author: hMAX N. TOBIAS, JR., Judge.

text:
    Gloria ROBERTSON v. JEFFERSON PARISH SCHOOL BOARD.
    No. 2002-CA-2298.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Lloyd N. Frischhertz, Jr., Frischhertz and Associates, New Orleans, LA, for Plaintiff/Appellant.

      Kathleen W. Will, Borrello, Olinde & Dubuclet, Metairie, LA, for Defendants/Appellees, Ronald Adams Contractors, Inc. and Liberty Mutual Insurance Company.
    (Court Composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, and Judge MAX N. TOBIAS, JR.).
   hMAX N. TOBIAS, JR., Judge.

The appellant, Gloria Robertson, appeals from a judgment rendered against her with regard to two disputed claims for benefits. For the reasons below, we affirm the judgment of the Office of Workers’ Compensation.

Ms. Robertson injured her lower back on 18 December 1987 while employed by the Jefferson Parish School Board. She first filed a petition for workers’ compensation benefits against the school board and its insurer, Liberty Mutual Insurance Company, in 1990 and, on 6 May 1993, judgment was rendered ordering the payment of medical benefits, past, present, and future. In addition, the trial court found that Ms. Robertson was temporarily and totally disabled (“TTD”) and awarded her weekly benefits until she reached maximum medical improvement. Finally, the trial court ordered that Ms. Robertson’s employment status would not be subject to change until the defendants provided adequate ^rehabilitation or reconditioning programs to her. In 1999, the defendants pursued a change in Ms. Robertson’s medical condition from TTD to supplemental earnings benefits (“SEB”).

On 4 August 2000, the defendants filed a disputed claim seeking court approval for the termination of SEB. Ms. Robertson also filed a disputed claim for compensation seeking to have her disability declared as permanent and total in nature. The dispute was later amended to add a claim for medical benefits, to which the defendants filed a peremptory exception of prescription. The disputes were consolidated for trial.

The disputed claims were tried on 6 May 2002. Judgment was rendered in favor of the defendants on 26 June 2002, holding that Ms. Robertson was not permanently and totally disabled; the reclassification of benefits from TTD to SEB was correct and justified; defendants were entitled to a credit for all payments of TTD benefits made after January 1990 toward the ten-year statutory obligation to pay SEB; and that all claims for medical benefits under the Louisiana Workers’ Compensation Act had prescribed.

In its reasons for judgment, the trial court stated in pertinent part:

Dr. Richard Meyer, Gloria Robertson’s treating physician, opined that Glo-ría Robertson was at sedentary to light work duty as of 1988.
On July 8, 1999, Jefferson Parish School Board changed Gloria Robertson’s classification from Total Temporary Disability to Supplemental Earning Benefits. There was no medical evidence for over ten years that claimant was Total Temporary Disabled. In fact, any medical evidence that existed showed that she was able to work. At worst, Gloria Robertson could have been changed to Supplemental Earning Benefits status in 1988 |3if Jefferson Parish School Board had been more aggressive. But since Jefferson Parish School Board did not, nor attempt to, implement Supplemental Earning Benefits status until 1990, Gloria Robertson gained two (2) years of full rate Total Temporary Disability benefits that could have been reduced.
Gloria Robertson showed no compelling evidence that she was Total Temporary Disabled as of July 3, 1999 or any date thereafter.

Ms. Robertson presents two assignments of error for review. First, she alleges that the trial court erred in finding that the reclassification of her status from TTD to SEB was appropriate and should have awarded attorney’s fees for the unwarranted change in status. Ms. Robertson also argues that the trial court erred in finding that her right to medical benefits has prescribed.

The evidence in the record shows that the defendants began paying TTD benefits of $262.00 per week in 1988 and continued to pay that amount through 2 July 1999. On 3 July 1999, benefits were. changed from TTD to SEB; Ms. Robertson continued to receive SEB at $262.00 per week through 2002. The defendants petitioned the court to terminate SEB based on the credit provided in La. R.S. 23:1223(B) for TTD benefits paid from 1 January 1990 through 2 July 1999.

The 1999 change in benefits was based on a vocational rehabilitation performed by Patricia Knight with 'Jefferson Counseling Services, Inc. in 1994, which records were admitted into evidence. The 15 June 1994 report by Jefferson Counseling provided a list of 41 job openings within the light-duty work restriction assigned by Ms. Robertson’s physician, Dr. Shaekleton. Dr. Shaekleton approved these jobs on 14 June 1994 as being within the light-duty work restrictions assigned by him as of September 1992.

RThe record also demonstrates that Ms. Robertson did not receive any medical treatment for her lower back between 17 December 1992 and 29 January 2001. However, on 25 September 1995, she saw an orthopedic surgeon, Richard Meyer, M.D., for bilateral knee complaints related to osteoarthritis of the knees, unrelated to her work injury. Her first complaint of lower back pain was not asserted until 29 January 2001.

•Dr. Meyer testified in his deposition, which was admitted into evidence, that Ms. Robertson reached maximum medical improvement as of six months after 18 December 1987. He further stated that she had a sedentary to light-duty work capacity, which she would have reached as of June 1988.

Also in evidence is the testimony of Angeliki Kampitis of Cascade Disability, who performed vocational rehabilitation and on 22 April 2002, found several jobs within the sedentary to light-duty work capacity assigned by Dr. Meyer. On 23 April 2002, Dr. Meyer approved these jobs as being with the capacity specified by him in relation to Ms. Robertson’s lower back injury.

As found by the trial court, all the medical evidence presented at trial demonstrates that Ms. Robertson was able to work as of 3 July 1999, the date that the benefits status was changed. Consequently, we find this assignment of error to be without merit. Additionally, because we find that the defendants introduced ample evidence to support the change in benefits status, the trial court correctly denied the claim for attorney’s fees.

In her second assignment of error, Ms. Robertson argues that her claim for medical benefits has not prescribed. La. R.S. 23:1209(C) provides:

C. All claims for medical benefits payable pursuant to R.S. 23:1203 shall be forever barred unless within one year after the accident or death the parties have agreed upon |Rthe payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter. Where such payments have been made in any case, this limitation shall not take effect until the expiration of three years from the time of making the last payment of medical benefits. [Emphasis added.]

The plaintiff argues that the three-year prescriptive period for the payment of medical benefits was interrupted by the subsequent payment of SEB, relying on the First Circuit’s decision in Boquet v. Tetra Technologies, Inc., 2001-0856 (La.App. 1 Cir. 5/10/02), 818 So.2d 941. However, this case was reversed by the Supreme Court in Boquet v. Tetra Technologies, Inc., 2002-1634 (La.2/25/03), 839 So.2d 13, in which the Court stated:

For the reasons that follow, we find that the payment of indemnity benefits does not interrupt prescription on claimant’s claim for medical benefits. We conclude the language of La. R.S. 23:1209 is clear and unambiguous and requires a finding that when medical benefits have been paid, the time limitation for making additional claims for medical benefits is three years from the last payment of medical benefits.

Id. at p. 1, 839 So.2d at 14.

Thus, the trial court was correct when it found that Ms. Robertson’s claim for medical benefits had prescribed. We therefore find this assignment of error to be without merit.

For the reasons above, we affirm the trial court’s judgment. All costs of this appeal are assessed against the appellant.

AFFIRMED.

      . We note a conflict in the two venue statutes applicable herein. First, La. R.S. 13:5104 requires that a suit against a political subdivision of the state, such as a school board, see La. Const. VI, § 44, be brought in the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises. On the other hand, La. R.S. 23:1310.3 permits a workers' compensation claimant to file a claim in the judicial district of the parish of domicile of the worker at the time of the injury, the judicial district of the parish where the injury occurred, or the judicial district of the parish of the principal place of business of the employer.
      Ms. Robertson, an Orleans Parish domiciliary at the time of her injury, filed her claim in Orleans Parish, although pursuant to La. R.S. 13:5104, the claim should have been filed in Jefferson Parish pursuant to La. R.S. 13:5104. Because the school board has not objected to venue, however, we need not address the issue.

      . We take note of the concurrence of Chief Justice Pascal Calogero who observes that “Section 1209(C) needlessly operates in this case to deny a validly injured worker expense reimbursements for medical treatment received after a three-year period where the worker did not, often for commendable reasons, seek treatment from a physician.” However, as noted by the Chief Justice, this is a matter for the legislature to examine and remedy.


source: Caselaw Access Project

author: I, JOAN BERNARD ARMSTRONG, Judge.

license: Public Domain

text:
    George C. DUBOIS v. FAB-CON, INC., and Rene Cross Construction, Inc.
    No. 2002-CA-1731.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Robert C. Clotworthy, Evan T. Caffrey, Phelps, Dunbar, LLP, New Orleans, LA, for DefendanVAppellee.
    James F. Holmes, Scott J. Sonnier, Christovich & Kearney, L.L.P., New Orleans, LA, for Third Party Defendant/Appellant.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD.
   I, JOAN BERNARD ARMSTRONG, Judge.

This is an appeal from a judgment in favor of the indemnitee under an indemnity agreement. We review a grant of summary judgment using a de novo standard of review. Fleming v. Hilton Hotels Corp., 99-1996 (La.App. 4 Cir. 07/12/00), 774 So.2d. 174. Because, as a matter of law, enforcement of the indemnity agreement under the circumstances of this case is forbidden by a federal statute, we will reverse and remand for further proceedings.

Chevron USA, Inc. hired Fab-Con, Inc., Rene Cross Construction, Inc. and Epic Divers, Inc. to raise a partly sunken barge. A Rene Cross crane barge was used for the job. Employees for Fab-Con, Rene Cross and Epic worked on and from the Rene Crosse crane barge. George C. Du-bois was one of the Epic employees assigned to the job.

Mr. Dubois allegedly was injured when he fell through a hatch upon the partly-sunken barge. He sued Fab-Con and Rene Cross for alleged negligence in causing his alleged injury. Mr. Dubois could not sue his employer, Epic, because such an action is barred by the worker’s compensation-type federal statute | ¡.applicable, the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (“LHWCA”). Mr. Dubois’ only remedy against Epic is for statutory compensation benefits. Id.

Rene Cross filed a third-party demand against Epic whereby Rene Cross sought contractual indemnity from Epic with respect to Mr. Dubois’ action. An agreement between Rene Cross and Epic contained an indemnity agreement which provides, in pertinent part:

Epic Driver, Inc. shall defend, indemnify and save harmless, Rene Cross Construction, from, and against any and all loss, damage, expense, injury, liability and claims thereof arising out of, connected with, incident to or directly or indirectly resulting from or related to Epic Divers, Inc/s performance of its work aboard Rene Cross construction’s vessel or in Rene Cross Construction’s permanent yard. Such indemnity shall apply whether or not Rene Cross Construction was or is claimed to be passively, concurrently, or actively negligent and regardless of whether liability without fault, including but not limited to claims for unseaworthiness of any vessel, is imposed or sought to be imposed on Rene Cross Construction.

Epic contends that, under the LHWCA, the indemnity agreement is unenforceable.

A section of the LHWCA provides both that an injured person covered by the LHWCA can sue “a vessel” for allegedly negligently causing him injury and that the “vessel” may not obtain any contractual indemnity from the employer of the covered person:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer \nshall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of he employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in the subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter. (Emphasis added.)

33 U.S.C. § 905(b). The LHWCA defines the term “vessel” broadly:

The term “vessel” means .any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel’s owner, owner pro hac vice, agent, operator, charterer or bare boat charterer, master, officer, or crew member.

33 U.S.C. § 902(21).

Under the scheme of the LHWCA, Mr. Dubois is the “covered person”, Epic is his “employer” and Rene Cross is the “vessel”. Thus, Mr. Dubois does have an action against Rene Cross for alleged negligence (but not strict liability for “unseaworthiness”, etc.), and Rene Cross may not enforce against Epic an agreement for contractual indemnity as to Mr. Dubois’ claim. Presumably, the drafters of the LHWCA believed that, if third party vessels could recover [¿indemnity against employers, then the compensation-exclusive remedy protection of the employer would be eroded.

Rene Cross argues that Mr. Dubois did not sue Rene Cross under the LHWCA, 33 U.S.C. § 905(b), because that statute is not mentioned in Mr. Dubois’ petition. Actually, Mr. Dubois’ petition does not refer to any statute or any legal theory. That is completely proper, because, under our Code of Civil Procedure, the plaintiff need allege only the facts upon which his cause of action rests and need not plead legal theories.

Louisiana’s Code of Civil Procedure establishes a system of fact pleading. As long as the facts constituting a claim are alleged, the party may be granted any relief to which he is entitled under the pleadings and the evidence; the “theory of the case” doctrine, under which a party must select a theory of this case or defense and adhere to it throughout the litigation, has been abolished.

First South Production Credit Ass’n. v. Georgia Pacific, 585 So.2d 545 (La.1991). Under First South, the lack of any mention of the LHWCA in Ms. Dubois’ petition is not dispositive. Moreover, as the LHWCA expressly provides for and, more importantly, governs the cause of action by a “covered person” (Mr. Dubois) against a “vessel” (Rene Cross), e.g., by limiting the action to one for negligence rather than strict liability, any action brought by Mr. Dubois against Rene Cross necessarily is brought under LHWCA, 38 U.S.C. § 905(b).

Rene Cross argues that the LHWCA, 33 U.S.C. § 905(b), does not apply because Mr. Dubois was injured while on the partly-sunken barge rather than being on the Rene Cross crane barge at the time of the alleged injury. The statute contains no requirement for its application that the “covered person” injured actually be on the “vessel” at the time of the injury. Instead, the statute applies when the “covered person” is allegedly injured by the negligence of a “vessel” 33 |5U.S.C. § 905(b). While it may be that the alleged injury occurs while the “covered person” is actually on the “vessel”, the statute, by its own terms, is not limited to such situations. Nor does Howlett v. Birkdale Shipping Co., S.A., 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994), hold to the contrary. In fact, in Howlett, it was undisputed that the “covered person” allegedly was injured while actually on the “vessel”, so there was no issue to be addressed in that case as to whether the statute applied if the alleged injury did not occur on the “vessel”. Moreover, Howlett addressed neither the application of the statute generally, or the prohibition on contractual indemnity in particular, but, rather, addressed a duty to warn. 512 U.S. at 94, 114 S.Ct. 2057. Similarly, neither Ward v. Norfolk Shipbuilding and Drydock Corp., 770 F.Supp. 1118 (E.D.Va.1991), nor Hess v. Port Allen Marine Service, Inc., 624 F.2d 673 (5th Cir.1980), limits the statute’s application to situations where the “covered person” is allegedly injured while on the “vessel” that is sued.

Lastly, Rene Cross argues that Epic failed to expressly plead the statutory bar to indemnity of the LHWCA, 33 U.S.C. § 905(b), as an affirmative defense in its answer to the third party demand. See La.Code Civ. Proc. Art. 1005 (pleading affirmative defenses). Instead, Epic raised the statutory bar in its brief in opposition to Rene Cross’ motion for summary judgment.

It would have been the better practice for Epic to have raised the issue by pleading it as an affirmative defense in its answer, but its failure to do so does not preclude reliance upon the statute. First, Rene Cross made no objection, in the summary judgment proceedings, to the fact that Epic had not raise the statutory bar in its answer.

UThe defendants did not choose at that time to object or respond to the plaintiffs assertions, or to seek to continue the hearing on the motion for summary judgment, or to file affidavits, supplemental affidavits, or a supplemental memorandum in support of their motion for summary judgments. We therefore conclude that he defendants’ arguments regarding the timeliness of he plaintiffs assertion of its alternative theories in its opposition to summary judgment and alleged prejudice to the defendants are without merit.

First South Production Credit Ass’n v. Georgia-Pacific, 585 So.2d 545 (La.1991). See also La.Code Civ. Proc. Art 1154 (issues tried by implied consent treated as if they had been raised in the pleadings). Second, and perhaps more important, we can see no prejudice to Rene Cross, and Rene Cross has alleged none, which was caused by Epic’s failure to plead the statutory bar in its answer. Indeed, Rene Cross prevailed below and on this appeal, Rene Cross has had ample opportunity to argue, and it has argued, the applicability of the statute.

For the foregoing reasons, we reverse the summary judgment below and remand for further proceedings.

REVERSED AND REMANDED


author: I MOAN BERNARD ARMSTRONG, Judge.

text:
    Leonard ROLEY v. EAGLE, INC. (formerly Eagle Asbestos & Packing Company), Combustion Engineering, Inc.; Foster Wheeler Corporation; A.P. Green Industries, Inc.; Armstrong World Industries, Inc., Individually and Successor to Armstrong Cork Company; et al.
    No. 2002-CA-1466.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Scott R. Bickford, John R. Martzell, Christopher H. Sherwood, Martha J. Maher, Tiffany, Chase, Martzell & Bickford, New Orleans, LA, for Calvin Harold Roley and Robert DeWitt Roley, individually and on behalf of Leonard Roley, deceased.
    Leon Gary, Jr., William L. Schuette, Jr., Olivia S. Tomlinson, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, L.L.P. Baton Rouge, LA, and Madeleine Fischer, Jones, Walker, Waechter, Poitev-ent, Carrere & Denegre, L.L.P., New Orleans, LA, for Viacom, Inc.
    Lynn M. Luker, Lynn, Luker & Associates, LLC, New Orleans, LA, for Foster Wheeler, L.L.C.
    Dominic Ovella, Valerie, Schexnayder, Hailey, McNamara, Hall, Larmann & Pa-pale, Metairie, LA, for the Flintkote Company.
    Lawrence G. Pugh, III, Alison S. Bori-son, Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans LA, for Eagle, Inc.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge LEON A. CANNIZZARO JR.
   I MOAN BERNARD ARMSTRONG, Judge.

This is an appeal from a judgment of the trial court dismissing an action under forum non conveniens. Because we find that the trial court’s judgment does not constitute an abuse of discretion, we will affirm.

The plaintiff, Leonard Roley, worked aboard ships of a federal government “reserve fleet” in Mobile, Alabama. While working aboard those ships, he allegedly was exposed to asbestos which allegedly eventually caused him injury. The plaintiff filed suit in Louisiana. The defendants moved for dismissal of the case on grounds of forum non conveniens, pursuant to Article 123(B) of the Code of Civil Procedure, on the ground that Alabama is a much more appropriate forum than Louisiana. The trial court granted the motion to dismiss. The trial court conditioned the dismissal upon the defendants’ agreement that the date of the filing of the plaintiffs action in Louisiana would be considered the filing date for [.¡purposes of prescription/ statute of limitations when the plaintiff re-files his action in Alabama. The plaintiff appeals.

Article 123(B) of the Code of Civil Procedure states:

Upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated upon acts or omissions originating outside the territorial boundaries of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and in the interest of justice, the court may dismiss the suit without prejudice.

The trial court’s decision to dismiss for forum non conveniens will not be reversed absent an abuse of discretion. Cantuba v. American Bureau of Shipping, 2001-1139 (La.App. 4 Cir. 02/13/02), 811 So.2d 50, writ denied, 2002-0743, 2002-0776 (La.05/10/02), 815 So.2d 846, 848.

The plaintiff (now deceased) lived in Alabama his entire life. He never lived, worked or spent time in Louisiana. All of his alleged exposure to asbestos allegedly occurred in Alabama. His medical treatment occurred in Alabama and in nearby Pensacola, Florida. The plaintiff sued thirteen defendants of which only a single one is domiciled in Louisiana. Some of the ships upon which the plaintiff worked in Mobile, Alabama originally were constructed in Louisiana but far more originally were constructed in California and in other states. Based upon all of the foregoing, it is reasonable to conclude that potential witnesses such as the plaintiffs co-workers and family members will be in Alabama and that the medical witnesses will be in Alabama and in nearby Pensacola, Florida. In contrast, there is likely to be little, if any, evidence to be had in Louisiana.

| ¡¡The plaintiff argues that the motion for dismissal for forum non conveniens was not brought timely and that the defendants delayed too long in bringing their motion. However, the record reflects that, considering the procedural history, the need to discover the facts relevant to the forum non conveniens issue, and the trial court’s special procedures for asbestos cases, the defendants did not unreasonably delay the filing of their forum non conveniens motion.

It is uncontested that all of the defendants are subject to suit in Alabama. The trial court has protected the plaintiff from the accrual of prescription during the time period between the dismissal in Louisiana and the re-filing of suit in Alabama. There is no reason that the case cannot be tried in Alabama. This case has very little connection to Louisiana and very substantial connection to Alabama. Based upon the considerations set out in Article 128(B), we cannot say that the trial court abused its discretion in dismissing the case (to be re-filed in Alabama) under forum non conveniens.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: I,WILLIAM H. BYRNES, III, Chief Judge.

text:
    Karen M. BIBBINS, d/b/a Xscape II v. The CITY OF NEW ORLEANS and the New Orleans Alcoholic Beverage Control Board.
    No. 2002-CA-1510.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      Robert G. Harvey, Sr., Maria Del Carmen Calvo, Harvey Jacobson & Glago, New Orleans, LA, for Plaintiff/Appellant.
    Robin M. Shulman, Assistant City Attorney, Albert A. Thibodeaux, Chief Deputy City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, and Judge MICHAEL E. KIRBY).
   I,WILLIAM H. BYRNES, III, Chief Judge.

Karen M. Bibbens d/b/a Xscape II (collectively “Club Xscape”) appeals the trial court’s judgment that affirmed the Alcoholic Beverage Control (“ABC”) Board’s decision that revoked the club’s alcoholic beverage license. We reverse.

Procedural History

On June 27, 2001, the City of New Orleans (“City”) filed a petition with the ABC Board to suspend or revoke the Club Xscape’s permit to sell alcohol. The club is located at 810 North Claiborne Avenue in New Orleans. The City claimed that the Club Xscape violated City Code Section 10-157(5), Section 10-157(19) and Section 10-157(22), i.e., operating the establishment in a manner that permitted disturbance of the peace and/or created or maintained a public nuisance.

After a hearing on February 19, 2002, the ABC Board unanimously voted to revoke the Club Xscape’s alcoholic beverage license. Around February 28, 2002, Club Xscape filed a petition for review in Orleans Civil District Court. On March 4, 2002, Club Xscape obtained a temporary restraining order staying the ABC Board’s decision, which was vacated as premature on March 4, 2002. On March 8, | ?2002, the district court again granted Club Xscape’s temporary restraining order and took the matter under advisement. On March 20, 2002, the district court affirmed the decision of the ABC Board. Club Xscape’s appeal followed.

On appeal, Club Xscape contends that the trial court erred in: (1) failing to sustain the club’s exceptions of vagueness and no cause of action; (2) failing to find that the facts were admitted because the City did not respond to the club’s request for admissions; (3) failing to find a violation of the club’s constitutional right to due process and a fair hearing; (4) failing to exclude hearsay testimony; and (5) finding sufficient evidence.

Exceptions of Vagueness and No Cause of Action

Club Xscape initially argues that the trial court erred in failing to sustain the club’s exceptions of vagueness and no cause of action.

In deciding whether to sustain an exception of no cause of action, the court accepts the facts alleged in the plaintiffs’ petition without reference to any extraneous supporting or controverting evidence and determines whether the 'law affords any relief to the plaintiff if those facts are proved at trial. Robinson v. North American Royalties, Inc., 470 So.2d 112 (La.1985); Haspel v. Davis Milling & Plant ing Co., Ltd. v. Board of Levee Com’rs of Orleans Levee Dist., 98-1664 (La.App. 4 Cir. 3/31/99), 732 So.2d 113, writ denied 99-1248 (La.6/18/99), 745 So.2d 29. For purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Livaccari v. Alden Engineering, Inc., 2000-0856 (La.App. 1 Cir. 12/1/00), 808 So.2d 383; Roberts v. Sewerage and Water Bd. of New Orleans, 92-2048, p. 1 (La.3/21/94); 634 So.2d 341, 342-343. A peremptory exception of no cause of action presents a question of law, and thus appellate review is de novo. Jones v. Tezeno, 99-1693 (La.App. 3 Cir. 3/1/00), 758 So.2d 896; Wirthman-Tag Const. Co., L.L.C. v. Hotard, 2000-2298 (La.App. 4 Cir. 12/19/01), 804 So.2d 856. The burden of proof is on the exceptor. Haspel & Davis Mill. & Planting Co. Ltd. v. Board of Levee Com’rs of Orleans Levee Dist. 95-0233 (La.App. 4 Cir. 9/4/96), 680 So.2d 159, writ denied 96-2430 (La.12/6/96), 684 So.2d 932.

In the present case, Club Xscape maintains that the City’s petition failed to comply with the requirements of Section 93(A) of the Alcoholic Beverage Control Act (La. R.S. 26:1 et seq.), which provides that the petition shall set forth the facts and circumstances of the violation. Xscape also asserts that the petition does not comply with Rule 1(c) of the Rules of Procedure of the ABC Board because the City’s petition is required to contain the factual basis for the alleged violations.

The City asserts that Paragraph VI of its petition provided sufficient facts and circumstances underlying the petition, including the names and address of all the victims and perpetrators, and a narrative detailing each of the events in the attached police reports.

In the present case, Paragraph III, IV, and VI of the petition state:

III.
That the Permittee named herein did commit, or through his agents and/or employees, did allow and/or permit and/or aid in the commission of certain acts on the licensed premises, which acts are in violation of laws of the State of Louisiana and City of New Orleans, all as set forth more fully below.
JJV.
That the permittee, lessee, employee, and/or owner of the premises 810 N. Claiborne Ave., New Orleans, Louisiana 70116 at the alcoholic beverage outlet (hereinafter ABO) known as XSCAPE II, located at 810 N. Claiborne Ave., New Orleans, Louisiana, 70116 did violate the following on or about 2/10/01 and 5/13/01 and at that time:
a) New Orleans City Code Section 10-157(5): Relative to permitting any disturbance of the peace;
b) New Orleans City Code Section 10-157(19): Relative to the existence of a public nuisance.
c) New Orleans City Code Section 10-157(22): Relative to maintaining or creating a nuisance, d) Since the violations of local, state, and/or federal regulations are statutes relating to ABO’S as may be discovered prior to and proven at the hearing this month.
VI.
The factual basis for the alleged violation^) are as stated, but not necessarily limited to, the facts as related in the attached police report(s), or summonses) or other documents of the city, state, or federal government, or their respective agencies, said documents being marked as Exhibit A en globo, attached hereto, and made a part of this petition as if copied in extenso 'within:
1) Police report #B-15587-01, dated 2/10/01;
2) Police report # E-22498-01, dated 5/18/01;
3) Supplemental Police Report #E-224980-01, dated 5/24/01; and
4) Such other reports of activity at or about this ABO location which may be discovered and produced at the hearing.

Paragraph VI infers that the City is not limited to the facts related in the three specific police reports. Paragraph VI also included that: “The factual basis for the alleged violation(s) are as stated, but not necessarily limited to, the facts as related in the attached police report(s), or summons(es) or other documents of the city, state, or federal government, or their respective agencies [emphasis added].” The paragraph added to the list of itemized police reports: “[s]uch other reports of | sactivity at or about this ABO location which may be discovered and produced at the hearing [emphasis added].” However, these catchall phrases are inadequate to show with specificity any additional claims, and they cannot be considered.

In the present case, additional documents of other incidents not attached to the petition should not be reviewed. Only the attached police reports in reference to the incidents of February 10, 2001 and May 13, 2001 are considered. A review of the petition to determine if the City stated a cause of action is limited to allegations concerning those two dates.

The Club Xscape questions that a cause of action exists based on whether the City’s petition stated adequate facts that support a legal conclusion for which the club can be found to have permitted a disturbance of the peace and/or created or maintained a public nuisance.

The trial court may not assume any facts not in the plaintiffs original or amended petitions in determining whether to grant an exception of no cause of action. Simmons v. Templeton, 97-2349, 98-0043 (La.App. 4 Cir. 11/10/99), 723 So.2d 1009, writs denied 98-3050, 3060 (La.2/5/99), 738 So.2d 4, 5. It is insufficient to state a cause of action where the petition simply states legal or factual conclusions without setting forth facts that support the conclusions. Kahn v. Jones, 95-259, p. 7 (La.App. 3 Cir. 11/2/95), 664 So.2d 700, 704; Butler v. Reeder, 93-764, p. 2 (La.App. 5 Cir. 3/16/94), 635 So.2d 1206, 1207.

In Williams v. Galliano, 97-1972 (La.11/14/97), 703 So.2d 1283, a refuse collector was killed when he was struck by another vehicle while making delivery |fiat a landfill. The deceased’s estate brought an action against the operator of the landfill, and in an amended petition, the estate added a claim against the State Department of Environmental Quality (“DEQ”). The DEQ filed peremptory exceptions of prescription and no cause of action. Among other things, the First Circuit found that the allegations were factually sufficient to state a claim against the DEQ, and that the DEQ has a statutory duty to monitor solid waste landfills for compliance with rules and regulations, breach of which may serve as basis for finding of liability. The Louisiana Supreme Court reversed the First Circuit’s finding that the petition stated a cause action against the DEQ and that the State owed a duty to the third party who was injured in that case. The Supreme Court held:

... Even assuming that the State, through the Department of Environmental Quality, has some duty to monitor landfills for compliance with permit regulations, that duty does not extend to third parties (especially where the third party’s injury is unrelated to the regulation of environmental conditions). See Berry v. State, DHHR, 93-2748 (La.5/23/94), 637 So.2d 412. Accordingly, the judgment of the trial court is reversed, and judgment is entered in favor of the State, dismissing it from the suit.

In a wrongful death action, Elliott v. Merritt, 457 So.2d 1216 (La.App. 1 Cir. 1984), writ denied, 461 So.2d 315 (La.1984), the First Circuit held that the petition that alleged only that the owner was the owner of the vehicle and that the owner failed to supervise the driver’s proper operation of the vehicle, failed to state a cause of action for which the owner could be held liable for the driver’s negligence. The First Circuit stated:

In the present case, plaintiffs’ petition contains no factual allegations which would impute the negligence of |7the driver, Merritt, to the owner of the vehicle, Olivier. Plaintiffs allege that Olivier, as owner of the vehicle, failed to supervise the operation of the vehicle. However, plaintiffs made no allegations establishing a legal obligation or duty on Olivier to supervise the driver of its vehicle. No master-servant, parent-child or custodial relationship is alleged, nor does the petition contend that the owner granted authority to use the vehicle when it knew the driver was incapable or incompetent to operate it. Without an allegation creating a legal responsibility or obligation on Olivier, plaintiffs have failed to state a cause of action for which Olivier could be held liable for Merritt’s negligence. Cfi McCoy v. Chambers, 403 So.2d 838 (La. App. 2nd Cir.1981).

Id. at 1218.

In Wimberly v. White, 54 So.2d 869 (La.App. 1 Cir.1951), the First Circuit found that the absence of facts in a petition for revocation of liquor license, could properly be raised by either an exception of vagueness or exception of no cause of action. LSA-R.S. 26:91. The First Circuit reversed the decision of the Board and the district court that revoked a liquor permit because the City’s petition did not meet the Codal requirements. The First Circuit stated:

Our law provides for revocation of a permit only after a hearing, and the hearing is to be held after the permittee is apprised of the facts and circumstances of the violation charged against him or her. Without advance notice of those facts the permittee cannot prepare for' the hearing....

Id., 54 So.2d at 872.

The Third Circuit sustained the permit-tee’s exception of vagueness and dismissed the complainant’s petition at the complainant’s costs.

In the three police reports attached to the petition in the present case, the City failed to state by what acts, the Club Xscape allegedly permitted a disturbance of the peace and/or in any way caused a public nuisance on February 10, 2001 and May 13, 2001. Assuming that all the allegations are true, the petition failed to state | Rhow the Club Xscape was the cause of the disturbance of the peace or the existence of a nuisance because of the attempted murder charge dated February 10, 2001, or the murder charge dated May 13, 2001. The criminal charges were brought against specific individuals who were not agents or employees of the Club Xscape. The connection with the club was the location; however, the criminal acts did not occur on the premises of the club but on the street. One police report stated that: “WARD [the attempted murder victim] did say that he had become involved in an altercation in the bar [Club Xscape] with several unknown Black males which continued outside and became physical.” This reference indicates that any argument or altercation became physical outside of the club. The petition and the attached police reports do not adequately provide facts that would show that the Club Xscape permitted a disturbance of the peace and/or caused a public nuisance as a matter of law. The trial court erred in not sustaining the Club Xscape’s exceptions of vagueness and no cause of action.

Considering that the record is before us, a review of the Club Xscape’s other claims, including consideration of the merits of the case, follows. See Wimberly, id.

Claims of Due Process, Hearsay and Request for Admissions

Club Xscape also maintains that it was denied due process and a fair trial. The club submits that the City did not provide the club with a witness list, and never filed a witness list into the record, thereby not giving notice of the evidence.

Club Xscape further contends that the trial court erred in not excluding the City’s witnesses’ testimony that was hearsay.

Club Xscape also argues that the trial court erred in failing to find that the facts were admitted because the City did not respond to the club’s request for 19admissions. Club Xscape asserts that when a party receives a request for admissions and fails to respond to the request by any means, facts are deemed admitted.

Due Process

An entity or individual engaged in the sale of alcoholic beverages is entitled to the constitutional right to due process of law. Paillot v. Wooton, 559 So.2d 758 (La.1990). Due process requires notice of the evidence. Id., at 761. A hearing is required to be held after the licensee or permittee is appraised of the facts and circumstances of the violation charged. Section 93 of the Alcoholic Beverage Control Act (La. R.S. 26:1 et seq.); Rule 1(c) of the Rules of Procedure of the ABC Board; Wimberly, supra, 54 So.2d at 872.

In the present case, counsel for the Club Xscape objected to the testimony of the City’s witnesses because the City failed to file a witness list. The Board denied the club’s request for a continuance and allowed the City’s witnesses to testify. Because the City failed to provide a witness list, the Club Xscape was deprived of due process and a fair hearing. The trial court abused its discretion in allowing the City’s witnesses to testify without a continuance.

Hearsay

Club Xscape further contends that the trial court erred in not excluding the City’s witnesses’ testimony as hearsay and finding that the City provided sufficient evidence to support the claim that the plaintiffs violated the City Codes.

In Brossette v. Alcoholic Beverage Control Bd., 611 So.2d 1391 (La.1998), the Louisiana Supreme Court reversed the six-month suspension of the licensee’s liquor license. The Supreme Court found that a large amount of the testimony that had been admitted was hearsay because various police officers testified about what they had been told by others. Id., 611 So.2d at 1392.

| inThe Supreme Court noted:

At the hearing, hearsay evidence was admitted, despite the objection of Bros-sette’s attorney. Various police officers testified primarily about what they had been told by others.
Id.
At the Board hearing, the police officers repeated other parties’ complaints to prove that Brossette’s club was the location of criminal activity. Investigative reports by police are subject to the hearsay rule. LSA-C.E. art. 803(8)(b)(i). The Authors’ Comments point out that complaints of crime made to the police are not admissible evidence, being hearsay within hearsay.
Brossette was entitled to a district court trial de novo under LSA-R.S. 33:4788. See P & G Retailers, Inc. v. Wright, 590 So.2d 1272 (La.App. 1st Cir.1991). At that trial, the hearsay evidence at the Board hearing should have been excluded.
Id. at 1394.

In the present case, Lieutenant Tami Brisset and Sergeant Kevin Anderson referred to print-outs from a computer database concerning various incidents. The officers’ references to print-outs was hearsay and should have been excluded. The print-outs were not part of the record. The testimony of all witnesses not based on first-hand knowledge was hearsay and was not competent evidence.

Request for Admissions

Club Escape also argues that the trial court erred in failing to find that the facts were admitted because the City did not respond to the club’s request for admissions. The club noted that: Rule 6(B)(1) of the New Orleans ABC Board provides:

Any party to a revocation and/or suspension hearing may also obtain discovery to requests for admissions of fact, as provided for in the Louisiana Code of Civil Procedure.

In When a party receives a request for admissions and fails to respond to the request by any means, facts are deemed admitted. Tandy v. Pecan Shoppe of Minden, Inc., 34,578 (La.App. 2 Cir. 4/4/01), 785 So.2d 111. Failure to answer a requested admission of fact within the prescribed delay constitutes conclusive admission of those facts. Hoskins v. Caplis, 431 So.2d 846 (La.App. 2 Cir.1983).

The Club’s September 11, 2001 request for admissions included:

Request for Admission # 1:
... [T]hat in the police report B-15587-01 dated February 10, 2001, the activity complained of, more specifically attempted homicide, carrying a firearm, simple criminal damage to property belonging to Jonathan Allen and flight from and flight from [sic] an officer did not occur on the premises at 810 North Claiborne Avenue and involving Karen Bibbins, owner of 810 North Claiborne Avenue.
Request for Admission # 2:
... [T]hat police report E-22498-01, to include its supplement dated May 13, 2001, as it relates to negligent homicide did not take place within the premises at 810 North Claiborne Avenue, nor did it involve its owner, Karen M. Bibbins.
Request for Admission # 8:
... [T]hat the specific violations referred to in Paragraph 4 in its petition a, b, and c do not apply to Karen M. Bibins [sic] or the property located at 810 North Claiborne Avenue.

Because the City failed to answer, the above facts contained in the Club Xscape’s request for admissions should have been deemed as admitted by the City. The trial court erred in failing to accept the admissions as true.

Considering that the City failed to provide a witness list that resulted in the Club Xscape’s being deprived of due process and a fair hearing, and considering the admissions of fact as well as the inadmissible hearsay evidence, there was | ^insufficient evidence to show that the Club Xscape’s permit should be revoked. The City did not carry its burden of proof to show that the Club Xscape created a nuisance or disturbance of the peace by a preponderance of the evidence.

Claim of Insufficiency of Evidence

Regardless of the lack of due process without a witness list from the City, the hearsay testimony, and the admissions, the Club Xscape further maintains that the City did not provide sufficient evidence to support a finding that the Club permitted a disturbance of the peace and/or caused a public nuisance on February 10, and May 13, 2001.

Standard of Review

A liquor licensee or permittee is entitled to a trial de novo on appeal to the district court from the local ABC Board’s decision under La. R.S. 33:4788. The standard of review from the decision of an administrative body is to determine if the administrative hearing was conducted under the procedural formalities of the statute; if the fact-finding of the administrative body was supported by substantial evidence; and if the administrative body’s conclusion was arbitrary or constituted an abuse of discretion. La. R.S. 49:964.

On further review by the state appellate court, the manifestly erroneous or clearly wrong standard applies to the findings of the district court. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. |ia Virgil v. American Guarantee & Liability Ins. Co., 507 So.2d 825 (La.1987). The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Appellate review of questions of law is simply a review of whether the lower court was legally correct or legally incorrect. O’Niell v. Louisiana Power & Light Co., 558 So.2d 1235, 1238 (La.App. 1 Cir.1990). Where the facts are not in dispute, the reviewing court must consider whether the trial court came to the proper legal determination under the undisputed facts. La. C.C.P. art. 2164; Maryland Cas. Co. v. Dixie Ins. Co., 622 So.2d 698 (La.App. 1 Cir.1993), writ denied 629 So.2d 1138 (La.1993); Mallery v. International Harvester Co., 14,823 (La.App. 3 Cir. 11/6/96), 690 So.2d 765, writ denied, 97-1323 (La.9/5/97), 700 So.2d 512.

• In the present case, the City claims that the ABC Board has the authority to have Club Xscape’s liquor license revoked under various ordinances. New Orleans City Code Section 10-157(2) provides in pertinent part:

Any city retail alcohol beverage permit shall be suspended or revoked, or remedial actions as set forth in section 10-160 shall be imposed, for the following reasons ...

In its petition, the City asserted grounds for revocation of Club Xscape’s liquor license under subsections of the New Orleans City Code Section 10-157.

Section 10-157(5) states:

Permitting any disturbance of the peace or obscene, lewd, sexually indecent, immoral or improper conduct on the | ulicensed premises. Improper conduct, as specified in this subsection, shall consist of actions which violate the penal provisions of this code or other penal ordinances of the city. [Emphasis added.]

Section 10-157(19) provides in pertinent part:

Determination of the existence of a public nuisance, as defined in titles 13, 14 and 40 of Louisiana Revised Statutes or any other applicable law, by a court of competent jurisdiction.

Section 10-157(22) states:

Maintaining or creating a nuisance within the meaning of article 667 of the Louisiana Civil Code.

La. C.C. art. 667 provides in part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him....

The City asserts that a public nuisance provides an injury, a certain condition or circumstance(s) generally affecting the public, citing State ex rel. Dema Realty Co. v. McDonald, 168 La. 172, 121 So. 613 (1929). The City avers that drunkenness, fights, disturbances of the peace, etc., constitute a public nuisance because those things affect the public generally, citing State v. Scallan, 201 La. 1026, 10 So.2d 885, 889 (1942). The City submits that fights and numerous violent crimes perpetrated in and around the Club Xscape during operating hours constituted a public nuisance directly affecting the adjacent property owners’ use and enjoyment of their property.

Rule 8 of the Rules of Procedure for the Alcoholic Beverage Control Board provides in pertinent part:

The burden of proof in suspension or revocation proceedings before the Board shall be on the City Attorney and shall be by a preponderance of the evidence. The City Attorney may carry his burden by making a prima facie case....

11fiProof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Lewis v. River City Const, 2001-2100 (La.App. 4 Cir. 4/17/02), 816 So.2d 906.

Club Xscape avers that pursuant to the New Orleans City Code Section 10-157(5), the City’s witnesses were unable to testify that any acts of the club showed that the club allowed on its premises the occurrence of the two incidents provided in the petition.

Testimony of the City’s Witnesses

Edwin Paul Compass, the Chief of Operations for the City of New Orleans, testified that he had no recollection of the events that occurred on February 10, 2001 or May 13, 2001. He did not know anything related to Tyrone Ward, the alleged victim of an attempted homicide that took place on February 10, 2001. He had not reviewed the City’s petition or the attached police reports. He did not know specific dates or times. He said he was giving an overview, not specifics.

Chief Compass said that in four years he had been to the club at least 50 times. He testified that there were at least three murders and five to ten shootings in the vicinity of the club. He explained that he went to the club: “Not just for shootings and murders, but for the traffic congestion problems and just the overall nuisance it would cause with the large crowd spilling out from under the bridge.” The crowd in front of the club overflowed to the 1-10 underpass. He agreed that there were several clubs in the area.

Chief Compass acknowledged that the club’s owner, Ms. Bibbins, did not have the right to go outside of her club and direct traffic. He remarked that: “if the club wasn't open, the cars wouldn’t be there.” He stated that community groups | ^complained about the club, and also “about not seeing a lot of patrols in the area, active patrols.”

Chief Compass spoke with the owner on several occasions. He stated that: “I knew she hired extra security people. I met with the client and she hired extra security people and she attempted to rectify some of the problems.” He said that the crowds were overwhelming outside of the club. When asked if Ms. Bibbins had any paid details there or security guards, Chief Compass replied: “Well, police officers can’t work paid details at alcoholic beverage outlets. She has security guards.”

Chief Compass remembered arguments in the Club Xscape that resulted in violence taking place outside. The Club Xscape notes that the police chief referred to a murder that took place in 1997 at the Club Climax, which was not owned or operated by the Club Xscape at that time. The Club Xscape objected to Chief Compass’ testimony that was outside the scope of the petition and the three attached police reports.

Captain Newel Smith, Officer Commander of the New Orleans Police Department’s First District, had no knowledge of the events that occurred on February 10, 2001. The Club Xscape noted that the City did not question Captain Smith about the events of May 13, 2001.

Captain Newel Smith related that: “There are large numbers of individuals who hang outside of the club, underneath the interstate.” He explained that: “The elevated portion of the interstate is on the neutral ground area of North Claiborne Avenue. Club Xscape is across the street from the neutral ground on the river side of North Claiborne Avenue.” Further, he remarked that: “There are a large |17number of vehicles parked underneath the I — 10, and it’s a continuous movement of individuals.”

Captain Smith stated that the problem with the Club Xscape is due to the fact that the club plays music, people dance, and they serve alcohol. He did not know what kind of music was played, and he agreed that several other clubs in the vicinity played music and served alcohol. He also agreed that other clubs are on the same side of the street as Club Xscape.

Captain Smith related that he agreed with Chief Compass that the Xscape Club should be closed to make it a better and safer community. He said that there were territorial wars in the area, but he could not testify if any of these wars occurred inside the Club Xscape. He had been assigned to the First District for two months before the hearing, and he could not give reasons for the incidents that occurred inside or outside of the Club Xscape on February 10, 2001 or May 13, 2001. Captain Smith’s knowledge of a murder that occurred two days before Mardi Gras on February 10, 2002, was outside of the scope of the City’s petition. His testimony concerning events not occurring on the above two dates in 2001 was inadmissible. His testimony not based on first-hand knowledge was hearsay and should have been excluded.

Lieutenant Tami Brisset had a computer printout concerning incidents that occurred in the 800 and 900 blocks of North Claiborne, Claiborne and Basin, Claiborne and St. Ann, as well as Claiborne and Dumaine. Her testimony showed that the vicinity was a high crime area. She testified about an alleged shooting that put her at risk that occurred between the 800 and 1000 block of Claiborne. She said: “I was involved in a shootout which ended up having four people shot and several guns were confiscated underneath the overpass .... The overpass is an area |iswhere we have a lot of vehicles that park up in there. A lot of those vehicles are for Club Xscape and for the other clubs that are in the area as well. But a good portion of them are for Club Xscape.” According to Lieutenant Brisset, the shooting took place at the corner of Basin and Claiborne in front of or by the Club Treme, but not near the Club Xscape. It was her suggestion that the Club Xscape should be closed down because of the public safety issue and the propensity for violence.

Lieutenant Brisset did not refer to particular incidents except the murder on February 10, 2002, and the incident in which she was involved in the shootout under the overpass that involved the Club Treme. The Club Xscape objected to Lieutenant Brisset’s testimony based on incidents not in the petition. Events other than those in the City’s petition or provided in the police reports concerning February 10, 2001 and May 13, 2001, should not be considered.

Detective Kevin Anderson testified on behalf of the City. The transcript includes the following questioning and reply:

Q. Now, the May 13, 2001 murder of Gregory Enelade, that did not occur at the Club Xscape?
A. No. It occurred in the 800 block of North Claiborne.

Detective Anderson could not say what evidence he had that associated the club with the incident of May 13, 2001 that occurred in the 800 block of Claiborne. Detective Anderson could not state what happened on February 10, 2001. He did not remember the incident. When asked whether the police report indicated that the club and/or Ms. Bibbins were involved in the incident, he reviewed the report. He said that Detectives Mark Amos and Ernest Bickham were there and could answer that question. (However, they did not testify.)

|19Sergeant Kevin Anderson referred to print-outs from a database that listed events that occurred in or around the vicinity of the Club Xscape in the 700 block, 800 block, and the 900 block of North Claiborne during the past five years. He referred to two events on November 17, '2001 and July 22, 2001 that occurred in the Club Xscape. He had knowledge of the murder that occurred on February 10, 2002. Sergeant Anderson said that on April 9, 2000, an altercation began in the Club Xscape; however, the print-out did not reflect that the same individuals inside the club were the ones involved in the alleged shooting outside the club. The events from the print-outs had not occurred on February 10, 2001 or May 13, 2001. Sergeant Anderson would not produce the print-outs but said they were used as investigative tools. He testified from the print-outs because he did not have time to get the police reports. He offered to give the police item numbers but could not say whether the reports mentioned the Club Xscape. References to incidents other than the two in 2001 that were included in the City’s petition and attached police reports should not be considered.

Detective Randy Greenup, a witness for the City, testified that the May 13, 2001, incident occurred underneath the overpass at the 800 block of North Claiborne and then testified that the incident occurred at “913 block of North Claiborne.” Detective Greenup testified that one of the individuals involved in the May 13, 2001 incident said that he recognized another individual from inside the club earlier that night. When asked if he investigated an alleged homicide at 810 North Claiborne Avenue at the Club Xscape, Detective Greenup answered:

Actually, I investigated a homicide which occurred in the 800 block of North Claiborne. It originated in the Club Xscape II. It was an argument that happened inside, later came outside. Everyone thought that the argument was over — several |¡,nindividuals got into an altercation outside underneath the overpass, and that is where the homicide took place....

The police report prepared on the night of the incident showed that the incident occurred in the vicinity of 913 block of North Claiborne. When asked if 913 North Claiborne was actually the location of Jack & George’s, which was across the street on the other side of the interstate a block away, Detective Greenup could not say. Detective Greenup could not testify about the incident of February 10, 2001, because his duties did not concern the arrest resulting from that incident.

The Club Xscape objected, but Father Michael Jacques testified although his name had not been provided in a witness list. He said that he does not drive down St. Phillip to Claiborne when he goes out to dinner from 7:00 p.m. to 10:00 pm. or midnight although he was familiar with the fact that the Club Xscape opens at 11:00 p.m. He testified concerning the murder that occurred at the Club Climax that was not owned or operated by Club Xscape. Because Father Jacques did not testify about the dates set out in the petition, his testimony was inadmissible.

Testimony of the Club Xscape’s Witnesses

Virgie Bibbins, the owner of the Club Xscape, testified that five workers outside provide security at the club. No one is allowed to enter with any type of weapon. The security employees search and check individuals and use scanners to scan individuals before they are allowed to enter. Hats, coats, and jackets are checked. Individuals are searched with their arms up and legs opened. They are frisked from the top of their heads to their feet.

Inside there are three security employees. Customers who are 21 or over must wear bands. Those without bands are not served liquor. If a customer gives a drink to another customer who is not allowed to drink, the security workers escort Lithe two customers outside of the club. Ms. Bibbins is always at the club when it is open. Her two daughters and husband also are there. Ms. Bibbins intimated that she would not allow her daughters to be present if she thought someone could be injured in the club. Prior to the February 19, 2002 hearing, Ms. Bibbins had not received any citations for disturbing the peace or maintaining or creating a public nuisance.

After the murder that occurred on February 10, 2002 (testimony of which was beyond the scope of the petition), as a greater precaution, Ms. Bibbins stated that when the customers are checked, they are required to remove their shoes because a scanner could have missed a gun placed in a pair of Timberland boots, which a lot of customers wore. Each time a customer left the club, the customer would be searched and scanned again before he could re-enter the club. Ms. Bibbins testified that she has no control over individuals outside going under the interstate and getting weapons.

Julie Harvey, a security worker, testified on behalf of Club Xscape. She had worked at the club since Ms. Bibbins opened it. Her testimony confirmed Ms. Bibbens’ testimony concerning the security methods used in the club. When asked by the Board about the February 10, 2002 homicide inside the club, she testified that the gun probably was in a Timberland boot that had escaped door security. Besides the February 10, 2002 shooting, no other incidents like shooting or stabbing had occurred in the club. Where no reference to the February 10, 2002, incident was included in the City’s petition, the Board improperly elicited her testimony concerning this event. That testimony was inadmissible.

Brossette v. Alcoholic Beverage Control Bd.

Ipjn. Brossette v. Alcoholic Beverage Control Bd., supra, two women were involved in an altercation in the club that continued outside in the parking lot. The altercation involved aggravated assault and second degree murder charges. One of the police officers testified that he investigated the alleged assault, where an armed employee chased out of the club a customer who had a fight with his seventeen-year-old daughter. The Louisiana Supreme Court found that this testimony was inadequate to suspend the club’s permit. The Supreme Court stated:

The Alcoholic Beverage Control Law, LSA-R.S. 26:1, et seq., provides for both state and local permits. See LSA-R.S. 26:78. However, permits cannot be suspended except for the causes specified in that Chapter. LSA-R.S. 26:94. Permits may be suspended or revoked for violation of municipal ordinances authorized by that Chapter. LSA-R.S. 26:91(5)(c).
Id., 611 So.2d at 1894.
The Supreme Court held:
There was one murder at the Club and one serious fight. There were numerous arrests in the vicinity, a high crime area. There was no evidence that Brossette committed, attempted, conspired, aided, abetted or encouraged anyone to commit any act adversely affecting the public health, safety or morals. On the contrary, Brossette cooperated with the police, employed police protection for his Club and suffered from its location in a high crime area. Brossette acted as a police informant and tried to protect both his premises and his customers. Crime in the area was not a sufficient basis to close the Club.
Id.

In his concurrence, Judge Shortess stated:

I agree with the majority opinion and further note that the dissenting judge below astutely observed that it was “unfortunate both for Mr. Brossette and the surrounding community that his place of business became the site of criminal activity by third persons; however, that circumstance is not enumerated as a basis | safor revoking a license under the Wine, Beer and Liquor Ordinance.” (Emphasis mine.)
Id. at 1394-1395.

The Supreme Court reversed the suspension of Brossette’s liquor license and assigned costs to the defendant insofar as provided by law.

Based on Brossette, supra, in the present case, the fact that an argument may have occurred in the Club Xscape which became physical outside does not constitute adequate competent evidence that the club or its owner committed or permitted a disturbance of the peace and/or public nuisance. As in Brossette, there were numerous arrests in the vicinity, a high crime area. There was no evidence that Ms. Bibbins committed, attempted, conspired, or abetted anyone to commit any acts adversely affecting the public health, safety or morals.

Just as Brossette cooperated with the police, Ms. Bibbins’ testimony shows that she has five security workers who search, check, and scan the customers. After the murder that occurred on February 10, 2002 (testimony of which was beyond of the scope of the petition), as a greater precaution, Ms. Bibbins stated that when the customers are checked, they are required to remove their shoes because a scanner could have missed a gun placed in a pair of Timberland boots, which a lot of customers wore. Ms. Bibbins has no control over individuals going under the interstate and getting weapons. The Club Xscape has taken precautions to ensure the safety of its patrons. Although Ms. Bibbins did not have the authority to direct traffic, she limited the number of customers inside the club as required. The club cannot be held accountable for the acts of third persons because the club is in the vicinity of criminal activity in a high crime area.

19AIn light of Brossette, the City failed to carry its burden of proof by a preponderance of the evidence that the Club Xscape permitted a disturbance of the peace and/or created a public nuisance on February 10, 2001 and May 13, 2001 in the present case. The trial court was manifestly erroneous and clearly wrong in affirming the ABC Board’s revocation of the club’s liquor permit.

Accordingly, the judgment of the trial court and the order of the Board are reversed; the revocation of the Club Xscape’s liquor permit is vacated; and the complaint is dismissed with costs allocated to the City.

REVERSED.


author: [JOAN BERNARD ARMSTRONG, Judge.

text:
    Eunice P. Davenport Wife/of and Adlai DAVENPORT v. A & H SERVICES CO., INC., Keith Reynaud, Irene Reynaud, ABC Insurance Company, DEF Insurance Company and GHI Insurance Company.
    No. 2002-CA-1662.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.
    Robert A. Barnett, Guste, Barnett & Shushan, L.L.P., New Orleans, LA, for Plaintiff/Appellee.

      Fred Schroeder, Usry, Weeks & Matthews, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE and Judge LEON A. CANNIZZARO JR.).
   [JOAN BERNARD ARMSTRONG, Judge.

This is a property damage case. The trial court found liability of one defendant and awarded damages. Because there is no clear error-manifest wrongness or abuse of discretion below, we will affirm.

Defendant A & H Service Company, Inc. (“A & H”) installed an air conditioner in the plaintiffs’ home. The air conditioner contained a coil manufactured by First Company. The air conditioner leaked and the leak damaged the ceiling of the plaintiffs’ home.

The plaintiffs sued A & H and the First Company. The plaintiffs’ claims included, inter alia, claims for fraud and violation of the Louisiana Unfair and Deceptive Trade Practices Act (“LUDTPA”).

A judge trial was held. Both sides presented expert testimony as well as factual testimony. The defendants argued, inter alia, that the plaintiffs had failed to properly maintain the air conditioner.

The trial court found that the defendants had not defrauded the plaintiffs or violated the LUDTPA. The trial court also found that the plaintiffs were not responsible for the leak. The trial court found that the problem was caused by “poor workmanship” by A & H.

12The trial court found A & H hable and awarded damages of $3,000. The trial court dismissed the claims against First Company.

A & H appeals as to both liability and damages. As to liability, a review of the record as a whole shows that the trial court was reasonable, i.e., not clearly wrong-manifestly erroneous, in finding that poor workmanship of A & H caused the leak and the damage. Therefore, the trial court’s finding as to liability of A & H cannot be disturbed upon appeal. E.g., Bonnette v. Conoco, Inc., 2001-2767 (La.1/28/03), 837 So.2d 1219.

As to the quantum of damages, the trial court as finder of fact has “vast discretion”. E.g., Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). We may not disturb the trial court’s determination of the quantum of damages absent an abuse of that vast discretion. Id.

The record reflects that the air conditioning unit malfunctioned continuously, which resulted in the inconvenience and annoyance of numerous service calls as well as the frequent loss of use of the unit for which the plaintiffs had paid. Also, the property damage was to a residence as opposed to, for example, commercial property, and thus, quite naturally resulted in considerable distress. The trial court, which heard live the testimony of the plaintiffs, was in the best position to determine the proper quantum of damages. Based upon the record of the trial court, we cannot conclude that there was an abuse of discretion.

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.


author: J^EDWIN A. LOMBARD, Judge.

text:
    STATE of Louisiana v. Walter THOMPSON.
    Nos. 2002-KA-1682, 2002-KA-1683, 2002-KA-1684, 2002-KA-1685.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 21, 2003.

      James E. Shields, Jr., Shields & Shields, APLC, Gretna, LA, for Defendant/Appellant.
    Court composed of Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO JR.
   J^EDWIN A. LOMBARD, Judge.

STATEMENT OF CASE

The defendant was charged with various violations of the Louisiana Wildlife and Fisheries laws, as follows, arising out of events on June 6, 1996: taking commercial mullet in closed season in violation of La. R.S. 56:333(B); taking commercial mullet without a permit to do so in violation of La. R.S. 56:333(B)(3); using more than one strike net to take mullet in violation of La. R.S. 56:333(B)(4); and using or possessing commercial gear without a license on the fishing grounds in violation of La. R.S. sesoscA).

Several attorneys represented the defendant during the course of these proceedings that were continued numerous times for various reasons. On August 27, 1996, the defendant was arraigned on the charge in each case. On January 30,1997, the charges were consolidated for purposes of trial. The state did not file a single amended bill of information containing all four charges. On April 16, 1997, the defendant, through attorney Richard V. Kohnke, filed a motion and memorandum of law in support of a jury trial. There is no ruling on the motion in the record, but the court minutes in each case indicate that on October 28, 1997, a | ¡¡jury trial was set for April 7, 1998. On March 30, 1998, attorney Bernard “Ben” J. Ba-gert, Jr. enrolled as counsel of record for the defendant. On April 27, 1998, the court heard pretrial motions to suppress evidence and the defendant’s confession; and on May 27, 1998, the trial court denied the pretrial motions. On June 23, 1998, the defendant through attorney Bagert moved to quash the bills of information. The motion was denied on August 5, 1998. On June 24, 1998, the defendant, through attorney Bagert, orally requested a judge trial.

On May 8, 2000, the defendant, through attorney James E. Shields, Jr., filed a motion and memorandum in support of a jury trial. On May 18, 2000, the court heard the motion. The defendant argued that the previously filed motion for jury trial had not been ruled on; that the second motion for jury trial was filed out of an abundance of caution; and that he was legally entitled to a jury trial due to the potential fines and forfeiture of his vessel and commercial fishing license. The state argued that the defendant through attorney Bagert waived his right to a jury trial. The state also argued that as relative felonies consolidated for trial, the defendant is not necessarily entitled to a jury trial:

Secondly, the State’s position is that as we normally do for a misdemeanor, for multiple misdemeanor charges, we consolidate them for trial as if they were originally filed on the same Bill of Information. When the State does that, that reduces the penalty that the defendant is exposed to. The penalty is as if he was convicted of one charge. Now, I understand that the question in this ease is that there is an exposure to a penalty of over $500.00. I believe that falls into what we call that relative felony situation. However, it’s the State’s position that that does not necessarily entitle the defendant to a jury trial.

Transcript of Hearing, p. 3,11.19-32.

The trial court denied the defendant’s motion based on his “reading of the Articles”. On May 30, 2000, the defendant filed his intention to seek supervisory | ¿review of the trial court’s denial of his motion for a jury trial, and the trial court set the return date as August 14, 2000. The defendant subsequently filed numerous motions for extension of the return date due to difficulty obtaining the transcript of the hearing. On August 22, 2001, this court ultimately denied writs because the application was not timely filed due to gaps in the extensions of time.

On February 7, 2002, the trial court conducted a judge trial after numerous motions by the defendant to continue, and the trial court found the defendant guilty. Defendant waived all sentencing delays, and the court sentenced the defendant as follows: for violation of La. R.S. 56:333(B), 60 days in jail, waived upon payment of $1,500 fine; for violation of La. R.S. 56:333(B)(3), 60 days in jail, waived upon payment of $1,500 fine; for violation of La. R.S. 56:333(B)(4), 60 days in jail, waived upon payment of $1,500 fine; for violation of La. R.S. 56:305(A), 45 days in jail, waived upon payment of $375 fine. All sentences were consecutive, for a total of 225 days in jail, waived upon payment of a $4,875 fine. On February 25, 2002, the defendant moved for an appeal, and this appeal follows.

Although this case involves misdemean- or convictions, the matter is appealable because, as indicated below, it was triable by a jury. Under La. Const. Art. 5, Section 10, the appellate jurisdiction of this court extends to criminal cases that are triable by a jury. See also La.C.Cr.P. art. 912.1.

STATEMENT OF FACT

On June 6, 1996, Louisiana Wildlife and Fisheries agents Brian Clark and Eddie Caido were on boat patrol in Drum Bay within St. Bernard Parish when they observed the defendant operating a large vessel and towing a barge. Agent Clark testified that he and Agent Caido conducted a boat safety inspection and found “a large pile of gill net, webbing, with possibly thousands of pounds of mullet fish _]¿entangled in it.” The mullet season ran from the third Monday in October to the third Monday in January. In June, when the agents found the defendant with the mullet, the season was closed, and only specially permitted people were allowed to take them. The defendant did not have the appropriate licenses to take the mullet or for his gear; in addition, he was found with more than one strike net. The defendant admitted he took mullet on June 6, 1996, but he claimed he caught the fish in federal waters, which was legal, and was traversing Louisiana waters en route to Mississippi to sell the mullet. Agent Clark testified, however, that the location specified by the defendant as the place where the mullet were taken was not in federal waters and was well within the Chandeluer and Breton Sounds in state waters.

The trial court found that the defendant did not have a gear license; that the mullet season was closed; that the defendant took mullet from Louisiana waters; that the defendant did not have a license to take mullet out of season; and that the defendant used two strike nets.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

Assignment Of Error Number 1

The defendant argues that the trial court erred in denying the defendant’s motion for jury trial under La.C.Cr.P. art. 779 because he faced fines of at least |fi$l,000 for each charge, as well as other pecuniary penalties such as the loss of his fishing license. When misdemeanor offenses are charged by separate bills of information and the aggregate penalty of the offenses exceeds six months imprisonment or a fine of $1,000.00, a defendant is entitled to a jury trial. State v. Homung, 620 So.2d 816 (La.1993).

An exception to this rule is found in La.C.Cr.P. art. 493.1, which provides as follows:

Whenever two or more misdemeanors are joined in accordance with Article 493 in the same indictment or information, the maximum aggregate penalty that may be imposed for the misdemeanors shall not exceed imprisonment for more than six months or a fine of more than one thousand dollars, or both.

In State v. Hornung, 613 So.2d 638 (La.App. 5th Cir.1992), the defendant was charged with three misdemeanor offenses in two separate bills of information. Hor-nung, 613 So.2d 638, 640. Although the offenses were consolidated for trial on the State’s motion, the court determined that the defendant was entitled to a jury trial, and Article 493.1 did not apply because at least two of the consolidated offenses had not been joined in the same bill of information. Hornung, 613 So.2d 638, 640. The court concluded that the total potential punishment for the consolidated charges exceeded six months imprisonment and, thus, the defendant was entitled to a jury trial. Homung, 613 So.2d 638, 640. In affirming Hornung, the Louisiana Supreme Court stated:

The decision of whether to charge an accused in one bill of information with multiple offenses, or in separate bills of information for each offense, is within the discretion of the district attorney alone. It is only when the district attorney exercises that discretion and joins the offenses in the same bill of information that the defendant is entitled to the reduced sentencing exposure of Article 493.1.... Likewise, it is only when the district attorney joins the offenses in accordance with Article 493 in the same indictment or information that the state may avoid a jury trial.

Hornung, 620 So.2d at 817.

In State v. Gardner, 458 So.2d 1016 (La.App. 3d Cir.1984), the court held that the defendant was entitled to a jury trial when charged in separate bills of information with resisting an officer and disturbing peace, where the charges were tried together without being formally consolidated:

In the present case, the court tried the defendant on both charges at once. Although there was no mention of consolidation, under such circumstances, the charges are considered as if they were joined and, for the purpose of determining defendant’s right to a jury trial, the possible punishment is the sum of the maximum period of confinement which the court could have imposed with regard to each crime. In this case, the sum of the maximum periods of confinement is greater than six months since the maximum period of confinement for resisting an officer is six months and the maximum period of confinement for disturbing the peace is ninety days. It follows that defendant was entitled to a jury trial.

Gardner, 458 So.2d 1016, 1017.

In State v. Armant, 02-907 (La.App. 5 Cir. 1/28/03), 839 So.2d 271, the defendant was charged in separate bills of information with disturbing the peace and resisting an officer, and the court found that because the aggregate punishment for the two offenses exceeds six months, the defendant had a right to be tried by a jury.

Although the record does not reflect that either party moved to consolidate the two bills of information, as was the case in Homung, the two cases were at all times treated as though they were consolidated. The defendant was arraigned on both cases at the same time, each minute entry contains the numbers of the two cases, the cases were tried together, a single verdict was rendered, and the defendant was sentenced on both cases at the same time. Thus, the charges should be considered consolidated for all practical purposes. Gardner, 458 So.2d at 1017.

Armant, 02-907, p. 8, 839 So.2d at 276

In the instant case, the defendant was charged by separate bills of information with three violations of La. R.S. 56:333 and one violation of La. R.S. |S56:305(A). The minute entries indicate that the cases were consolidated for trial purposes, but there is no evidence in the record that a single amended bill of information was filed joining the offenses. Thus, the exception under article 493.1 does not apply, and the defendant’s penalty exposure was the sum of possible fines, forfeitures, and imprisonment for each charge in each case. At the time of the defendant’s alleged violations, the penalty provisions of La. R.S. 56:333 provided:

F. Any person convicted of any offense involving fisheries laws or regulations shall forfeit any permit or license issued to commercially take mullet and shall be forever barred from receiving any permit or license to commercially take mullet.
I. Except as provided in Subsection F of this Section, a violation of the provisions of this Section or of any of the regulations adopted pursuant thereto shall be a class six violation, R.S. 56:36.

La. R.S. 56:305(A) provides:

A commercial fisherman must possess a commercial gear license indicating that the applicable gear fee has been paid whenever using or possessing on the fishing grounds any gear listed in Subsection B, below.

La. R.S. 56:36 provides:

The following penalties shall be imposed for a class six violation. For each offense, the fine shall be not less than one thousand dollars nor more than two thousand dollars, or imprisonment for not more than one hundred twenty days, or both, and shall include the forfeiture to the commission of anything seized in connection with the violation.

The defendant faced a minimum fíne of $1,000.00 in each case. Consequently, the defendant’s total penalty exposure exceeded $1,000.00 in fines, and the defendant was entitled to a jury trial.

| ^ Assignment Of Error Number 2

The defendant argues that if he validly waived his right to a jury trial, the trial court erred in subsequently not allowing him to withdraw his waiver of jury trial and denying his request for a jury trial under La.C.Cr. P. art. 780. The first issue is whether the defendant waived his right to a jury trial. This court recently reviewed the jurisprudence on this issue in State v. Santee, 2002-0693 (La.App. 4 Cir. 12/4/02), 834 So.2d 533:

A defendant may waive his right to a jury trial and elect to be tried by the judge. La.C.Cr.P. art. 780. Generally, the waiver is to be entered at arraignment. However, the trial judge may accept a waiver of a jury trial at any time prior to the commencement of trial. La.C.Cr.P. art. 780(B). A waiver of trial by jury is valid only if the defendant acted voluntarily and knowingly. State v. Kahey, 436 So.2d 475, 486 (La.1983). The waiver must be express and is never presumed. Kahey, 436 So.2d at 486. The record must show a knowing and intelligent waiver. State v. Williams, 99-223 (La.App. 5 Cir. 6/30/99), 742 So.2d 604, 606.

Santee, 2002-0693, p. 3, 834 So.2d 533, 534-535. This court went on to address the preferred method of documenting a waiver of the right to trial by jury:

While it is preferred for the trial judge to advise the defendant personally on the record of his right to a jury trial and have the defendant waive the right personally on the record, the Louisiana Supreme Court has refused to mandate this method as an absolute rule. Kahey, 436 So.2d at 486. While the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. State v. Frank, 549 So.2d 401 (La.App. 3 Cir.1989).

Santee, 2002-0693, p. 3, 834 So.2d 533, 534-535. This court noted that in State v. Phillips, 365 So.2d 1304 (La.1978), the Louisiana Supreme Court specifically decided that a defense attorney could in fact waive a defendant’s right to a jury trial, stating:

We find no error in the determination of tbe trial judge here that the present defendant gave his informed consent to the waiver made in his presence by his attorney, especially in light of the facts that the judge had informed defendant not once, but twice, of his right to choose between a judge trial and a jury trial, and that the defendant was shown to have had prior experience as an accused in the trial of a criminal prosecution.

Santee, 2002-0693, p. 3, 834 So.2d 633, 534-535 (quoting Phillips, 365 So.2d 1304, 1309).

Where there is no evidence in the record, however, that the defendant specifically waived his right to a jury trial, this court has found that the case must be remanded for an evidentiary hearing to determine whether the defendant knowingly waived this right. State v. Richardson, 2002-2348, p. 1 (La.App. 4 Cir. 2/19/03), 841 So.2d 39, 40. That is, every reasonable presumption against waiver of the right to trial by jury must be indulged. Richardson, 2002-2348, p. 3, 841 So.2d at 41 (citing State v. Page, 541 So.2d 409 (La.App. 4th Cir.1989)). In Richardson, the minute entry showed that the trial court informed the defendant of his right to trial by jury; the docket master and minute entry stated that the defendant requested trial by jury. Richardson, 2002-2348, p. 2, 841 So.2d at 40. No transcript of a waiver of trial by jury could be found. Richardson, 2002-2348, p. 2, 841 So.2d at 40. If the trial court finds that the defendant did not make a valid waiver of his right to a jury trial, the court must set aside his conviction and sentence and grant him a new trial. Richardson, 2002-2348, p. 2, 841 So.2d at 40 (citing State v. Nanlal, 97-0786 (La.9/26/97), 701 So.2d 963). If the evidence shows that the waiver was properly made, the appeal should be transferred back to the appellate court for review of this determination and for review of all assignments of error. Richardson, 2002-2348, p. 2, 841 So.2d at 40.

The court in Richardson cited State v. Page, 541 So.2d 409 (La.App. 4th Cir.1989), in which this court found the defense attorney’s oral waiver insufficient as evidence of waiver of the defendant’s right to a jury trial:

The record is devoid of any indication Page was informed by the trial judge of his right to a jury trial.
The only evidence of his waiver of a jury on the PCP charge is his attorney’s remark that “... as to that count [PCP] we would waive a jury trial and just ask to be tried in front of the judge today.” Counsel’s remark does not reflect he advised or consulted Page prior to waiving the jury or that Page consented to the waiver. The Supreme Court has refused to adopt an absolute rule that no jury waiver can be effective unless the record reflects that the accused was personally informed by the judge of his right to a jury trial. State v. Phillips, 365 So.2d 1304 (La.1978), cert. denied 442 U.S. 919, 99 S.Ct. 2843, 61 L.Ed.2d 287 (1979). Nevertheless, in State v. Wilson, 437 So.2d 272 (La.1983), the Supreme Court said that when a defendant waives such a valuable right, the trial judge should advise the defendant of his right to trial by jury and require the defendant to personally waive the right either in writing or by oral statement in open court on the record. A knowing and intelligent waiver of that right will not be presumed from a silent record. Wilson, supra.

Page, 541 So.2d 409, 410

In the instant case, the minute entries indicate that the defendant was present when attorney Bagert waived his right to a jury trial. This issue was again addressed by the trial court immediately before the trial began when the defendant renewed his objection to the trial court’s denial of his motion for a jury trial:

Also, sir, I call your attention to Article 780 of the Code of Criminal Procedure. Article 780 tells me that I have discretion in subsection C. The defendant may withdraw a waiver of trial by jury unless the Court finds that withdrawal of the waiver would result in interference with | iathe administration of justice, unnecessary delay, unnecessary inconvenience to witnesses, or prejudice to the State. That’s what I have found. You must remember that Mr. Bagert in this case waived the jury sometime back. This matter has gone on over six years now, since 1996.

(Trial Tr. p. 5,11.17-32, p. 6,11. 1-2).

As in Page, the oral statement by the defense attorney in the instant case is the only evidence in the record of the defendant’s waiver. There is no indication that the trial judge advised the defendant of his right to a jury trial. Consequently, we conclude that insufficient evidence exists to support the contention that the defendant waived his constitutionally-protected right to be tried by a jury for the subject offenses.

CONCLUSION

First, the defendant has a right to a jury trial based on the potential fines in the four cases and the lack of evidence in the record that the charges were ever reduced to a single bill of information. Second, insufficient evidence exists in the record that the defendant waived his right to trial by jury. Accordingly, we reverse the convictions and sentences, and remand the case for a new trial.

REVERSED AND REMANDED.

      . The defendant claims the defendant was charged in a five-count bill of information, as follows, for the events of June 6, 1996: Count I, violation of La. R.S. 56:333(B); Count II, violation of La. R.S. 56:333(B)(4); Count III, violation of La. R.S. 56:305(A); Count IV, violation of La. R.S. 56:333(B)(4); and Count V, violation of La. R.S. 56:320(1)(A). The record, however, contains separate bills of information charging slightly different crimes than outlined by the defendant in his brief. The transcript of the May 18, 2000 hearing on the defendant’s motion for a jury trial contains argument by the state that the charges are relative felonies due to the consolidation of the charges for trial as if they were originally filed on the same bill of information.

      . La.C.Cr.P. art. 779 provides:
      A defendant charged with a misdemeanor in which the punishment, as set forth in the statute defining the offense, may be a fine in excess of one thousand dollars or imprisonment for more than six months shall be tried by a jury of six jurors, all of whom must concur to render a verdict.
      B. The defendant charged with any other misdemeanor shall be tried by the court without a jury.

      . La. R.S. 56:333(F) was amended by Act 147 of 2001, and La. R.S. 56:333(1) was repealed in its entirety by Act 147 of 2001. See State v. Weaver, 2001-0467, p. 4 (La.1/15/02), 805 So.2d 166, 169. A defendant is to be tried under the statute in effect at the time of the commission of the crime. Weaver, 2001-0467, p. 4, 805 So.2d 166, 170.

      . Art. 780. Right to waive trial by jury provides:
      A. A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge. At the time of arraignment, the defendant in such cases shall be informed by the court of his right to waive trial by jury.
      B. The defendant shall exercise his right to waive trial by juiy in accordance with the time limits set forth in Article 521, However, with permission of the court, he may exercise his right to waive trial by jury at any time prior to the commencement of trial.
      C.The defendant may withdraw a waiver of trial by jury unless the court finds that withdrawal of the waiver would result in interference with the administration of justice, unnecessary delay, unnecessary inconvenience to witnesses, or prejudice to the state.