agent Carter a piece of paper bearing the initials T.C., and a pager number. Defendant told Agent Carter to use that number should she wish to purchase more cocaine. Agent Carter left the area, met with backup officers and turned over the narcotics evidence to them.

On April 20, 2001, Agent Carter called defendant’s pager, using the number he had given her. Defendant responded to the page by telephoning her. She asked him whether he would sell her more cocaine. Defendant told her to meet him, and she proceeded to 261 Jules Avenue. When she arrived, Agent Carter paged defendant again. Defendant came out of the residence to meet her. Agent Carter purchased one hundred dollars worth of crack cocaine from him, and then left the area.

On May 2, 2001, Agent Carter contacted defendant to arrange a third transaction. She proceeded to 261 Jules Avenue, and defendant was waiting outside of the building. Agent Carter purchased two hundred dollars worth of crack cocaine from him.

On May 7, 2001, Agent Carter paged defendant, and he contacted her. She told him she wanted to buy more crack cocaine from him. Defendant instructed her to meet him at a Shell filling station on Jefferson Highway at Labarre Road. | .¡Defendant was waiting there when agent Carter arrived. Defendant sold her one hundred dollars worth of crack cocaine.

Agent Carter testified that her vehicle was outfitted with a hidden camera and audio equipment. The transactions, with the exception of the third one, were captured on videotape. Agent Carter explained that defendant stood at the passenger side of her vehicle during that exchange, and he was out of the camera’s range. There was, however, an audio recording of the third transaction. Video and audio tapes were played at trial for the jury.

On May 7, 2001, Agent Thomas Brison compiled a photographic lineup and presented it to Agent Carter. Agent Carter testified that she identified defendant as the man who had sold her crack cocaine. On May 10, Agent Carter contacted defendant for the last time, to direct him to a location where he would be arrested. Agent Carter arranged to meet defendant at the Shell filling station, where fellow officers assigned to the surveillance team waited there for defendant to arrive. Agent Carter gave them a description of defendant’s vehicle.

Lieutenant Gibbs testified that he saw defendant drive into the Shell Station’s parking lot. Defendant exited his car, and officers approached him. Defendant attempted to flee on foot, and was stopped and placed under arrest by Lieutenant Alfred McNally. Once defendant was handcuffed, Gibbs and Agent Brison secured and searched his vehicle. They discovered a Wendy’s Restaurant cup in the car’s console. It contained crack cocaine.

Charles Krone, an expert in the analysis and testing of controlled dangerous substances testified that he conducted a series of tests on samples of the white, rock-like material Agent Carter and other officers obtained from defendant. The tests were all positive for cocaine.

J£AW

In brief to this court, defendant assigns three errors for our review. In the first he asserts he was denied effective assistance of counsel at both the trial and pretrial proceedings. Defendant argues that his trial counsel was ineffective in several respects. Among other things, defendant complains that counsel was woefully deficient in his trial preparation. Defendant further argues that counsel failed to file pertinent post-trial motions. Defendant concedes that the issue would be better addressed in an application for post-conviction relief, and agrees that the record is insufficient for our review of the matter in this appeal. Defendant asks this court to remand the matter for an evidentiary hearing on this assignment of error before considering the appeal.

The State agrees that the record is insufficient for our review of this issue and that an evidentiary hearing in the district court is necessary. Alternatively, the State argues that defendant’s argument has no merit, and should be dismissed.

A criminal defendant is guaranteed the effective assistance of counsel by the Sixth Amendment to the United States Constitution, and Article I, § 13 of the Louisiana Constitution. A claim of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show (1) that his attorney’s performance was deficient, i.e., that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that counsel’s errors or omissions resulted in prejudice so great as to undermine confidence in the outcome. It is not enough for the accused to make allegations of ineffectiveness; the accused must couple these allegations with a specific showing of prejudice. State v. Bell, 02-1127 (La.App. 5 Cir. 2/25/03), 840 So.2d 656, 660.

|7The Sixth Amendment does not guarantee “errorless” counsel, or counsel judged ineffective by hindsight. Rather, a defendant is guaranteed an attorney who is reasonably likely to render effective assistance. State v. LaCaze, 99-0584 (La.1/25/02), 824 So.2d 1063, 1078, cert. den., 537 U.S. 865, 123 S.Ct. 263, 154 L.Ed.2d 110 (2002). Judicial scrutiny must be highly deferential, and claims of ineffective assistance are to be assessed on the facts of the particular case as seen from the counsel’s perspective at the time. The courts, therefore, must indulge a strong presumption that counsel’s conduct falls within the range of reasonable professional assistance. Id.

Generally, the issue of ineffective assistance of counsel is a matter more properly addressed in an application for post-conviction relief filed in the trial court, where a full evidentiary hearing can be conducted. State v. McIntyre, 97-876 (La.App. 5 Cir. 1/27/98), 708 So.2d 1071 at 1075. While there is ample precedent for this court to consider the issue on appeal, we will do so only when the record before us contains sufficient evidence to decide the issue. State v. Peart, 621 So.2d 780, 787 (La.1993); State v. Bell, 02-1127 at 840 So.2d 656 at 660.

In the instant case, it appears that defendant would have this court hear the issue of ineffective assistance of counsel on appeal even when all parties agree that the record is insufficient to consider the matter. That would afford the defendant the evidentiary hearing needed, without the necessity of going through the procedural step of filing an application for post-conviction relief. We are not inclined to change the criteria for considering the matter of ineffective assistance on appeal. Accordingly, we will not remand for an evidentia-ry hearing before hearing the appeal in this matter. The correct avenue for defendant to seek review of this issue is by post-conviction relief.

The remaining two assignments of error alleged by defendant concern the sentence imposed. Defendant argues the sentence is excessive because the trial Iscourt failed to consider the factors enumerated in La.C.Cr.P. article 894.1, and because of defendant’s age, background, and lack of criminal history.

By these assignments, defendant argues that his eighteen-year sentence as a second felony offender is excessive, because the trial court failed to properly employ the provisions of La.C.Cr.P. art. 894.1. He further complains that the trial court failed to consider imposing a sentence below the statutory minimum. Defendant filed a timely motion to reconsider sentence following the habitual offender sentencing, and the motion was denied. Defendant failed to state in his motion specific grounds on which it was based as required by La.C.Cr.P. art 881.1 A(2). The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, limits a defendant to a review of the sentence only for constitutional excessiveness. State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Munoz, 575 So.2d 848, 851 (La.App. 5 Cir.1991), writ denied, 577 So.2d 1009 (La.1991).

La. R.S. 15:529.1(A)(l)(a) provides that a defendant, who is adjudicated a second felony offender under the Louisiana Controlled Dangerous Substance Law, shall be given a sentence not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction in convictions punishable by imprisonment for any term less than life. La. R.S. 40:967(B)(4)(b), as it provided at the time of commission of the crime, gave a sentence range of five to thirty years. Thus, under the sentencing provisions in effect at the time of ^defendant’s offenses, defendant was subject to an enhanced term of fifteen to sixty years.

Effective June 15, 2001, shortly after defendant committed the underlying offenses, 2001 La. Acts, No. 403 lowered the mandatory minimum sentence for distribution of cocaine from five to two years. However, because the maximum sentence of thirty years was not changed, the mandatory minimum sentence for a second offender under the cocaine distribution statute remains fifteen years. Defendant suggests the trial court should have considered the legislative changes as a mitigating factor and imposed a habitual offender sentence of less than fifteen years.

Section 6 of Act 403 provides: “The provisions of this Act shall only have prospective effect.” Additionally, the Louisiana Supreme Court, in State v. Barnes, 02-2059 (La.4/4/03), 845 So.2d 354, 354-355 (per curiam), held:

Under the rule set out in Louisiana jurisprudence, the changes mandated by 2001 La. Acts 403 do not apply to sentences imposed for crimes committed before the act’s effective date. Operation of this rule extends to habitual offender sentences imposed pursuant to R.S. 15:529.1. (case citations omitted)

In State v. Dorthey, 623 So.2d 1276 (La.1993), the Louisiana Supreme Court held that the trial judge is empowered to deviate from a mandatory minimum sentence in a habitual offender proceeding. The court stated:

If ... the trial judge were to find that the punishment mandated by R.S. 15:529.1 makes no “measurable contribution to acceptable goals of punishment” or that the sentence amounted to nothing more than “the purposeful imposition of pain and suffering” and is “grossly out of proportion to the severity of the crime,” he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. Id., 623 So.2d at 1280-1281.

A mandatory' minimum sentence is presumed to be constitutional. The burden is on the defendant to rebut the presumption of constitutionality by showing that he is exceptional. He must show he is a victim of the legislature’s failure to | inassign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525 at 528. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the case before it that would rebut the presumption of constitutionality. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672 at 676. It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory punishments for criminal offenses. Rather, “the sentencing court is only allowed to determine whether the particular offender before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution.” State v. Johnson, supra, 709 So.2d at 677.

Defense counsel made extensive argument at the time of the habitual offender sentencing as to why the trial court should impose the minimum sentence of fifteen years. Counsel did not, however, argue that the mandatory minimum sentence of fifteen years was excessive. Nor did he invoke the holding in Dortkey to request that the court deviate below the statutory minimum sentence.

In assigning reasons for the habitual offender sentence, the judge indicated that she had taken the new legislation into consideration. She also considered several aggravating factors.

Okay. Mr. Converse, I’ve considered your prior criminal conviction, and I’ve also taken into consideration that you had five separate counts of distribution and I noticed they were in a tight proximity, time wise, beginning in April of 2001 and finishing in May — May the 10th
So, I do believe you were dealing drugs in Jefferson Parish. I don’t believe this was an isolated incident. I’m convinced that you were in the business of drug trafficking. I also find one thing that disturbed me the most throughout the trial was that in the tape, you made reference to your people in Texas. So, I therefore feel that you were not only dealing drugs in Jefferson Parish, but you were bringing them in from another state. So, that being what I felt was something that meant something to me, and in spite of your attorney’s argument, that you fell on to hard luck as most people do in the criminal justice system. In But I also take into consideration your youth. I know that I’m aware of the movement in the law of distribution of drugs, and that our legislators are rethinking the time frames that we do incarcerate young people caught up in the disease of drug dealing. So, I look at you as a young person who made some bad choices, but nonetheless, you were dealing drugs in Jefferson Parish, and that’s not good for this Parish. So, although I have the opportunity to give you 60 years in jail, that would be, I think of no good mostly to you. It might be great for the people of Jefferson Parish. So, I take into consideration your youth and that there has to be some time frame short of 60 years that will be a sentence that will A) mean something to you and again, will not throw away your life. Now, the State by filing a multiple bill demands that I give you a minimum of 15 years. I can’t give you any less than that otherwise it would be an illegal sentence. And I’m taking into consideration your multiple counts. I’m taking into consideration the fact that you said you had people in Texas. On the other hand, to your favor, I’m taking into consideration your age. So, I’m going to sentence you to, on the multiple bill, to 18 years in the Department of Corrections which is exactly what I did on the charge, and I’m not going to give you any extra time because I think 18 years is a long time for someone of your age to sit in a penitentiary.

We do not find that the trial judge abused her wide discretion in imposing an eighteen-year habitual offender sentence. The record supports the sentence imposed. Defendant had a history of dealing narcotics, having been previously convicted of distribution of marijuana and cocaine. The trial judge considered the harm to society should she impose a lighter sentence. The term imposed was near the low end of the sentencing range, and the term was the same as defendant’s original sentence on that count. We find no merit in this assignment.

In our review of the record for errors patent pursuant to La.C.Cr.P. art. 920, we find the sentence imposed was illegally lenient. The trial court failed to fully comply with the sentencing provisions of the underlying statute in imposing the habitual offender sentence. The law in effect at the time of the commission of the offense determines the penalty that applies to the convicted defendant. State v. Rivers, 01-1251 (La.App. 5 Cir. 4/10/02), 817 So.2d 216, 221, writ denied, 02-1156 (La.11/22/02), 829 So.2d 1035.

|12At the time of defendant’s offenses, La. R.S. 40:967(B)(4)(b) provided that those convicted of distribution of cocaine “shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of said sentence being without benefit of parole, probation, or suspension of sentence....” The judge ordered that defendant’s habitual offender sentence be served without benefit of probation or suspension of sentence, as provided in La. R.S. 15:529.1(G), but did not impose the additional restriction of parole on the minimum sentence as prescribed by the underlying statute. Defendant’s sentence is, therefore, illegally lenient. Neither defendant nor the State objected below, and the issue is not raised on appeal. However, an illegally lenient sentence can be noticed or recognized by the appellate court sua sponte without the issue being raised by the State in the trial court or on appeal. State v. Williams, 2000-1725 (La.11/29/01), 800 So.2d 790.

Under La. R.S. 15:301.1, a statute’s requirement that a defendant be sentenced without benefit of parole, probation or suspension of sentence is self-activating. Therefore, we find no need to remand the sentence for correction of the sentence to impose the restriction on the right to parole.

In imposing defendant’s original sentences, the trial court gave credit for time already served in the Jefferson Parish Correctional Center, but stated, “You will not be given any credit for the time you served thus far in the Jefferson Parish Correctional Center.” The judge’s order runs contrary to La.C.Cr.P. art. 880, which provides that “[a] defendant shall receive credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence.” Additionally, there is nothing found in La.C.Cr.P. art. 894.2, pertaining to home 1 ^incarceration, to indicate that a defendant is not entitled to credit for time spent in home detention prior to trial.

It is noted that the commitment indicates defendant was given credit “for all time served.” When there is a conflict between the transcript and the minute entry, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). However, because La.C.Cr.P. Article 880 is self-activating, no corrective action is necessary by this court.

For the foregoing reasons the convictions and adjudication as a second felony offender are affirmed. We also affirm all sentences imposed on defendant.

AFFIRMED.

      . When a defendant is sentenced as a habitual offender, ''[t]he penalty increase is computed by reference to the sentencing provisions of the underlying offense. Similarly, the conditions imposed on the sentence are those called for in the reference statute.” State v. Fletcher, 03-60 (La.App. 5 Cir. 4/29/03), 845 So.2d 1213, 1222, quoting State v. Bruins, 407 So.2d 685, 687 (La.1981).