text:
    Maria E. PALACIOS, et al. v. LOUISIANA AND DELTA RAILROAD, INC., et al.
    No. 2004-CC-0679.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Palacios, Maria E. et al.; Garcia, Jenny; Garcia, Jose; Palacios, Cynthia; Palacios, Jennifer; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberia, 16th Judicial District Court Div. A, No. 80628; to the Court of Appeal, Third Circuit, No. CW 04-00069.

Denied.

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

KNOLL, J., would grant the writ.


source: Caselaw Access Project

license: Public Domain

text:
    Karen HAYNES v. Larry HAYNES.
    No. 2004-C-0665.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Haynes, Larry; — -Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 01-C-0843-B; to the Court of Appeal, Third Circuit, No. 03-984.

Denied.


text:
    Harold S. MCQUEEN, Jr., et al. v. ANCO INSULATIONS, et al.
    No. 2004-CC-0666.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Murphy Oil USA Inc.; Amax Metals Recovery Inc.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 508-676; to the Court of Appeal, First Circuit, No. 2003-CW-2126.

Denied.


text:
    Ernest HUCKE, III v. NEW ORLEANS GLASS.
    No. 2004-C-0662.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re New Orleans Glass Inc.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 8, No. 02-04019; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1709.

Denied.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Calvin JASON, Sr. and Barbara Jason v. The CITY-PARISH OF EAST BATON ROUGE, d/b/a Emergency Medical Services of Baton Rouge, Infinity Select Insurance Company, Timothy Selton d/b/a Dreams, and the Estate of Ceasar Dixon.
    No. 2004-CC-0664.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Jason, Calvin Sr. et al.; Jason, Barbara; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, Nos. 468,326-N, 469,305-1; to the Court of Appeal, First Circuit, No. 2003 CW 2160.

Denied.


text:
    Sandra ULLRICH v. JEFFERSON PARISH HOSPITAL SERVICE DISTRICT NO. 2, Parish of Jefferson, State of Louisiana d/b/a West Jefferson General Hospital, Richard G. Helman, M.D., Anesthesia and Pain Management, Inc., Susan J. Estrada-Brodman, M.D., and ABC Insurance Company.
    No. 2004-C-0667.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Anesthesia and Pain Management, Inc. et ah; Estrada-Brodman Susan J. M.D.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 580^136; to the Court of Appeal, Fifth Circuit, No. 03-CA-958.

Denied.


text:
    Robert Donald FLOOD, Jr. v. PENDLETON MEMORIAL METHODIST HOSPITAL, et al.
    No. 2004-CC-0668.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Flood, Robert Donald Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2001-16751; to the Court of Appeal, Fourth Circuit, No. 2004-C-0127.

Denied.


text:
    Debra Onofrio, Wife of and John ONOFRIO v. M.E.G.H., INC. d/b/a Maison Esplanade Guest House and Essex Insurance Company.
    No. 2004-CC-0669.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Essex Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 99-13517; to the Court of Appeal, Fourth Circuit, No. 2003-C-2086.

Denied.


text:
    Thomas F. WELCH, et al. v. OAKDALE COMMUNITY HOSPITAL and Dr. Patrick S. Savoy.
    No. 2004-C-0682.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Welch, Thomas F. et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Alen, 33th Judicial District Court Div. B, No. C99083; to the Court of Appeal, Third Circuit, No. 03-1014.

Denied.

JOHNSON, J., would grant the writ.


text:
    Sharon L. HEBERT and Ashley Hebert v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY and Clarendon National Insurance Company.
    No. 2004-C-0683.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Hebert, Sharon L. et al.; Hebert, Ashley; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Pointe Coupee, 18th Judicial District Court Div. A, No. 34814; to the Court of Appeal, First Circuit, No. 2003 CA 0611.

Denied.


text:
    Natashia J. WATSON v. Wilson D. BULLOCH, III, Louisiana Department of Public Safety and Corrections, Office of State Police and Louisiana Automobile Liability Self Insurance Fund.
    No. 2004-C-0691.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Bulloch, Wilson D. Ill et al.; Public Safety & Corr. Dept, of; Louisiana State of; State Police Office Of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 97-13327; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2144.

Denied.

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

KNOLL, J., would grant the writ.


text:
    Scott SANDAGE v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, et al.
    No. 2004-CC-0693.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Furca, Raymond; Tullier, Brad;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 483,878; to the Court of Appeal, First Circuit, No(s). 2003 CA 2763, 2003 CW 2360.

Denied.

KIMBALL, J., recused.

TRAYLOR, J., would grant the writ.


text:
    Roosevelt CLAYTON v. ILLINOIS CENTRAL RAILROAD COMPANY, et als.
    No. 2004-C-0694.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Clayton, Roosevelt; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. I, No. 528-562; to the Court of Appeal, Fifth Circuit, No. 03-CA-972.

Denied.


text:
    LONG’S PREFERRED PRODUCTS, INC. v. Linda Long MINTON.
    No. 2004-C-0748.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Minton, Linda Long; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 204,291; to the Court of Appeal, Third Circuit, No. 03-1020.

Denied.


text:
    Sterlin TRUFANT v. Clyde MOODY, James Miller, Richard Stalder.
    No. 2003-CP-2677.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Trufant, Sterlin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Washington, 22nd Judicial District Court Div. D, No. 84654; to the Court of Appeal, First Circuit, No. 2003 CW 0984.

Denied.

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


text:
    SUCCESSION OF Darryl J. PLAUCHE.
    No. 2004-C-0629.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Brown, Evans Jr.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 589-554; to the Court of Appeal, Fifth Circuit, No. 03-CA-1024.

Denied.

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

WEIMER, J., would grant the writ.


text:
    SUCCESSION OF Eli BROWN, Sr.
    No. 2004-C-0085.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Carrie Brown Singleton, applying for Reconsideration of this Court’s Order dated March 19, 2004; Parish of Franklin, 5th Judicial District Court, Div. C., No. 23,921C; to the Court of Appeal Second Circuit, No. 37,740-CA.

Reconsideration denied.


text:
    Sylvia COLE-GILL, et al. v. Benny MOORE, et al.
    No. 2004-C-0446.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Cole-Gill, Sylvia et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Desoto, 11th Judicial District Court Div. C, No. 61,259; to the Court of Appeal, Second Circuit, No. 37,-976-CA.

Denied.


text:
    Sylvia COLE-GILL, et al. v. Benny MOORE, et al.
    No. 2004-C-0657.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Allstate Land & Timber Co., Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Deso-to, 11th Judicial District Court Div. C, No. 61,259; to the Court of Appeal, Second Circuit, No. 37,976-CA.

Not considered. Not timely filed.


text:
    Darrell BENJAMIN v. ASPLUNDH TREE EXPERT CO.
    No. 2004-C-78.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Darrell Benjamin, applying for Reconsideration to this court’s action dated March 19, 2004, Office of Workers’ Compensation, No. 02-00520, Third Circuit Court of Appeal No. WCA 03-913.

Reconsideration denied.


text:
    Nolan DELCAMBRE and Patricia Delcambre v. BLOOD SYSTEMS, INC.
    No. 2004-C-0561.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Blood Systems Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. K, No. 2000-3251; to the Court of Appeal, Third Circuit, No. CA 03-1130.

Granted.


text:
    Jimmy DAVIS v. AMERICAN NATIONAL PROPERTY & CASUALTY INSURANCE COMPANY.
    No. 2004-C-0621.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Davis, Jimmy; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. B, No. 2001-17384; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1153.

Granted. These cases are remanded to the Court of Appeal to consider the issue of whether prescription was suspended.

JOHNSON, J., recused.

CALOGERO, C.J., would grant and docket.

KIMBALL, J., would grant and docket.


text:
    Rufus DAVIS, Jr. v. AMERICAN NATIONAL GENERAL INSURANCE COMPANY.
    No. 2004-C-0622.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Davis, Rufus Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. I, No. 2001-16800; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0961.

Granted. These cases are remanded to the Court of Appeal to consider the issue of whether prescription was suspended.

JOHNSON, J., recused.

CALOGERO, C.J,, would grant and docket.

KIMBALL, J., would grant and docket.


text:
    STATE ex rel. Leonard CARTER v. STATE of Louisiana.
    No. 2003-KH-1272.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Carter, Leonard; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. J, No. 182,017; to the Court of Appeal,. Second Circuit, No. 37376-KH.

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


text:
    STATE ex rel. Johnny N. DIGGS v. STATE of Louisiana.
    No. 2003-KH-1430.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Diggs, Johnny; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 387-160; to the Court of Appeal, Fourth Circuit, No. 2003-K-0455.

Denied.


text:
    Sabrina CARNEY v. AMERICAN NATIONAL GENERAL INSURANCE COMPANY.
    No. 2004-C-0560.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Carney, Sabrina; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 2001-16807; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0806.

Granted. These cases are remanded to the Court of Appeal to consider the issue of whether prescription was suspended.

JOHNSON, J., recused.

CALOGERO, C.J., would grant and docket.

KIMBALL, J., would grant and docket.


text:
    Debbie CASE, Individually and on Behalf of Her Deceased Daughter, Dawn Folse v. ST. CHARLES PARISH SHERIFF’S OFFICE.
    No. 2004-CC-0617.
    Supreme Court of Louisiana.
    April 30, 2004.
   In re Marino, Johnny Sheriff;' — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 46,561; to the Court of Appeal, Fifth Circuit, No. 04-C-30.

Granted. Remanded to the Court of Appeal for briefing, argument and opinion in light of Clark v. State Farm Mutual Auto. Ins., 00-3010 (La.5/15/01), 785 So.2d 779.

CALOGERO, C.J., would grant and docket.

KIMBALL, J., would deny the writ.

JOHNSON, J., would deny the writ.


text:
    Joseph GALATAS, et al. v. EAGLE, INC., et al.
    No. 2004-0-1132.
    Supreme Court of Louisiana.
    May 7, 2004.
   In re McCarty Corp. et al.; — Defendant; Applying for Motion to Extend Appointment of Judge Pro Tempore, Parish of Orleans, Civil District Court Div. M, No. 2003-9414.

Denied.


text:
    Gheorghe OLAR and Lisa Olar v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2004-CC-1144.
    Supreme Court of Louisiana.
    May 12, 2004.
   In re Louisiana State of et al.; Transportation & Devi.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. C, No. 56521; to the Court of Appeal, First Circuit, No. 2004 CW 1003.

Stay denied. Writ denied.


text:
    Mamta Pani RAO v. Maheswar RAO.
    No. 2004-CC-1163.
    Supreme Court of Louisiana.
    May 13, 2004.
   In re Rao, Mamta Pañi; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 141,912; to the Court of Appeal, First Circuit, No. 2004 CW 1027.

Stay denied; writ denied.


text:
    STATE of Louisiana v. Bobby Ray YOUNG.
    No. 2004-K-0029.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Young, Bobby Ray; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 211534; to the Court of Appeal, Second Circuit, No. 37,673-KA.

Writ granted in part; otherwise denied. Defendant’s sentence is amended to delete the prohibition on parole eligibility. See La. R.S. 40:967(0(2); R.S. 15:529.1(G). Furthermore, given that defendant’s conviction is not for a crime of violence for which a district court may prohibit diminution of sentence for good behavior under R.S. 15:571.3, see La.C.Cr.P. art. 890.1(B), defendant’s sentence is also corrected to delete that prohibition. State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661. The district court is directed to make an entry in the minutes reflecting these changes. In all other respects, the application is denied.


author: WEIMER, J.,

text:
    STATE of Louisiana v. Sterling VENTRIS.
    No. 2003-KK-3289.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Ventris, Sterling; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 02-4316; to the Court of Appeal, Fifth Circuit, No. 03-K-1233.

Remanded to Court of Appeal for consideration in light of this Court’s decision in State v. Umezulike, 03-1404 (La.2/25/04), 866 So.2d 794.

WEIMER, J.,

concurring in part and dissenting in part. I would grant the writ. See State v. Umezulike, 2003-1404, pp. 1-4 (La.2/24/04), 866 So.2d 794, 802-804.


text:
    STATE of Louisiana v. Ryan WATSON.
    No. 2003-KO-1276.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Watson, Ryan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. D, No. 01-5026; to the Court of Appeal, Fifth Circuit, No. 02-KA-1154.

Denied.


text:
    STATE of Louisiana v. Javan MARSHALL and Alfred D. Williams.
    No. 2003-KH-1280.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Marshall, Javan et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 423-496; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1453.

Denied. 930.4(A).


text:
    STATE of Louisiana v. Calvin Ashton THOMAS.
    No. 2003-KO-1323.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Thomas, Calvin Ashton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 208,535; to the Court of Appeal, Second Circuit, No. 36,998-KA.

Denied.


text:
    STATE of Louisiana v. Calvin Ashton THOMAS.
    No. 2003-K-1353.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Thomas, Calvin Ashton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 208,535; to the Court of Appeal, Second Circuit, No. 36,998-KA.

Denied.


text:
    STATE of Louisiana v. Clarence W. MCLAREN, Jr.
    No. 2003-K-1492.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re McLaren, Clarence W. Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 384-112; to the Court of Appeal, Fourth Circuit, No. 2002-KA-2436.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Johna HAYNES.
    No. 2003-KO-1698.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Haynes, Johna; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 422-795; to the Court of Appeal, Fourth Circuit, No. 2002-KA-1648.

Denied.


text:
    STATE of Louisiana v. Thomas SWINNER.
    No. 2003-KO-1717.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Swinner, Thomas; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 312915; to the Court of Appeal, First Circuit, No. 2002 KA 1953.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Edward SIMMONS.
    No. 2003-KO-1718.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Simmons, Edward; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. G, No. 421-053; to the Court of Appeal, Fourth Circuit, No. 2002-KA-0253.

Denied.


text:
    STATE of Louisiana v. Henry BOSS.
    No. 2003-KO-1968.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Boss, Henry; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 99-553; to the Court of Appeal, Fifth Circuit, No. 03-KA-133.

Denied.


text:
    STATE of Louisiana v. Harry J. DUPRE.
    No. 2003-KO-1978.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Dupre, Harry J.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 01-3194; to the Court of Appeal, Fifth Circuit, No. 03-KA-256.

Denied.


text:
    STATE of Louisiana v. Alexander SHEPARD.
    No. 2003-KO-2168.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Shepard, Alexander; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 01-1236; to the Court of Appeal, Fifth Circuit, No. OS-KARS.

Denied.


text:
    STATE of Louisiana v. Barandle WILLIAMS.
    No. 2003-KK-2223.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Williams, Barandle; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. J, No. 225,147; to the Court of Appeal, Second Circuit, No. 37844.

Denied. Moot.


text:
    STATE of Louisiana v. Henry L. FISHER.
    No. 2003-KO-2545.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Fisher, Henry L.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. N, No. 00-1073; to the Court of Appeal, Fifth Circuit, No. 03-KA-326.

Denied.


text:
    STATE of Louisiana v. Rufus Edward WHITE, Jr.
    No. 2003-K-2616.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re White, Rufus Edward Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 213563; to the Court of Appeal, Second Circuit, No. 36,935-KA.

Denied.


text:
    STATE of Louisiana v. Marlon WASHINGTON.
    No. 2003-KO-2652.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Washington, Marlon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. H, No. 213,378; to the Court of Appeal, Second Circuit, No. 37,321-KA.

Denied.

TRAYLOR, J., recused.


text:
    STATE of Louisiana v. Hozey Falicinno IVERSON.
    No. 2003-K-2950.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Iverson, Hozey Falicinno; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 204,080; to the Court of Appeal, Second Circuit, No. 37,369-KA.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Michael CUMMINGS.
    No. 2003-KO-2975.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Cummings, Michael; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, Nos. 04-99-168, 07-01-17; to the Court of Appeal, First Circuit, No. 2003 KA 0008.

Denied.

JOHNSON, J., would grant the writ.


text:
    STATE of Louisiana v. Amanda Gutweiler HYPES.
    No. 2004-KK-0795.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Hypes, Amanda Gutweiler; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. G, No. 265,037; to the Court of Appeal, Third Circuit, No. KW 04-00014.

Denied.


text:
    STATE ex rel. Warren L. JORDAN v. STATE of Louisiana.
    No. 2003-KH-2312.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Jordan, Warren L.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 01-5718; to the Court of Appeal, Fifth Circuit, No. 03-KH-874.

Denied.


text:
    STATE ex rel. Donald STELLY v. STATE of Louisiana.
    No. 2003-KH-1896.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Stelly, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. A, No. 43,118; to the Court of Appeal, Third Circuit, No. 02 01081-KH.

Denied.


text:
    STATE ex rel. Donald PORTER v. STATE of Louisiana.
    No. 2003-KH-1495.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Porter, Donald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. E, No. 01-0327.

Denied.


text:
    STATE ex rel. Michael FRANCOIS v. STATE of Louisiana.
    No. 2003-KH-1649.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Francois, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. G, No. 140603; to the Court of Appeal, First Circuit, No. 2003 KW 0381.

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

WEIMER, J., recused.


text:
    STATE ex rel. James TANNER v. STATE of Louisiana.
    No. 2003-KH-1656.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Tanner, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 8-94-1371; to the Court of Appeal, First Circuit, No. 2003 KW 0665.

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


text:
    STATE ex rel. Darrian FRANKLIN v. STATE of Louisiana.
    No. 2003-KH-1658.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Franklin, Darrian; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 384-064; to the Court of Appeal, Fourth Circuit, No. 98KW-0412.

Denied.


text:
    STATE ex rel. Mickey MCCURTIS v. STATE of Louisiana.
    No. 2003-KH-1661.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re McCurtis, Mickey; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, No. 33,514; to the Court of Appeal, Second Circuit, No. 37499-KH.

Denied.


text:
    STATE ex rel. Arthur FLOT v. STATE of Louisiana.
    No. 2003-KH-1663.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Flot, Arthur; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 382-999; to the Court of Appeal, Fourth Circuit, No. 2003-K-0426.

Denied.


text:
    STATE ex rel. Darryl CASIMIER v. STATE of Louisiana.
    No. 2003-KH-1666.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Casimier, Darryl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 368-931; to the Court of Appeal, Fourth Circuit, No(s). 2003-K-0164, 2003-K-0167.

Denied. State ex rel. Bernard v. Cr.D.C., 94-2247, p. 1 (La.4/28/95), 653 So.2d 1174, 1175.


text:
    STATE ex rel. Kevin WILSON v. STATE of Louisiana.
    No. 2003-KH-1668.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Wilson, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 98-4068; to the Court of Appeal, Fifth Circuit, No. 03-KH-506.

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


text:
    STATE ex rel. Simon C. MONTGOMERY v. STATE of Louisiana.
    No. 2003-KH-1671.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Montgomery, Simon C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. H, No. 95-5903.

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


text:
    STATE ex rel. David M. REESE v. STATE of Louisiana.
    No. 2003-KH-1672.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Reese, David; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. H, No. 97-F1086; to the Court of Appeal, Second Circuit, No. 37232-KH.

Denied.


text:
    STATE ex rel. Joseph SCOTT v. STATE of Louisiana.
    No. 2003-KH-1685.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Scott, Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, Nos. 390-392, 390-425, 397-822, 397-909; to the Court of Appeal, Fourth Circuit, No. 2003-K-0795.

Denied.


text:
    STATE ex rel. Anthony Tracy JONES v. STATE of Louisiana.
    No. 2003-KH-1686.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Jones, Anthony Tracy;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 178,924; to the Court of Appeal, Second Circuit, No. 37368-KH.

Denied.


text:
    STATE ex rel. Charles LAMBERT v. STATE of Louisiana.
    No. 2003-KH-1687.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Lambert, Charles; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 390-583; to the Court of Appeal, Fourth Circuit, No. 2003-K-0569.

Denied.


text:
    STATE ex rel. Stephanie King LETULIER v. STATE of Louisiana.
    No. 2003-KH-1688.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Letulier, Stephanie King; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Martin, 16th Judicial District Court Div. B, No. 96-170,586; to the Court of Appeal, Third Circuit, No. KH 02-01334.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Penns, 99-2916 (La.12/16/99), 758 So.2d 776.


text:
    STATE ex rel. Terry L. FLANAGAN v. STATE of Louisiana.
    No. 2003-KH-1689.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Flanagan, Terry L.; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bienville, 2nd Judicial District Court Div. B, No. 32,186; to the Court of Appeal, Second Circuit, No(s). 35402-KH, 35,651-KH, 35,670-KA, 37552-KH.

Denied.


text:
    STATE ex rel. James BUNCH v. STATE of Louisiana.
    No. 2003-KH-1694.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Bunch, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 286-606.

Denied.


text:
    STATE ex rel. Fredrick SANDERS, aka Jerome Williams v. STATE of Louisiana.
    No. 2003-KH-1695.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Sanders, Fredrick a/k/a; Williams, Jerome; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 01-F1625; to the Court of Appeal, Second Circuit, No. 36,941-KA.

Denied.


text:
    STATE ex rel. Mark SMITH v. STATE of Louisiana.
    No. 2003-KH-1355.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Smith, Mark; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. B, No. 5-75.

Denied.


text:
    STATE ex rel. Marvin WILEY v. STATE of Louisiana.
    No. 2003-KH-1451.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Wiley, Marvin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, Nos. 331-135, 312-770; to the Court of Appeal, First Circuit, No. 2002 KW 0241.

Denied.


text:
    STATE ex rel. James STEIB v. STATE of Louisiana.
    No. 2003-KH-1452.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Steib, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. K, No. 01-1814.

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


text:
    STATE ex rel. Larry TENNART v. STATE of Louisiana.
    No. 2003-KH-1454.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Tennart, Larry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 6-97-777; to the Court of Appeal, First Circuit, No. 2003 KW 0333.

Denied.


text:
    STATE ex rel. Darold HINES v. STATE of Louisiana.
    No. 2003-KH-1455.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Hines, Darold; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Iberville, 18th Judicial District Court Div. D, No. 1630-97; to the Court of Appeal, First Circuit, No. 2003-KW-0342.

Denied.


text:
    STATE ex rel. Allen BLOUNT v. STATE of Louisiana.
    No. 2003-KH-1491.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Blount, Allen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. I, No. 00-2401; to the Court of Appeal, Fifth Circuit, No. 03-KH-373.

Denied.


text:
    STATE ex rel. Michael M. SHELTON v. STATE of Louisiana.
    No. 2003-KH-1301.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Shelton, Michael M.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. A, No. 415-294; to the Court of Appeal, Fourth Circuit, No. 2003-K-0115.

Denied.


text:
    STATE ex rel. Henry QUINN v. STATE of Louisiana.
    No. 2003-KH-1321.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Quinn, Henry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, No. 396-820; to the Court of Appeal, Fourth Circuit, No. 2003-K-0462.

Denied.


text:
    STATE ex rel. Kenneth KEELEN v. STATE of Louisiana.
    No. 2003-KH-0862.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Keelen, Kenneth; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 01-0043; to the Court of Appeal, Fifth Circuit, No. 03-KH-234.

Denied.


text:
    STATE ex rel. Quintlan SMITH v. STATE of Louisiana.
    No. 2003-KH-0913.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Smith, Quintlan; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Webster, 26th Judicial District Court Div. D, No. 60,457; to the Court of Appeal, Second Circuit, No. 37253-KH.

Denied.


text:
    STATE ex rel. Oliver FRANCIS v. STATE of Louisiana.
    No. 2003-KH-0917.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Francis, Oliver; — -Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 260-679.

Denied. State v. McKinney, 406 So.2d 160, 161 (La.1981).


text:
    STATE ex rel. Reginald WARREN v. STATE of Louisiana.
    No. 2003-KH-0940.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Warren, Reginald; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. K, No. 4-98-227; to the Court of Appeal, First Circuit, No. 2003-KW-0057.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Lonzette K. GADDIS v. STATE of Louisiana.
    No. 2003-KH-1275.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Gaddis, Lonzette; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. G, No. 209,037; to the Court of Appeal, Second Circuit, No. 36,661.

Denied.


text:
    STATE ex rel. Brian K. WILLIAMS v. STATE of Louisiana.
    No. 2004-KH-1003.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Williams, Brian K.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Magistrate Orleans Criminal Court, No. 433-065.

Granted for the sole purpose of transferring the pleading to the district court for its consideration. The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Kelly D. ADAMS v. STATE of Louisiana.
    No. 2003-KH-0952.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Adams, Kelly D.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vernon, 30th Judicial District Court Div. B, No. 54169; to the Court of Appeal, Third Circuit, No. CW 02-01442.

Writ granted in part; otherwise denied. The district attorney is ordered to provide relator with an estimate of the costs of reproducing public records relator has requested and to which relator is entitled. La. Const. art. XII, Section 3; R.S. 44:31; R.S. 44:31.1; State ex rel. Leonard v. State, 96-1889 (La.6/13/97), 695 So.2d 1325; State ex rel. Level v. State, 99-2266 (La.12/17/99), 751 So.2d 869; Range v. Moreau, 96-1607 (La.9/3/96), 678 So.2d 537; see also Landis v. Moreau, 00-1157, p. 6 (La.2/21/01), 779 So.2d 691, 695.

KIMBALL, J., would grant and docket.

VICTORY, J., would grant and docket.


text:
    Teilla L. NOEL v. HOME HEALTH CARE 2000, INC.
    No. 2004-C-0854.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Home Health Care 2000 Inc.;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation, Dist. # 3, No. 01-06726; to the Court of Appeal, Third Circuit, No. 03-1280.

Denied.


text:
    In re ASBESTOS PLAINTIFFS v. BORDELON, et al.
    No. 2004-CC-0855.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Territo, Peter; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 91-18397; to the Court of Appeal, Fourth Circuit, No. 2004-C-337.

Denied.

TRAYLOR, J., would grant the writ.


text:
    Vernon J. TATUM, Jr. v. Dale N. ATKINS, et al., Deputy Clerks, and ABC Insurance Company.
    No. 2004-C-0858.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Tatum, Vernon J. Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. G, No. 2002-13460; to the Court of Appeal, Fourth Circuit, No. 2003-CA-1730.

Denied.


text:
    Jennifer BRYAN, et al. v. RYAN’S FAMILY STEAK HOUSES, TLC, INC.
    No. 2004-C-0867.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Ryan’s Family Steak Houses TLC Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rap-ides, Alexandria City Court, No. 96628; to the Court of Appeal, Third Circuit, No. OB-1494.

Denied.


text:
    Kenneth DODGE v. S & B LOGGING.
    No. 2004-C-0870.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Dodge, Kenneth; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 2, No. 02-01580; to the Court of Appeal, Third Circuit, No. 03-1355.

Denied.

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


text:
    Teilla L. NOEL v. HOME HEALTH CARE 2000, INC.
    No. 2004-C-0871.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Noel, Teilla L.; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation, District # 3, No. 01-06726; to the Court of Appeal, Third Circuit, No. 03-1280.

Denied.


text:
    Rebecca E. PETERSON v. John H. PETERSON.
    No. 2004-CC-0873.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Peterson, John H.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, East Baton Rouge Family Court Parish, No. 115,360; to the Court of Appeal, First Circuit, No. 2003 CW 2536.

Denied.


text:
    Gloria MORE v. Donald Steve BURNS and the Succession of Faye Z. Burns.
    No. 2004-C-0874.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Moore, Gloria; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Vernon, 30th Judicial District Court Div. B, No. 69,164; to the Court of Appeal, Third Circuit, No. 03-1199.

Denied.


text:
    BYLES WELDING AND TRACTOR, INC. v. John Clifton CONINE.
    No. 2004-C-0876.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Conine, John Clifton; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Natchitoches, 10th Judicial District Court Div. B, No. 73,367; to the Court of Appeal, Third Circuit, No. 03-1062.

Denied.

KNOLL, J., would grant the writ.


text:
    Emmaline WALLACE v. RED RIVER CENTER CORPORATION.
    No. 2004-C-0836.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Wallace, Emmaline; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. B, No. 455,170; to the Court of Appeal, Second Circuit, No. 38,257-CA.

Denied.

JOHNSON, J., would grant the writ.


text:
    Walter NEWSON v. RICHARD SPURGEON MASONRY.
    No. 2004-C-0839.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Richard Spurgeon Masonry; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Comp. Dist. 2, No. 02-04388; to the Court of Appeal, Third Circuit, No. WCA 03-1367.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Marlon SIMMONS et al. v. CTL DISTRIBUTION and Darren Tomas.
    No. 2004-C-0743.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re CTL Distribution et ah; Tomas, Darren; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. D, No. 28,335; to the Court of Appeal, Fifth Circuit, No. 03-CA-1801.

Denied.

VICTORY, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    John HEBERT and Klea Hebert v. RAPIDES PARISH POLICE JURY, et al.
    No. 2004-CC-0749.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Transportation & Development Dept, of; State of Louisiana; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 184,-823-F; to the Court of Appeal, Third Circuit, No. CW 03-01759.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Marlon SIMMONS, et al. v. CTL DISTRIBUTION and Darren Tomas.
    No. 2004-C-0764.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Simmons, Marlon et al.; Simmons, Dolores; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. D, No. 28,335; to the Court of Appeal, Fifth Circuit, No. 03-CA-1301.

Denied.


text:
    Clyde S. SIMS and Charlotte Sims v. SAFEWAY INSURANCE COMPANY and Blaine L. Newton.
    No. 2004-C-0765.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Sims, Clyde S. et al.; Sims, Charlotte; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. E, No. 92,046; to the Court of Appeal, First Circuit, No. 2003 CA 0050.

Denied.

JOHNSON, J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    Clementine FAIRROW, et al. v. James E. MARVES, et al.
    No. 2004-C-0237.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Marves, James E., et al.; — Defendants); Applying for Reconsideration of an Order of this Court dated March 26, 2004, Parish of Rapides, 9th Judicial District Court No. 196-834, Div. F to the Court of Appeal, Third Circuit, Nos. 03-169, 03-837.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    Edward DANIEL, Jr. v. NEW ORLEANS PUBLIC SERVICE INC., et al.
    No. 2004-C-0422.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Daniels, Edward Jr.; — Plaintiff(s); Applying for Reconsideration of this Court’s order dated April 2, 2004; Parish of Orleans, Civil District Court Div. G, No. 87-5971; to the Court of Appeal, Fourth Circuit, No. 2002-CA-2427.

Reconsideration denied.


text:
    Kevin WELLS v. Pamela JOHNSON, Judge of the Juvenile Court.
    No. 2004-C-0567.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Wells, Kevin; Applying for Reconsideration of this Court’s order dated March 26, 2004; Parish of East Baton Rouge, 19th Judicial District Court, Div. N, No. 499,190; to the Court of Appeal, First Circuit, No. 2003-CA-0278.

Reconsideration denied.


text:
    Patrick BARTHEL v. Daniel E. BECNEL,III, et al.
    No. 2004-CC-0837.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Barthel, Patrick; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2002-275; to the Court of Appeal, Fourth Circuit, No. 2004-C-0098.

Not considered. Not timely filed. See Morris v. Stueben, 01-0137 (La. 3/16/01), 781 So.2d 1220.


text:
    Robin MAINIERI v. HOTEL MAISON PIERRE LAFITTE, LTD.
    No. 2004-CC-0886.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Hotel Maison Pierre Lafitte Ltd; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, First City Court, No. 99-58852; to the Court of Appeal, Fourth Circuit, No. 2003-C-2129.

Not considered; not timely filed. See Supreme Court Rule X, Section 5.


text:
    HOUSING AUTHORITY OF NEW ORLEANS v. Bobby BROUSSARD.
    No. 2004-CC-0020.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Broussard, Bobby; Applying for Reconsideration of this Court’s order dated March 12, 2004; Office of Workers’ Compensation District 7, Nos. 01-00009, 01-02080; to the Court of Appeal, Fifth Circuit, No. 08-C-1283.

Not considered. See Supreme Court Rule IX, Section 6.


text:
    Sharon DAILEY v. Helen TRAVIS, et al.
    No. 2004-CC-0744.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Travis, Helen et al.; Jones, Johnnie; Robinson, Inez; Public Safety & Corr. Dept, of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Iberville, 18th Judicial District Court Div. C, No. 55628; to the Court of Appeal, First Circuit, No. 2002 CW 2051.

Granted.


text:
    Peter V. DRISCOLL, M.D. v. Fred J. STUCKER, M.D., et al.
    No. 2004-C-0589.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Stacker, Fred J. M.D. et al.; Board of Supervisors of; Louisiana State University and Agriculture and Mechanical College; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. K, No. 465,747; to the Court of Appeal, Second Circuit, No. 38,133-CA.

Granted.


text:
    Brenda Sue CARTER, et ux. v. Gary Stephen HAYGOOD, DDS, et al.
    No. 2004-C-0646.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Carter, Brenda et al.; Carter, Charles; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. A, No. 35-998; to the Court of Appeal, Third Circuit, No. 03-791.

Granted.


text:
    In re ASBESTOS PLAINTIFFS v. BORDELON, et al.
    No. 2004-CC-0850.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Hopeman Brothers Inc. et ah; Wayne Manufacturing Co.; Liberty Mutual Ins. Co.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. 0, No. 91-18397; to the Court of Appeal, Fourth Circuit, No. 2004-C-0337.

Denied.

TRAYLOR, J., would grant the writ.


text:
    In re MEDICAL REVIEW PANEL FOR the CLAIM OF Janice BATISTE on Behalf of Kenneth BATISTE.
    No. 2004-CC-0829.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Cerniglia, Frank R. M.D.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, Nos. 02-519, 02-04223; to the Court of Appeal, Fourth Circuit, No. 2003-C-1733.

Denied.

TRAYLOR, J., would grant the writ.


text:
    In re Edgar MCLARRIN and Charlotte McLarrin Applying for Private Adoption of E.K.E. and O.L.G.
    No. 2004-C-0595.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re McLarrin, Joey; — Other; Applying for Reconsideration of this Court’s action dated March 24, 2004, Parish of More-house, 4th Judicial District Court, Div. D, No. 589; to the Court of Appeal, Second Circuit, No. 38,616-JAC.

Denied.


text:
    COLE, EVANS & PETERSON v. T.F. MANAGEMENT, INC., et al. Cole, Evans & Peterson v. Maurice Riemer Calhoun, Jr., et al. And other Consolidated Cases.
    No. 2004-CC-0853.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re T.F. Management Inc. et al.; Calhoun, Maurice Riemer Jr.; Calhoun Partners LLC; Howell, James C. Jr.; B.L. of La. Inc.; Mansfield Elderly Housing Association; Calhoun Builders Inc.; Hibernia National Bank; Sabine State Bank & Trust Co.; Community Bank of Louisiana; Peoples State Bank; Progressive National Bank of De Soto Parish; Edward D. Jones & Co. L.P.; Jones, Edward D. & Co. L.P.; Bank One N.A.; Whitney National Bank; Regions Bank; Amsouth Bank; — Defendants); Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. B, Nos. 61493, 61494, 61495, 61496, 61497, 61498, 61499; to the Court of Appeal, Second Circuit, No(s). 38702-CW, 38703-CW, 38704-CW, 38705-CW, 38706-CW, 38707-CW, 38708-CW.

Denied.


text:
    Linda BOUDREAUX and Vernon Boudreaux v. USAA CASUALTY INSURANCE COMPANY.
    No. 2004-CC-0820.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re USAA Casualty Ins. Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 589-243; to the Court of Appeal, Fifth Circuit, No. 04-C-152.

Denied.


text:
    ALBANO CLEANERS, INC. and ACI, LLC v. G. Mike SMITH, Sara Smith and M & S Investments, LLC.
    No. 2004-CC-0701.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re ACI, LLC; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 2002-13410; to the Court of Appeal, First Circuit, No. 2003 CW 2440.

Denied.

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

KNOLL, J., would grant the writ.

WEIMER, J., would grant the writ.


text:
    Emma TURNER v. MICHAEL LYONS, ABC Insurance Company, and the City of New Orleans.
    No. 2004-C-0741.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Turner, Emma et ah; Turner, Isaiah; Turner, Joyce; Tate, Robert; Turner, Milton; Turner, Ruby; Turner, Arthur; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, No. 95-14381; to the Court of Appeal, Fourth Circuit, No. 2003-CA-0186.

Denied.


text:
    Rebecca A. MICHEL v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. And all other Consolidated Cases.
    No. 2004-CC-0816.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Louisiana State of et al.; Transportation & Devi. Dept, of;- — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. A, Nos. 132,512, 135,-484, 135,530, 135,560, 138,578, 138,874, 138,876, 139,101, 139,331, 139,610, 132,511, 138,139, 138,577, 138,877, 138,878, 133,162, 133,516, 137,383, 137,384, 138,575, 138,875, 139,545, 139,546, 139,674, 132,289, 133,793, 135,485, 135,771, 135,918, 138,576, 132,510, 133,163, 133,515, 133,794, 133,797, 135,483, 137,722, 138,573, 138,574, 139,330; to the Court of Appeal, First Circuit, No. 2003 CW 2356.

Granted. The case is remanded to the court of appeal to reconcile its ruling in this case with its ruling in LeBeouf v. State, through the Department of Transportation and Development, 03-CW-1071 (La.App. 1st Cir.11/22/03), writ denied, 03-2955 (La.1/9/04), 862 So.2d 992.


text:
    Thomas Karrell ARDOIN v. The STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION & DEVELOPMENT.
    No. 2004-C-0840.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re State of Louisiana et al.; Transportation & Development, Department of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 61,887-B; to the Court of Appeal, Third Circuit, No. 03-1458.

Denied.


text:
    Harry J. MOREL, Jr., Individually, and as Legal and Natural Father of Mary Elizabeth Morel and Mary Elizabeth Morel v. Marc A. ORGERA, Safeco National Insurance Company, Cox Cable Company, ABC Insurance Company and State Farm Mutual Automobile Insurance Company.
    No. 2004-CC-0845.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Cox Communications Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 517-980; to the Court of Appeal, Fifth Circuit, No. 04-C-112.

Denied.

VICTORY, J., would grant the writ.

TRAYLOR, J., would grant the writ.


text:
    Shane H. COLLINS, et al. v. MIKE’S TRUCKING COMPANY, INC., Star Insurance Company, Dwight L. Daigle and Nutmeg Insurance Company. Richard Andrew Jackson v. Mike’s Trucking Company, Inc., Star Insurance Company, Dwight L. Daigle and Nutmeg Insurance Company.
    No. 2004-CC-0809.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Star Insurance Co.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 473,-861, 479,658; to the Court of Appeal, First Circuit, No. 2003 CW 1949.

Denied. Premature.


text:
    Janice TRAHAN, Individually and as Natural Tutrix for her Minor Children, Justin Wade Roberts and Jeffrey John Trahan v. Richard J. SCHMIDT, et al.
    No. 2004-CC-0817.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Trahan, Janice et al.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. I, No. 95-3201; to the Court of Appeal, Third Circuit, No. CW 03-01765.

Denied.


text:
    Dennis JULIEN, Sr., Individually and in his Capacity as the Natural Tutor of Minor Children, Dennis Julien, Jr., and Alyria Julien v. ALLSTATE INSURANCE COMPANY, Kenny Acosta, George Acosta, and Triple Farms.
    No. 2004-C-0789.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Julien, Dennis Sr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. H, No. 466,199; to the Court of Appeal, First Circuit, No. 2003 CA 0604.

Denied.


text:
    Patrick R. CHERON v. LCS CORRECTIONS SERVICES, INC., and the State of Louisiana Through the Department of Public Safety and Corrections and Warden Gary Copes.
    No. 2004-CC-0703.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re Louisiana State of through; Department of Public Safety and Corrections;. — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. 486-044; to the Court of Appeal, First Circuit, No. 2002 CW 1049 R2.

Granted.


text:
    CHEVRON USA, INC. v. VERMILION PARISH SCHOOL BOARD. Texaco Inc.; Texaco Exploration & Production, Inc. v. Vermilion Parish School Board. Amerada Hess Corp. v. Vermilion Parish School Board. Union Oil Company of California v. Vermilion Parish School Board. Mobile Oil Corp., et al. v. Vermilion Parish School Board. Exxon Mobil Corporation v. Marshall W. Guidry. Exxon Mobil Corporation v. Vermilion Parish School Board.
    No. 2004-CQ-0810.
    Supreme Court of Louisiana.
    May 14, 2004.
   In re United States Court of Appeals Fifth Circuit; — Other; Applying for Certified Question United States Court of Appeals for the Fifth Circuit, No. 03-30602, 364 F.3d 607.

, . , Certification denied.


author: |tEZELL, Judge.

text:
    Eleanor Haik Etie BAZER, et al. v. HONDA MOTOR CO., LTD, et al.
    No. CA 03-1373.
    Court of Appeal of Louisiana, Third Circuit.
    March 31, 2004.
    Rehearing Denied May 26, 2004.
    Lawrence J. Duplass, Joseph George Glass, Guyton Henri Valdin, Jr., Duplass, Zwain, Et AL, Metairie, LA, Douglas Alan Thomas, Attorney at Law, Birmingham, AL, for Defendants/Appellees American Honda Motor Co., Inc., Honda R & D Co., LTD, Honda Motor Co., LTD.
    Joseph R. Joy, III, Joseph Joy & Assoc., Lafayette, LA, Morris Michael Haik, Jr., Attorney at Law, New Iberia, LA, Steve A. Bryant, Attorney at Law, Houston, TX, for Plaintiff/Appellee Eleanor Haik Etie Bazer.
    Angela P. McCulloch, Richard Nereaux Burtt, Baton Rouge, LA, for Interve-nor/Appellant Office of Group Benefits, State of Louisiana.
    Court composed of GLENN B. GREMILLION, BILLY HOWARD EZELL, and ARTHUR J. PLANCHARD, Judges.

       Honorable Arthur J. Planchará, Retired, participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   |tEZELL, Judge.

The Office of Group Benefits appeals a judgment denying its motion for new trial which was filed in response to the trial court’s dismissal of its intervention claim in a tort suit filed on behalf of its insured. Its insured, Renee Etie, was involved in a one-vehicle accident which left her a quadriplegic and with permanent brain damage. At the time of trial, Group Benefits had paid $611,142.02 for Etie’s medical expenses. After several days of trial, Etie’s mother settled with Honda. After notice of the settlement to counsel for Group Benefits, Group Benefits’ intervention claim was dismissed with prejudice.

FACTS

Renee Etie was involved in a car accident on June 7, 1997. At the time, Etie had health insurance coverage with State Employees Group Benefits Program, predecessor to Group Benefits. Group Benefits paid medical expenses for Etie’s medical care totaling $611,142.02 through December 31, 2001.

On June 3, 1998, Etie’s mother, Eleanor Etie Bazer, individually and on behalf of Etie, sued Honda Motor Company, Ltd., American Honda Motor Company, Inc. and Honda Research and Development Company, Ltd. (hereinafter collectively referred to as Honda). Bazer claimed that Etie was harmed by the defective design of the Honda that Etie was driving at the time of the accident. She also sued Iberia Parish Government.

Group Benefits intervened in the suit on September 4, 1998. Prior to trial, Iberia Parish Government settled with Bazer and Group Benefits. Group Benefits received $30,000 as a result of the settlement.

On May 10, 2002, pretrial motions were heard, and trial by jury began on May 13, 2002. At that time, counsel for Group Benefits offered a written stipulation on lathe issue of subrogation and reimbursement of benefits into evidence. Written reasons for judgment indicate that counsel for Group Benefits then asked if she could be excused from the rest of trial, which Group Benefits admits in brief. Trial continued for six additional days.

After lunch on the sixth day, Bazer and Honda informed the court that they had reached a settlement. At that time a call was placed by Bazer’s attorney in the presence of the trial court to counsel for Group Benefits informing her of the settlement. Group Benefits was told that if it wanted to pursue its intervention claim, it would need to be at the courthouse within an hour-and-a-half. Group Benefits was advised that the trial court would not hold the jury past this time.

By 1:00 p.m., no one had appeared on behalf of Group Benefits nor had anyone called to advise the trial court of Group Benefits’ intentions or if it planned to take any action. Thereafter, Bazer asked that Group Benefits’ intervention claim be dismissed, and án order dismissing Group Benefits’ claims was signed on May 28, 2002. Oh June 7, 2002, Group Benefits filed a motion for new trial. A hearing on the matter was held on July 26, 2002, with the trial court taking the matter under advisement. On July 31, 2002, the trial court issued written reasons for judgment denying Group Benefits’ motion for new trial. A judgment was signed on December 17, 2002. It is from this judgment that Group Benefits appeals.

DISCUSSION

Group Benefits argues that the trial court erred in dismissing its claim because its claim was proven prior to trial. It relies on a pretrial stipulations and a stipulation that it introduced as an exhibit prior to trial, which includes the reimbursement and subrogation provisions from the plan- document between it and Etie. It was also stipulated that Group Benefits had issued benefits on behalf of Etie in the total | ^amount of $611,142.02 for the treatment of injuries she sustained in the accident. Therefore, Group Benefits argues that it did not need to prove anything further.

However, what Group Benefits fails to recognize, and which was acknowledged by the trial court in its reasons for judgment, the stipulation also provided that Group Benefits was entitled to recover with preference and priority for issued benefits if there is a “finding that any of the defendants are at fault.” A settlement was reached between Bazer and Honda before there was any finding of fault. As observed by the trial court, the stipulation only established the amount of Group Benefits’ claim.

If Honda had admitted liability prior to trial, then there would have been no need to have a trial on the issue. Group Benefits was asserting a claim based on subrogation against Honda. “When subrogated to the rights of the insured, the insurer stands in the shoes of the insured and thereby acquires the independent right to assert the actions and rights of the insured.” Bailsco Blades & Casting, Inc. v. Fireman’s Fund Ins. Co., 31,876, p. 3 (La.App. 2 Cir. 5/5/99), 737 So.2d 164, 166(citing Barreca v. Cobb, 95-1651 (La.2/28/96), 668 So.2d 1129, and La. Civ.Code arts. 1825 and 1826). “Additionally, the subrogated insurer acquires no greater rights than those possessed by its subrogor and is subject to all limitations applicable to the original claim of the sub-rogor.” Id. at 167. Group Benefits still had to establish liability to succeed on its subrogation or reimbursement claim.

However, the fact still remains that both Bazer and Honda had notice of Group Benefits’ claim for medical expenses paid because it intervened in the proceedings. In State Nat. Fire Ins. Co. v. Sykes, 527 So.2d 589 (La.App. 3 Cir.1988), this court held that where the plaintiff/subrogor settles with the tortfeasor and his insurer for the full amount of the damages, and when the tortfeasor and his insurer are aware of the |4subrogee’s claim for reimbursement, the subrogee can recover what it paid to the plaintiff/subrogor from the tortfeasor and his insurer. But the inquiry does not end here.

The trial court in written reasons for judgment explains that the attorneys and the court notified Group Benefits about the settlement but Group Benefits “made [a] conscious decision, perhaps a bad decision, to absent itself from the trial.” The trial court also observed that Group Benefits claims that the trial court did not identify itself when the call was made to notify it of the settlement and that it needed to take action to preserve its claim. The trial court explained that “[i]f the OFFICE OF GROUP BENEFITS had any doubt, it certainly could have made a follow-up call to the Court to confirm same.” In addressing Group Benefits’ claim that it could not appear at the court within the time limitations set by the trial court, the trial court stated:

The OFFICE OF GROUP BENEFITS had more than 1% hours to come to a trial in New Iberia from Baton Rouge; a trial which it received notice of and should have been prepared to try. The Court does not find that it was impossible to come to New Iberia to reappear at trial. If Intervenor had a hardship, it again could have called the Court and asked for additional travel time. Inter-venor never requested this from the Court which certainly would have been granted.

. We are mindful of Motor Ins. Corp. v. O’Neal, 449 So.2d 1390 (La.App. 3 Cir. 1984), in which this court held that, an insurer’s subrogation suit should not have been dismissed pursuant to a settlement between its insured and defendant and her insurer, where the insurer’s claim was never compromised, it never joined in the motion to dismiss, and it never consented to dismissal. However, in that case the insurer was not given an opportunity to pursue its subrogation claim. Group Benefits was given the opportunity to establish its claim of Honda’s liability but instead chose to be absent from the jury trial proceedings and to take no further action to preserve its 1 .-Nairn whatsoever when notified that a settlement had been reached between Bazer and Honda. Based on the actions of Group Benefits, the trial court was within its authority to assume that Group Benefits acquiesced in the settlement and dismiss its intervention accordingly.

We also observe that Group Benefits may not have been successful in its reimbursement claim against Bazer. When discussing the settlement with the trial court, the trial court noted that the amount of the settlement had been revealed to it, and it agreed, after listening to all the evidence up to that point, “that the amount of the settlement is certainly significantly less than the amount that has been testified to which would be required for future care.”

Louisiana Civil Code Article 1826(B) provides, in part, that “[a]n original obli-gee who has been paid only in part may exercise his right for the balance of the debt in preference to the new obligee.” The court in Fair Grounds Corp. v. ADT Sec. Sys., 97-2375, p. 17 (La.App. 4 Cir. 9/23/98), 719 So.2d 1110, 1119, writ denied, 98-3098 (La.2/5/99), 738 So.2d 6, recognized that “under Louisiana law, the original subrogor is always preferred to the subrogee in such a case, and the subrogee can only claim that which remains after the subrogor has been paid.” The parties agreed, with the trial court concurring, that Bazer’s settlement with Honda did not even satisfy all of Etie’s expenses that would be required for just her future medical expenses.

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Office of Group Benefits.

AFFIRMED.


author: J^MOON LANDRIEU, Judge Pro Tempore.

text:
    Linda RAINES v. Eugene COLLEY d/b/a E.C. Colley Warehouse and B & F Special Risk Insurance Company.
    No. 2003-CA-1630.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.

      Anthony S. Taormina, The Law Offices of Anthony Taormina, Metairie, LA, for Plaintiff/Appellant.
    Ginger K. DeForest, Ungarino & Eckert L.L.C., Metairie, LA, for Defendani/Appel-lee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD and Judge Pro Tempore MOON LANDRIEU).
   J^MOON LANDRIEU, Judge Pro Tempore.

Statement Of The Case

Linda Raines, the appellant/plaintiff, seeks damages against Colley Properties, L.L.C., and its insurer for injuries resulting from her fall on a stairwell at her place of employment. On May 21, 2003, Colley Properties filed, a motion for summary judgment. On June 18, 2003, Ms. Raines filed an opposition to the motion for summary judgment..

On June 20, 2003, the trial court heard the exception and motion. On July 9, 2003, the trial court signed a judgment granting the motion for summary judgment on the grounds that Colley Properties, the owner and lessor of the warehouse, did not have sufficient notice of the defect in the handrail before Ms. Raines’ accident.

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

Statement Of The Facts

On May 15, 2001, Colley Properties purchased a warehouse located at 1121 S. Claiborne Avenue in New Orleans from Earhart Properties, L.L.C. At the time 1 ¡>of the purchase,.P.A. Menard, a food service business that employed Ms. Raines, leased a portion of the warehouse from Earhart Properties. With the purchase of the warehouse, Colley Properties assumed the rights and obligations under that lease, including an indemnity/ hold harmless clause that stated:

HOLD HARMLESS AGREEMENT: Lessee [P.A. Menard] shall indemnify, defend, and save Lessor [Colley Properties] harmless from and against any and all liability, penalties, causes of action, claims or judgments for death, injury or damages to persons or property during the term of this lease, while on or arising out of the use, occupation, management or control of the Leased Premises, or any act of .operation thereof, or growing out of demolition, construction, alter■nation or repair of any building thereon in any case, except for any liability, claim or cause of action resulting from the gross, actionable negligence of the Lessor or due to Lessor’s willful acts. Lessees shall and will, at its own expense, defend any and all suits that may be brought against Lessor or any of them.

On August 2, 2001, the day of the accident, Ms. Raines was working in P.A. Me-nard’s leased portion of the warehouse when she fell in a stairwell due to a broken handrail. Ms. Raines testified in her deposition that she told her supervisors at P.A. Menard about the broken handrail prior to her accident but that she did not recall speaking with Mr. Menard or Mr. Colley about the issue until after the accident. Ms. Raines also conceded that no employee of Colley Properties occupied or used the building until several months after her accident.

Mr. Colley stated in his affidavit that P.A. Menard had occupied a portion of the warehouse since 1997 and that the hold harmless clause in the lease was the primary reason he allowed P.A. Menard to remain a tenant despite the condition of the warehouse. Mr. Colley also stated in his affidavit that neither Earhart Properties nor Mr. Menard notified him of a broken handrail at the time of purchase and that he was not aware of or made aware of the broken handrail until after Ms. Raines’ accident. Immediately after being made aware of the broken 13handrail, Colley Properties had the handrail repaired. Lastly, Mr. Colley confirmed that none of the employees of Colley Properties used or occupied the warehouse until after January 1, 2002.

Discussion

Ms. Raines claims that the trial court erred in granting summary judgment in favor of Colley Properties as the lessor of the warehouse in which Ms. Raines worked. Ms. Raines argues that Colley Properties failed to exercise reasonable care in discovering and preventing damage from vices or defects in the warehouse and that notice of the defect was not required. Ms. Raines relies on La. C.C. art. 2322, which states:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

Colley Properties argues that the more general analysis of lessor liability urged by Ms. Raines is not applicable to the facts of the instant case. That is, the more specific hold harmless clause in the lease with Ms. Raines’ employer transferred liability from Colley Properties to P.A. Menard, and La. R.S. 9:3221 insulates Colley Properties from liability based on lack of knowledge and lack of notice of the allegedly broken handrail. La. R.S. 9:3221 states:

The owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the owner knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time.

|4Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. The test for whether or not summary judgment was properly granted in this case is found in Code of Civil Procedure art. 966(C), which states:

(1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

We find that there is no genuine issue of material fact: Ms. Raines alleged that the handrail was broken; and after reporting her accident to Colley Properties, the handrail was repaired. In addition, we find that the indemnity/hold harmless clause transferred responsibility for the condition of the warehouse from Colley Properties as the lessor to P.A. Menard as the lessee. Colley Properties would not be liable unless Ms. Raines could show that Colley Properties knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time. La. R.S. 9:3221; see Marcades v. Cleanerama, Inc., 2002-0357, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289.

In his affidavit and deposition testimony, Mr. Colley claimed that Colley Properties did not occupy the warehouse and was not aware of and was not made | Raware of the broken handrail until after the accident. In her deposition testimony, Ms. Raines admits that she did not make Colley Properties aware of the broken handrail until after her accident. At most, Ms. Raines testified that Colley Properties purchased the warehouse three months before her accident and that such purchase must have involved inspections of the warehouse for defects. Mr. Colley, however, testified that he was not aware of or made aware of any defect in the handrail until after the accident.

We find no evidence in the record that Ms. Raines can meet her burden of proving liability on the part of Colley Properties at trial. Ms. Raines cannot prove a defect for which Colley Properties, as a lessor, would be liable or that Colley Properties knew or should have known of an alleged defect in the handrail.

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

AFFIRMED.

      . On August 12, 2001, Ms. Raines filed her original petition for damages, naming B & F Special Risk Insurance Company as the insurer of the defendant Eugene Colley, d/b/a E.C. Colley Warehouse. On November 22, 2002, Ms. Raines filed an amended petition naming the General Star Management Company as the defendant's insurer. In his answer, Mr. Colley clarified the name of the insurer as General Star Indemnity Company.

      . Through discovery, Mr. Colley showed that Colley Properties, L.L.C., was the owner of the E.C. Colley Warehouse, and Ms. Raines conceded that there was no right of action against Mr. Colley in his personal capacity. On July 1, 2003, Ms. Raines filed a second amended petition for damages, naming Colley Properties, L.L.C., as a defendant.


author: JjMOON LANDRIEU, Judge Pro Tempore.

text:
    Inotee RIVERA v. Dennis BLOSSOM and Blossom Construction Company, Inc.
    No. 2003-CA-1629.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.
    Douglas D. McGinity, Richard J. MeGinity, Jr., Marrero, LA, for Plaintiff/Appel-lee.
    Dennis Blossom, New Orleans, LA, In Proper Person, Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge EDWIN A. LOMBARD, Judge Pro Tempore MOON LANDRIEU).
   JjMOON LANDRIEU, Judge Pro Tempore.

In this breach of contract case, the defendant-appellants, Dennis Blossom and Blossom Construction Company, Inc. (collectively referred to as “Blossom”) appeal the May 9, 2003 default judgment against them for $26,000. Blossom claims for the first time on appeal that they were not served with plaintiff/appellee Inotee Rivera’s Petition for Damages for Breach of Contract as alleged in the plaintiffs Motion for Default Judgment. For the following reasons, we affirm the judgment of the trial court.

STATEMENT OF FACTS

On January 7, 2003, the defendant/appellants Dennis Blossom and Blossom Construction Company, Inc. submitted an agreement for all materials and labor for construction work to be performed on plaintiff/appellee Inotee Rivera’s (“Rivera”) property located at 2442 Annunciation Street. The agreement called for Blossom to install a central air and heat system, gut the exterior walls, install installation, hang taping and finish sheet-rocking, as well as remove the existing asbestos [¡¡shingles on the roof, replacing them with 20 year seal tab shingles. The total cost for the work was $15,500 to be paid one-third down at the beginning, one-third after the roof was stripped and the balance upon completion.

A January 13, 2003 correspondence stated that the work was to be performed on Rivera’s property located at 2324-26 Annunciation Street, and included all materials and labor for the entire removal of existing roof shingles and their replacement with asphalt roof shingles, the installation of two three-ton heating and cooling central air systems with all duct work and installation, and to provide and install R-18 Batt insulation and new inch sheet-rock at all perimeter walls.

On February 10, 2003, Rivera and Dennis Blossom signed a “Contract Adjustment” which stated that to date $8,000 of the original contract amount of $15,500 had been paid, and noted that the only work completed since the original agreement was the plaster at exterior wall demolition and 75% completion of the roof. The contract adjustment gave Blossom twenty-one days or until March 3, 2003, to complete installing new sheetrock and the central air and heat system, finish the walls and complete the roof. The parties also agreed that a liquidated damage amount of $200 per day would be deducted from the remaining balance of $7,500 due at the completion of the job.

[oOn April 9, 2003, Rivera filed a Petition for Damages for Breach of Contract alleging that by the defendants’ intentional or negligent acts, they willfully and knowingly failed to perform any aspect of their contractual obligations except for renovations to the roof and the hanging of some sheetrock which entitled him to the return of the $15,500 paid to the defendants with legal interest and damages under the contract and Louisiana law for the costs for repairs to the substandard partial renovation work and the resultant damages caused thereby, increased insurance premiums because of the delays in construction, the costs of removing the construction dumpster, the loss of use and rental income of the building, and mental anguish as well as emotional distress.

Rivera claimed that the total amount of $15,500 had been paid pursuant to the terms of the contracts, and that the work done by Blossom resulted in the roof leaking and further damage to the property resulting in the need for more expensive repairs to the building. The Sheriffs Return indicated that domiciliary service of the plaintiffs petition was made on Dennis Blossom at 8619 Pettari Place through his wife, Kathleen Blossom, on April 12, 2003. Mrs. Blossom claimed that she hand delivered the petition to Dennis Blossom.

On April 29, 2003, the plaintiff filed a Motion for Default and the district court granted a preliminary default judgment that same day after the clerk of court certified that nothing had been filed by the defendant. In the May 9, 2003 affidavit by Rivera in support of the Motion for Default, Rivera assessed the damages incurred: $15,400 paid in cash to Dennis Blossom plus legal interest; $13,200 14based on contractual damages of $200 per day for failure to complete the work from March 3 to May 8, 2003; any additional daily accrual damages at the rate of $200 per day, $5,000 per month for loss of use and/or rental income of the building, $7,500 for emotional distress and severe mental anguish, $5,000 to replace or make repairs on the substandard renovation work done by Blossom and the resultant damages, as well as all other damages presented at trial.

On May 9, 2003, the district court rendered judgment in favor of plaintiff Rivera and against the defendants awarding Rivera $26,000 in damages “plus legal interest and all court costs which the Court finds reasonable under the premises.” The Notice of Signing of Judgment was mailed to Dennis Blossom at 3619 Pettari Place, New Orleans, LA 70131. On July 21, 2003, Dennis Blossom was personally served at 2201 Springbrook Lane, Apt. F, New Orleans, Louisiana 70131 with the Motion for Judgment Debtor Examination ordering him to. appear on August 1, 2003. He failed to appear.

ASSIGNMENT OF ERROR

In his sole assignment of error, the appellant claims that the trial court erred in entering a judgment of default against him because he never received notice of the plaintiffs action against him.

DISCUSSION

Insufficiency or deficiency of the service of process is a declinatory exception, which must be pled prior to judgment by default, or it is waived by the defendant. La. C.C.P. art. 925 and 928. Guidry’s Seafood Distributors, Inc. v. Farmers Seafood Company, Inc., 99-1005 (La. App. 3 Cir. 12/15/99), 759 So.2d 806; Katz v. Brian Investments, Ltd., 542 So.2d 48 (La.App. 4 Cir.1989); Decca Leasing Corp. v. Torres, 465 So.2d 910 (La.App. 2 Cir. 1985); General Leasing Co. v. Leda Towing Co., Inc., 350 So.2d 931, (La.App. 4 Cir.1977). Once a default judgment has been rendered. by the court,, the defendant’s sole .remedy is a suit to annul the judgment, not by an appeal. Guidry’s Seafood Distributors, Inc., supra; Rodriguez v. Prudhomme Mobile Homes, 98-1384 (La.App. 3 Cir. 3/3/99), 737 So.2d 75; Decca Leasing Corp., supra. This issue has been addressed previously by- this Court in In re Johnson, 449 So.2d 157, at 158 (La.App. 4 Cir.1984), citing McMickens v. McMickens, 386 So.2d 972 (La.App. 3 Cir.1980). This Court stated:

The declinatory exception must be pleaded prior to answer or judgment by default. LSA-C.C.P. Article 925 and 928.
LSA-C.C.P. Article 2001 provides:
“The nullity of a final judgment may be demanded for vices of either form or substance, as provided in Articles 2002 through 2006.”

LSA-C.C.P. Article 2002 provides in pertinent part as follows:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance.”

The official comments to this article state in part:

“(d) The above article covers judgments rendered in cases where there was no citation at all, cases involving defective citation, and cases where the defendant did not effect a waiver of service and citation by making a general appearance.”
In light of the cited articles we conclude that appellant’s remedy, if he be aggrieved by the judgment ... is by way of a suit for nullity of judgment and not by appeal.

In the instant case, the defendant did not make an appearance before the trial court nor did he plead insufficiency of service of process in a declinatory exception | fibefore the trial court rendered a judgment of default against him. Instead he challenges the sufficiency of service for the first time on appeal. The proper remedy for the defendant to have challenged the validity of the default judgment was in a suit to annul the judgment, not by means of an appeal. Therefore, without deciding the merits of defendants’ claim, we conclude that this case is not properly before us having been raised for the first time on appeal, instead of in a suit to annul the default judgment.

Finally, in plaintiff-appellee’s answer to the appeal she requests sanctions for the defendants’ frivolous appeal in the amount of $5,000.

La.C.C.P. art. 2164 authorizes a claim for damages for frivolous appeal. Because its provisions are penal in nature they must be strictly construed. American Supply Co. of Morgan City, Inc. v. Tam Alyene, Inc., 470 So.2d 459, (La.App. 1 Cir.1985). Since appeals are favored, the imposition of penalties will not be granted unless clearly due and it appears that the appeal was taken solely for delay, that appealing counsel does not seriously believe in the position he advocates, and that there are no serious legal questions. If an appeal raises legitimate issues even though its contentions are without merit, damages are not allowed. Lemke v. Lemke, 616 So.2d 852 (La.App. 3 Cir.1993). The record before this Court does not provide enough evidence to conclude that this appeal was frivolous.

For the foregoing reasons, the judgment of the trial court is affirmed and sanctions for frivolous appeal are denied.

AFFIRMED.

      . The January 7, 2003 agreement stated that the work was to be performed at 2442 Annunciation Street. However, the Petition for Damages for Breach of Contract filed by Ino-tee Riveria stated that all of the renovations and objectives set forth in the contracts were to be performed at 2324-26 Annunciation Street.

      . The copy of original agreement provided in the records to this Court was neither witnessed nor signed by Rivera.

      . The record presented to this Court contains ■ four checks from Rivera to Dennis Blossom: check no. 406 issued on 1/8/03 for repair work in the amount of $500, check no. 409 issued on 1/13/03 for deposit on contract in the amount of $5,000, check no. 412 issued on 1/21/03 for a second payment in the amount of $3000, and check no. 416 issued on 2/1/03 for electrical in the amount of $1,900.

      .The contract adjustment actually states the original contract amount as $15,5000 in error.


author:
1-iMAX N. TOBIAS, JR., Judge.
      |,McKAY, J.,

text:
    William D. MAAG, Sr. v. CITY OF NEW ORLEANS and New Orleans Public Belt Railroad.
    No. 2003-CA-1664.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 2004.

      Patrick H. Hufft, Hufft & Hufft, APLC, New Orleans, LA, for Plaintiff/Appellant, William D. Maag, Sr.
    David S. Kelly, Robert S. Emmett, Lem-le & Kelleher, L.L.P., New Orleans, LA, for Appellee, Illinois Central Railroad Company.
    (Court Composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., and Judge LEON A. CANNIZZARO, JR.).
   1-iMAX N. TOBIAS, JR., Judge.

On or about 4 May 2001, William Maag (“Maag”) was driving a 1994 Freightliner 18-wheel truck in New Orleans on Tchoup-itoulas Street when he struck a pothole in the road. The pothole exposed railroad tracks that had been paved over by the City of New Orleans and the resulting impact broke the axle of the truck and injured Maag when he struck the roof of the cab of his truck. On 23 January 2002, Maag filed suit against the City of New Orleans (“the City”) and the New Orleans Public Belt Railroad. Shortly thereafter, Maag dismissed New Orleans Public Belt Railroad from the lawsuit and added Illinois Central Railroad Company d/b/a Canadian National/Illinois Central Railroad Company (“CN/IC”) as a defendant in the matter. Maag alleges that CN/IC was the owner and/or custodian of the railroad tracks under Tchoupitoulas Street and that it was negligent in failing to warn motorists of the existence of the tracks and in failing to remove the tracks, which had been abandoned by CN/IC in 1984.

CN/IC filed a motion for summary judgment, asserting that it had legally abandoned the railroad tracks in New Orleans and that it was no longer liable for |2any damages arising from their existence or placement. Specifically, CN/IC produced evidence that it had petitioned the Interstate Commerce Commission in 1984 to abandon certain railroad tracks, including those at issue. As part of the abandonment process, the City of New Orleans and all of the shippers on the line were notified of the proposed abandonment. After the abandonment process was completed in 1985, CN/IC asserts that ownership of the tracks reverted to the City, insofar as they constituted immovable property and components of the land owned by the City. CN/IC claims that it has had nothing to do with the tracks since the abandonment process, and that it could not have used or removed the tracks since they were abandoned in 1985, as the City had paved over them with asphalt. CN/IC asserts that, in fact, the tracks have since been removed by the City.

The trial court granted CN/IC’s motion for summary judgment. In its reasons for judgment, the trial court found that:

Defendant railroad abandoned the stretch of track in question in 1985. It gave notice to the City and users of the track all in accordance with federal abandonment procedures.
In fact, the City of New Orleans and Glazer Steel Corporation sued the Interstate [Commerce] Commission to prevent abandonment of the trackage, to no avail. Defendant railroad no longer had any responsibility for the tracks which became part of the street.

Maag subsequently lodged this appeal of the trial court’s judgment.

Summary judgments are subject to de novo review by an appellate court. Independent Fire Ins. Co. v. Sunbeam, Corp., 99-2181 (La.2/29/00), 755 So.2d 226. A motion for summary judgment shall be granted if the mover shows that [sthere is no genuine issue of material fact. La. C.C.P. art. 966(C)(1). Further, although the burden or proof with regard to a motion for summary judgment is with the movant, if the movant will not bear the burden of proof at trial on the cause of action before the court, the movant is only required to demonstrate lack of factual support for one element of the cause of action. La. C.C.P. art. 966(C)(2). If the non-moving party fails to put forth sufficient evidence that he will be able to satisfy his burden at trial, even as to one element of his cause of action, the motion must be granted. La. C.C.P. art. 966(C)(2); Migliori v. Willows Apartments, 98-1814 (La.App. 4 Cir.1999), 727 So.2d 1258, 1260, citing, Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/18/96), 684 So.2d 488, 490.

Maag asserts that the trial court erred in granting the motion for summary judgment on the grounds that the railroad tracks constituted movable property and that CN/IC maintained ownership of the track and track materials when it abandoned the line and should have removed the tracks at the time of abandonment. Maag further maintains that railroad tracks are not immovable fixtures to the land, as was argued by CN/IC in its motion for summary judgment, but rather that railroad tracks constitute “trade fixtures” when they are constructed on the property of another and maintain their identity as movables under the law.

La. C.C. art. 2317 provides:
We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody, This, however, is to be understood with the following modifications.

|4La. C.C. art. 2317.1 provides, in pertinent part, that:

The owner or custodian of a thing is answerable for the damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by reasonable care, and that he failed to exercise such reasonable care....

We are mindful that liability arising out of Civil Code articles 2317 and 2317.1 is grounded in custody, or’ garde, not ownership. Migliori v. Willows Apartments, 98-1814 (La.App. 4 Cir. 2/3/99), 727 So.2d 1258. See also, Thumfart v. Lombard, 613 So.2d 286 (La.App. 4 Cir.1993). In Mi-gliori, a sub-contracted carpet' installer was injured on the job when he fell down a flight of stairs with loose carpeting in an apartment building under renovation. The carpeting had previously been removed from the stairs by employees of another sub-contractor to repair a rotten step. Migliori filed suit against the owner of the property, the contractor, and the sub-contractor working at the site. The owner of the property moved for summary judgment on the grounds that although he held title to the property and even made sporadic inspections of the property under renovation, he had transferred custody and control of the worksite to the contractors and sub-contractors and no longer had garde over the property. In fact, the contract between the owner of the complex and the contractor provided that the owner had the right “to inspect and coordinate” the work of the contractors. Id., 98-1814 at p. 5, 727 So.2d at 1260. The trial court granted the motion for summary judgment and this court affirmed the judgment, noting that absent care, custody, and control of the owner, no liability could be imposed under La. C.C. art. 2317. In the matter sub judice, there is no evidence put forth by Maag that CN/IC exercised any degree |fióf custody, care, or control over the tracks at the time of his accident. Thus, even if CN/IC were found to be the owner of the railroad track in question as a matter of law, such a finding would not be sufficient to impose liability on it for Maag’s injuries. See, Klein v. Cisco-Eagle, Inc., 37,398 (La.App. 2 Cir. 9/24/03), 855 So.2d 844. Thus, regardless of what vestiges of ownership might remain regarding the tracks, it is clear that Maag did not put forth evidence that CN/IC had garde over the tracks, which is essential to a finding of liability on the part of CN/IC. In fact, there is no evidence in the record that CN/IC has had anything to do at all with the track since its abandonment in 1985. Because Maag has failed to carry his burden of proof on an essential element of his cause of action against CN/IC, to-wit, that CN/IC had care, custody, control, or garde, summary judgment is warranted. We do not address whether the tracks are indeed immovables by destination, immov-ables by nature, or movables because the evidence supports CN/IC did not have garde of the site. No genuine issue of material facts exists. The trial court did ■ not err in granting CN/IC’s motion for summary judgment, as there was no genuine issue of material fact before it. For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

McKAY, J., DISSENTS WITH REASON.

|,McKAY, J.,

DISSENTS WITH REASON.

I respectfully dissent from the majority opinion. There appear to be significant issues that remain in question. For example, did CN/IC, despite their petition to the Interstate Commerce Commission to abandon the tracks, which ;was approved, retain the actual ownership of the tracks?. Did CN/IC hold a servitude on the property located at the intersection or hold some greater interest? Did the City, due to CN/IC’s abandoning the tracks, inherit the ownership of the tracks thereby resulting in inheriting CN/IC’s liability? Although, this is in no way an exhaustive list, it illustrates that significant issues remain to be resolved. Many of these questions are novel issues that could only be addressed on the merits and not summarily dismissed. Furthermore, to hold that once a railroad abandons a servitude they lose all responsibility for the trackage they leave behind could be in contravention of public policy. Therefore, I would reverse the trial court and remand the matter for further proceedings.

      . CN/IC petitioned the Interstate Commerce Commission to abandon the tracks and the abandonment was approved. One shipper on the now-defunct line and the City filed suit to contest the abandonment, but the decision of the commission was upheld. Glazer Steel Corp. v. Interstate Commerce Commission, 748 F.2d 1006 (5th Cir.1984).

      .The tracks at issue were reportedly "spur” tracks, which once serviced the long defunct Empire Rice Company.

      .Maag does not contest this allegation, but we note that there is no evidence in the record regarding the removal of the tracks.

      .It is uncontested that CN/IC did not own the land where the railroad tracks that Maag struck were located.