author: GUIDRY, J.

text:
    INTEGRITY FLOORING, LLC, d/b/a Southeast Flooring v. MID SOUTH CONTRACTORS, LLC.
    No. 2002 CA 2636.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Craig L. Raster, Zachary, Counsel for Plaintiff/Appellant Integrity Flooring, LLC d/b/a Southeast Flooring.
    J. Kenton Parsons, Terri M. Collins, Brent J. Bourgeois, Baton Rouge, Counsel for Defendants/Appellees Mid South Contractors, LLC and Carolina Casualty Insurance Company.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   GUIDRY, J.

This appeal arises from a judgment of the trial court denying a subcontractor’s motion to stay the district court action to recover sums allegedly owed for work performed until a pending arbitration proceeding was resolved.

FACTS AND PROCEDURAL HISTORY

On or about August 29, 2000, Mid South Contractors, LLC (Mid South) and Integrity Flooring, LLC, doing business as Southeast Flooring (Integrity), entered into a subcontract agreement whereby Integrity would perform certain flooring work in conjunction with a construction project for which Mid South was awarded the general contract. Following the filing of a notice of substantial completion, Mid South received a letter from the owner of the project notifying it that the flooring work was unacceptable and demanding replacement or repair of the defective work. Mid South, in turn, notified Integrity of the demand and requested that Integrity correct the defective work. The corrective work was not performed.

On April 18, 2002, Integrity filed the instant suit in district court demanding payment of the sums owed to it pursuant to its subcontract agreement with Mid South while “reserving all rights to arbitration pursuant to the contract documents.” Integrity filed a discovery request with the petition. A month later, Integrity amended its petition to name Carolina Casualty Insurance Company, issuer of a performance and payment bond to Mid South relative to the project at issue, as an additional defendant. Integrity filed an additional discovery request with the amended petition.

Subsequently, Mid South filed its answer and a reconventional demand to Integrity’s petition, denying liability, asserting various affirmative defenses, and reconvening for the repair of the defective flooring. In response to Mid South’s reconventional demand, Integrity filed an answer on June 17, 2002. In its answer, Integrity reserved its right to arbitration pursuant to the subcontract agreement, | .¡denied liability for the allegedly defective work, and asserted various affirmative defenses. Concurrently, Integrity filed a motion to stay the trial court proceedings pending arbitration.

Following a hearing, the trial court denied the motion to stay. Integrity applied for supervisory writs to this court, and this court determined that the trial court’s judgment denying Integrity’s motion to stay was an appealable, interlocutory judgment because of the potential to cause irreparable injury. Thus, the case was remanded to the trial court with instructions to convert Integrity’s writ application to an appeal and to stay the proceedings pending Integrity’s perfection of a suspensive appeal. Integrity Flooring, LLC v. Mid South Contractors, LLC, 2002-2089 (La.App. 1st Cir.12/3/02)(unpublished writ). This appeal followed.

DISCUSSION

In bringing this appeal, Integrity claims that the trial court erred in denying its motion to stay based on the finding that Integrity had waived its right to arbitration. A determination that a party has waived the right to arbitration is a factual finding subject to the manifest error standard of review. Flatland Real Estate Company, LLC v. Dugas Construction, Inc., 00-1794, p. 5 (La.App. 3rd Cir.5/9/01), 784 So.2d 867, 871. Louisiana Revised Statutes 9:4202 further provides:

If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with the arbitration.

Furthermore, La. R.S. 9:4201 provides that an agreement to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” Nevertheless, Louisiana jurisprudence Lhas held that despite this mandate, a party’s conduct can effect a waiver of its right to demand arbitration. Hospital Service District No. 3 of the Parish of Lafourche v. Fidelity & Deposit Company of Maryland, 99-2773, p. 5 (La.App. 1st Cir.1/16/01), 809 So.2d 145, 148, writ denied, 01-0679 (La.4/27/01), 791 So.2d 639; Flatland Real Estate Company, LLC, 00-1794 at 5, 784 So.2d at 871.

Waiver of arbitration, however, is not a favored finding, and there is a presumption against waiver. Flatland Real Estate Company, LLC, 00-1794 at 5, 784 So.2d at 871. The burden of proof to establish waiver of arbitration is heavy, and the party seeking to establish waiver must show that it has been prejudiced by the actions of the party requesting arbitration. Simpson v. Pep Boys-Manny Moe & Jack, Inc., 03-0358, p. 4 (La.App. 4th Cir.4/10/03), 847 So.2d 617, 621. Whether a party, by demanding court action, has waived the right to demand arbitration, and whether the party indeed abandoned his right to request arbitration by resorting to court procedure, will depend on the circumstances of each case. Hospital Service District No. 3 of the Parish of Lafourche, 99-2773 at 6, 809 So.2d at 149.

Louisiana has a strong public policy that favors the enforcement of arbitration clauses. Shroyer v. Foster, 01-0385, p. 5 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 87. It has been held that only in extreme cases should a court find that a party has waived its right to arbitration. Matthews-McCracken Rutland Corp. v. City of Plaquemine, 414 So.2d 756, 757 (La.1982). Based on our review of the record before us, we find that the trial court manifestly erred in concluding that such extreme circumstances were shown in this case, and that continuing with arbitration at that juncture in the proceedings was prejudicial Mid South.

The trial court reasoned that granting the motion to stay would prejudice Mid South because the judicial process had been substantially invoked and thus, Integrity waived its right to seek arbitration. The fact that a party sought relief |Rfrom the court before demanding arbitration is not, in and of itself, determinative of whether the right to demand arbitration is waived. It is only a factor to consider in making such a determination. Big River Construction & Remodeling Co., Inc. v. University Club I Apartments, L.P., 598 So.2d 542, 544 (La.App. 1st Cir.1992). Integrity filed a motion to stay the judicial proceedings to pursue arbitration of its claims against Mid South just two months after filing its initial petition. Thus, there was no lengthy participation in the litigation process prior to Integrity filing its request for arbitration. See Simpson, 03-0358 at 4, 847 So.2d at 624; Flatland Real Estate Company, LLC, 00-1794 at 5, 784 So.2d at 872; Albert K. Newlin, Inc. v. Morris, 99-1093, p. 9 (La.App. 3rd Cir.1/5/00), 758 So.2d 222, 228; Big River Construction & Remodeling Co., Inc., 598 So.2d at 545.

The record also reveals that although some discovery was conducted in this case, it was not so extensive as to constitute a substantial invocation of the judicial process to the detriment or prejudice of Mid South. See B & S Equipment Company, Inc. v. Carl E. Woodward, Inc., 620 So.2d 347, 351 (La.App. 5th Cir.), writ denied, 629 So.2d 394 (La.1993). Specifically, the record shows that the only discovery conducted by the parties at the time of the hearing was the request for documents and a request for admissions filed by Integrity and other written discovery requests made upon Integrity by Mid South. Counsel for Mid South admitted at the hearing, however, that discovery was by no means complete in that Mid South desired to conduct depositions as well. See B & S Equipment Company, Inc., 620 So.2d at 351.

Furthermore, counsel for Mid South and Integrity both admitted at the hearing that Integrity’s initial request for a “fast track” arbitration procedure would most likely be converted to a regular procedure, and that under a regular procedure, | (¡discovery is allowed. Mid South did not establish that the discovery already conducted by the parties would not be allowed in the arbitration proceedings. Thus, Mid South did not establish prejudice as a result of the discovery that had been conducted. See Simpson, 03-0358 at 9, 847 So.2d at 624.

In delineating the manifest error standard of review, the Louisiana Supreme Court stated in Mart v. Hill, 505 So.2d 1120, 1127 (La.1987):

[I]f an appellate court concludes that the trial court’s factual findings are clearly wrong, the mere fact that some record evidence appears which would furnish a reasonable factual basis for the contested findings does not require affirmance. Although appellate courts must accord great weight to the factual findings of the trial judge, these same courts have a duty to determine if the fact finder was justified in his conclusions. An appellate court is not required, because of the foregoing principles of appellate review, to affirm the trier of fact’s refusal to accept as credible uncontradicted testimony or greatly preponderant objectively-corroborated testimony where the record indicates no sound reason for its rejection and where the factual finding itself has been reached by overlooking applicable legal principles. (Citations omitted).

Although the record does contain some evidence that would support the trial court’s finding, having considered all of the evidence of record in the bright light of the applicable legal principles, we conclude that the evidence is insufficient to show that Integrity’s actions were so extreme as to prejudice Mid South if the matter were allowed to proceed to arbitration. Thus, based on the record before us, we hold that the trial court was clearly wrong in finding that Integrity had waived its right to pursue arbitration.

CONCLUSION

For the foregoing reasons, we reverse the judgment of the trial court denying Integrity’s motion to stay and hereby order that the proceedings below be stayed pending the resolution of the parties’ arbitration action. All costs in this appeal are cast to the defendant, Mid South Contractors, LLC.

REVERSED AND RENDERED.

      . Although copies of the discovery requests filed by Mid South do not appear in the record before us, counsel for both parties acknowledge that Mid South did file the requests. Counsel also acknowledged that both sides had provided answers to the discovery filed.


source: Caselaw Access Project

author: FITZSIMMONS, J.

license: Public Domain

text:
    STATE of Louisiana v. Bennie Kane JOHNSON
    No. 2003 KA 0150.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Honorable J. Phil Haney, District Attorney, Thomas C. Senette, Assistant District Attorney, Franklin, Counsel for Appellee State of Louisiana.
    Bertha Hillman, Thibodaux, Counsel for Defendant/Appellant Bennie Kane Johnson.

      Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   FITZSIMMONS, J.

The defendant, Bennie Kane Johnson, was charged by bill of information with one count of simple burglary of an inhabited dwelling (count I), a violation of La. R.S. 14:62.2, and one count of possession of cocaine (count II), a violation of La. R.S. 40:967C. Pursuant to a plea agreement for a total sentence of thirteen years at hard labor on counts I and II, the State of Louisiana agreed not to institute habitual offender proceedings against the defendant, and the defendant pled guilty as charged on counts I and II. The plea agreement also established that there would be a hearing to determine whether the court would impose the sentences for the instant offenses to run concurrently with, or consecutively to, the sentence remaining on an aggravated burglary offense for which the defendant was on parole at the time of the instant offenses. The trial court reserved to the defendant the right to appeal the latter issue if the court decided in favor of consecutive sentences.

On count II, the defendant was sentenced to four years at hard labor. On count I, the defendant was sentenced to nine years at hard labor, including one year without benefit of probation, parole, or suspension of sentence. Additionally, the court ordered that the four-year sentence for possession of cocaine, was to run consecutively to any previously imposed sentences, including the sentence imposed under St. Mary Parish Docket # 133,262 (the defendant’s aggravated burglary conviction). The nine-year sentence for simple burglary was to run consecutively to the four-year sentence for possession of cocaine. The defendant moved for reconsideration of sentence, but the motion was denied. He now appeals, designating one assignment of error. We affirm the convictions and sentences.

FACTS

Due to the defendant’s guilty pleas, there was no trial in this matter; thus, no trial testimony concerning the facts of the offenses exists. At the Boykin hearing, | ah owe ver, the state set forth the following factual basis for the charges, which the defendant acknowledged was true.

On March 13, 2002, Ms. Benita Prevost (Prevost) was in the bathroom of her residence in Franklin getting ready to brush her teeth. Prevost was disturbed by “a noise” and her dog’s barking. When she investigated the disturbance, she came face-to-face with the defendant who was wearing a dark-colored, hooded sweat suit. The defendant ran out of the back door and out of the back yard of Prevost’s home. Thereafter, Prevost discovered her purse was missing. The purse had contained Prevost’s cell phone and other personal items.

The defendant was seen running across Hospital Avenue through the old St. Mary Bank (now Regions Bank) parking lot in the direction of the Gum Street apartments. It was learned that the defendant was living in “apartment 2” of 1513 Gum Street, and he was found by the police in bed at that address. The victim’s cell phone was also recovered from the bed. Two rocks of crack cocaine were recovered from the dresser in the bedroom where the defendant was discovered. Certain personal items belonging to the victim and a ‘crack pipe’ were recovered from the closet. Additionally, the victim’s purse, her identification, and her credit cards were recovered from a garbage bag in the pantry of the defendant’s residence.

EXCESSIVE SENTENCE

In his sole assignment of error, the defendant contends the trial court erred in denying the motion to reconsider a constitutionally excessive sentence. He argues, under the facts and circumstances of the instant case, that it is excessive for him to have to serve his sentences consecutively to, rather than concurrently with, the sentence imposed earlier on the earlier offense (aggravated burglary offense). The defendant further argues that the trial court’s imposition of sentence failed to give adequate consideration to the sentencing guidelines of La.C.Cr.P. art. 894.1.

| ¿Louisiana Code of Criminal Procedure Article 894.1

The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La.C.Cr.P. art. 894.1B. The trial court need not recite the entire checklist of article 894.1, but the record must reflect that it adequately considered the criteria. La.C.Cr.P. art. 891.4C. In light of the criteria expressed by article 894.1B, a review for individual excessiveness should consider the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962.

Constitutional Excessiveness

Article I, section 20, of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Id. Generally, a sentence is considered excessive if it appears to be grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, the sentence is so disproportionate as to shock one’s sense of justice. Id. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at pp. 10-11, 797 So.2d at 83.

Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation, or suspension of sentence, nor for more than twelve years. La. R.S. |s14:62.2. On count I, the defendant was sentenced to nine years at hard labor, including one year without benefit of probation, parole, or suspension of sentence.

Any person who knowingly or intentionally possesses a controlled dangerous substance, as classified in Schedule II (with exceptions inapplicable here), shall be imprisoned with or without hard labor for not more than five years, and, in addition, may be sentenced to pay a fine of not more than five thousand dollars. La. R.S. 40:967C(2). On count II, the defendant was sentenced to four years at hard labor.

Additionally, the court ordered that the imposed sentences were to run consecutively to one another and consecutively to the sentence imposed under St. Mary Parish Docket # 133,262. In sentencing the defendant, the court indicated it had considered the information presented at the sentencing hearing, as well as the sentencing guidelines of La.C.Cr.P. art. 894.1. The court noted that: the defendant had a long criminal history and had been involved in criminal activity for an extended period of time; the defendant was on parole at the time he committed the instant offenses, which indicated he was not a good candidate for probation; there was an undue risk that, during a suspended sentence, the defendant would commit another crime; any sentences less than the sentences the court intended to impose would deprecate the seriousness of the crimes; the defendant had been persistently involved in similar offenses as shown by his criminal history; and none of the mitigating circumstances of La.C.Cr.P. art. 894.1 applied in the defendant’s case.

A thorough review of the record reveals the trial court adequately considered the criteria of article 894.1 and did not manifestly abuse its discretion in imposing the sentences herein. See La.C.Cr.P. art. 894.1 B(21), La.C.Cr.P. art. 894.1 A(l), La. C.Cr.P. art. 894.1 A(3), and La.C.Cr.P. art. 894.1 B(12). Further, the sentences imposed were not grossly disproportionate to the severity of the offenses, |fiand thus, were not unconstitutionally excessive. The instant offenses and the aggravated burglary offense for which the defendant was on parole when he committed the instant offenses were not based on the same act or transaction. Nor did the instant offenses and the aggravated burglary constitute parts of a common scheme or plan. Thus, absent express direction from the trial court that some or all of the sentences for the instant offenses and the sentence for the aggravated burglary were to be served concurrently, the sentences were to be served consecutively. La.C.Cr.P. art. 883.

Additionally, as a result of plea bargaining in the instant case, the defendant avoided the possibility of sentencing enhancement under the habitual offender law, La. R.S. 15:529.1. A defendant’s reduced penalty exposure as a result of plea bargaining is a valid factor for consideration in imposing sentence. See State v. Lanclos, 419 So.2d 475, 478 (La.1982).

This assignment of error is without merit.

CONVICTIONS AND SENTENCES AFFIRMED.


author: PETTIGREW, J. McCLENDON, J.,

text:
    POSTLETHWAITE AND NETTERVILLE, APAC v. ROYAL INDEMNITY COMPANY. Postlethwaite and Netterville, APAC v. Royal Indemnity Company, APAC.
    Nos. 2003 CA 0063, 2002 CW 2162.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.
    Rehearing Denied Jan. 5, 2004.

      David S. Rubin, Richard F. Zimmerman, Jr., Randal J. Robert, Baton Rouge, for Plaintiff-Appellee Postlethwaite and Net-terville, APAC.
    Michael P. Mentz, Alayne R. Corcoran, Metairie, for Defendant-Appellant Royal Indemnity Company.
    Before: PETTIGREW, DOWNING and McClendon, jj.
   PETTIGREW, J.

The instant suit involves various issues concerning professional liability coverage procured by plaintiff, Postlethwaite and Netterville, APAC (“P & N”), from defendant, Royal Indemnity Company (“Royal”). Following a hearing on cross-motions for summary judgment, the trial court rendered partial summary judgment in favor of P & N, finding that P & N had timely exercised its rights to an extended reporting period endorsement and that Royal was obligated to provide P & N with a defense in connection with malpractice claims made against P & N in a separate proceeding. For the reasons set forth below, we affirm in part, reverse in part, and remand.

FACTS AND PROCEDURAL HISTORY

In September 2000, P & N, a professional accounting firm located in Baton Rouge, Louisiana, purchased professional liability insurance coverage from Royal. Royal issued an “Accountants & Consultants Professional Liability Policy” (“Royal Policy”) to P & N, bearing policy number RZD391992. According to the Royal Policy, the policy period was “from 9/15/00 to 9/15/01 At 12:01 A.M. Standard Time.” The Royal Policy, which was purchased by P & N through Louisiana Companies, Inc. (“Louisiana Companies”), was a “claims made policy” designed to provide coverage to P & N for damages and associated defense expenses resulting from an act, error or omission, or personal injury arising out of the performance of professional services. The Royal Policy provided coverage for claims made against P & N and reported to Royal during the policy period. According to the record, prior to the expiration of the Royal Policy, a decision was made not to renew the coverage through Royal, but rather to procure P & N’s professional liability insurance coverage through Kemper Insurance Companies (“Kemper”). This policy was also a “claims made policy” that extended coverage to P & N from “09/15/01 TO 09/15/03.”

As is the case with most professional liability policies, the Royal Policy included certain terms and provisions that gave P & N the right, for an additional premium, to have an extended reporting period endorsement (“ERP”) issued by Royal, extending the time during which claims could be reported. According to the Royal Policy, P & N could exercise its right to the ERP by (1) requesting it within sixty days of the end of the 14policy period; (2) having paid all premiums due for the policy at the time of the request; and (3) promptly paying when due the additional premium for the endorsement. Once exercised, the ERP provided coverage for claims for “acts, errors, or omissions committed before the end of the Policy Period.” Moreover, during an ERP, coverage under the Royal Policy applied “as excess over any valid and collectible insurance available under policies in force after such [ERP] starts.”

On October 15, 2001, Union Planters Bank, N.A. (“Union”) filed a Request for Review of Claims against P & N before the Society of Louisiana Public Accountants, seeking institution of a public accounting review panel pursuant to La. R.S. 37:109, et seq. The Union claim alleged certain acts, errors, and omissions by P & N in connection with audit services that P & N had performed for one of Union’s commercial borrowers, Commercial Capital Holding Corporation (“CCHC”), and further alleged that Union detrimentally relied on said audit services in connection with defaulted loans made to CCHC. P & N was first notified that it had been named as a defendant in connection with the Union claim on October 30, 2001. P & N immediately notified Louisiana Companies of the Union claim and forwarded a copy of the claim by facsimile transmission. On the same day, Louisiana Companies faxed correspondence to Royal’s claims department notifying it of the Union claim. Thereafter, on November 14, 2001, CCHC filed a claim against P & N in the Nineteenth Judicial District Court, raising allegations similar to those raised in the Union claim. On the same date, counsel for P & N delivered correspondence to Royal, through Louisiana Companies, providing Royal with a second written notice of the Union claim, giving notice of the recently filed CCHC claim, and demanding that Royal provide P & N with a defense.

On November 14, 2001, P & N exercised its right to the ERP for an additional one year period as afforded under the Royal Policy. According to the record, P & N tendered a check to the Louisiana Companies on November 14, 2001, made payable to Royal, in the amount of $41,850.00, representing the additional premium for the ERP endorsement. On that same date, Louisiana Companies forwarded correspondence by facsimile and regular mail to Jorgensen & Company (“Jorgensen”), Royal’s managing | .^general agent, advising Jorgensen that P & N had elected to exercise its right to the ERP for a period of one year and that the premium for same would be forwarded by overnight mail. On November 17, 2001, Jorgensen sent correspondence to Louisiana Companies, acknowledging that it had received the written request for the ERP on November 14, 2001, at 1:58 p.m., but advising that based on the provisions of the Royal Policy, the request was not timely and that Royal would likely not provide P & N with the ERP. By letter dated November 21, 2001, Royal advised Jorgensen that it was returning P & N’s premium check, noting that it was “unable to process the requested ERP ... due to the fact the exercise period [had] expired.” A copy of this correspondence was subsequently forwarded to Louisiana Companies and P & N on November 26, 2001.

Royal’s refusal to issue the requested ERP to P & N prompted the instant suit by P & N. In a petition filed December 14, 2001, P & N sought the following relief: (1) a declaratory judgment that P & N timely exercised its right to the ERP afforded under the Royal Policy; (2) an order requiring Royal to issue P & N an ERP for a period of one year from the end of the original policy period; (3) a declaratory judgment that Royal has a duty to provide P & N with a defense and indemnity in connection with the claims filed against it; (4) a declaratory judgment that Royal has breached its duties of good faith and fair dealing to P & N in its refusal to issue an ERP; and (5) an order requiring Royal to pay all general and special damages, costs, penalties, and attorney fees resulting from said breach.

On June 13, 2002, P & N filed a motion for partial summary judgment against Royal, seeking judgment declaring that P & N timely exercised its right to the ERP afforded under the Royal Policy, thus requiring Royal to provide P & N with a defense and issue an ERP for a period of one year. Attached to this motion for partial summary judgment were the following exhibits: (1) a statement of uncontested facts; (2) the affidavit of Fernie Wood, Jr., Vice President of Louisiana Companies; (3) a copy of the Royal Policy; (4) a copy of P & N’s premium check in the amount of $41,850.00 dated November 14, 2001; (5) copies of the various letters concerning P & N’s decision to |fiexercise its right to the ERP in the Royal Policy; and (6) the affidavit of Randal J. Robert, counsel of record for P & N, with copies, attached thereto, of the pleadings that served as the basis for the claims filed against P & N by Union and CCHC.

In response to P & N’s motion for partial summary judgment, Royal filed a cross-motion for summary judgment on July 19, 2002, along with its opposition to P & N’s motion. In support of the argument that it owed no obligation to P & N to provide coverage or a defense in the underlying lawsuits, Royal submitted the following: (1) a statement of uncontested material facts; (2) a copy of the Royal Policy; (3) the deposition of Fernie Wood, Jr.; (4) the deposition of Ralph J. Stevens, administrative director of P & N; and (5) copies of the various letters that were also submitted by P & N in support of its motion for partial summary judgment.

On August 5, 2002, the trial court heard arguments on the motion for partial summary judgment filed by P & N and Royal’s cross-motion for summary judgment. After considering the allegations contained in the motions and the evidence submitted in support thereof, the trial court granted P & N’s motion for partial summary judgment, finding that P & N timely exercised its rights to the ERP, ordering Royal to issue an ERP for the period extending from September 15, 2001 at 12:01 a.m. to September 15, 2002 at 12:01 a.m., and ordering Royal to provide P & N with a defense in connection with the claims made by Union and CCHC. The court further denied Royal’s cross-motion for summary judgment.

Following the August 5, 2002 hearing on the motions, P & N submitted a proposed judgment and a motion to designate the judgment as final for purposes of appeal. Royal objected to the terms of the proposed judgment and to the designation of the judgment as final, arguing that P & N’s motion for partial summary judgment did not include the issue of Royal’s duty to defend and that the trial court had not made a specific determination that Royal owed P & N a defense in the underlying claims. Royal alleged that “whether or not P & N timely exercised its option to purchase the ERP is, in and of itself, not determinative of coverage or Royal’s alleged obligation to provide a defense.” The motion to designate the judgment as final proceeded to hearing before |7the trial court on August 23, 2002, at which time the motion was granted by the trial court. A judgment in accordance with the court’s findings was signed on August 27, 2002. It is from this judgment that Royal has appealed, presenting the following issues for our review:

1) Whether the trial court erred, as a matter of law, in granting P & N’s Partial Motion for Summary Judgment on the issue of the ERP where, under the clear and unambiguous language of the policy, as well as plaintiffs own admissions, P & N did not timely request the optional ERP?
2) Whether the trial court erred, as a matter of law, in failing to grant Royal’s Cross-Motion for Summary Judgment and in refusing to enforce the Royal policy as written where plaintiff did not request the ERP, as required under the policy, “within Sixty (60) days of the end of the Policy Period?”
3) Whether the trial court erred, as a matter of law, in holding that Royal is obligated to provide a defense in the underlying malpractice action despite the fact that there has been no judicial determination regarding coverage and plaintiffs petition unambiguously excludes coverage under the Royal “claims made” policy?

Prior to the court’s ruling on the motion to designate the judgment as final, Royal filed an “Exception Of No Cause Of Action Or, Alternatively, Motion For Summary Judgment Regarding Plaintiffs Claim For Defense Costs Incurred In The Underlying Lawsuit.” Therein, Royal claimed that P & N had no cause of action against it for defense costs, because only the insurer currently defending the malpractice suit (Kemper) could claim reimbursement of those costs through subrogation. The matter proceeded to hearing on September 16, 2002, at which time P & N contended that Royal was attempting to re-litigate the duty to defend issue, which had already been decided by lathe trial court. Royal responded that even if there was a duty to defend, P & N was not the proper party to claim costs of the defense as those had been assumed by P & N’s primary insurer, Kemper. After hearing argument from the parties, the judge opined that the duty to defend issue was on appeal, thus, divesting the trial court of jurisdiction on that issue. Based on this lack of jurisdiction, the court concluded, “I’m going to deny the exception of no cause at this time.” A judgment in accordance therewith was signed on September 23, 2002.

Following the court’s September 23, 2002 judgment, Royal filed an application for supervisory writs with this court, requesting that the trial court’s judgment improperly denying its “Exception Of No Cause Of Action Or, Alternatively, Motion For Summary Judgment Regarding Plaintiffs Claim For Defense Costs Incurred In The Underlying Lawsuit” be reversed or, alternatively, that the writ application be consolidated with the instant appeal. On March 10, 2003, this court ordered that the writ application bearing docket number 2002 CW 2162 “be referred to the same panel to which 2003 CA 0063 is assigned” and denied the motion to consolidate based on the action taken with regard to the writ application. Thus, the issues raised in Royal’s writ application are also before us for review.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Johnson v. Evan Hall Sugar Co-op., Inc., 2001-2956, p. 3 (LaApp. 1 Cir. 12/30/02), 836 So.2d 484, 486. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. art. 966(B). Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. Code Civ. P. art. 966(A)(2); Thomas v. Fina Oil and Chemical Co., 2002-0338, pp. 4-5 (La.App. 1 Cir. 2/14/03), 845 So.2d 498, 501-502.

|flIn determining whether summary-judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 2002-1072, p. 5 (La.4/9/03), 842 So.2d 373, 377. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Foreman v. Danos and Curole Marine Contractors, Inc., 97-2038, p. 7 (La.App. 1 Cir. 9/25/98), 722 So.2d 1, 4, writ denied, 98-2703 (La.12/18/98), 734 So.2d 637.

In its first two assignments of error, Royal contends the trial court committed manifest error in granting P & N’s motion for partial summary judgment and in denying Royal’s cross-motion for summary judgment on the issue of the ERP. Arguing that the terms of the Royal Policy were clear, express, and unambiguous, Royal alleges that P & N’s attempt to purchase the ERP on November 14, 2001, was not timely as a matter of law. Moreover, Royal asserts that La. Civ.Code art. 1784, the article relied on by P & N in its motion for partial summary judgment and in the instant appeal, is inapplicable because the policy period at issue is marked by a specific date and time. Royal argues that because there is no ambiguity in the Royal Policy regarding the policy period, there is “no justification for referring to the general articles on interpretation of a contract [such as Article 1784].”

In response, P & N alleges that because the time period within which to exercise the option to purchase an ERP in the Royal Policy is not marked by a specific date, but rather a period of time, Article 1784 is applicable. P & N contends that the event that marks the beginning of the term is the end of the policy period, i.e., September 15, 2001, and thus, the sixty day period within which to exercise the ERP did not begin to run until September 16, 2001, and included the entirety of the sixtieth day, November 14, 2001. Therefore, P & N asserts, it timely exercised its option to purchase the ERP when it notified Royal, through Louisiana Companies, and tendered its premium Inpayment on November 14, 2001. Following our review of the record and the applicable substantive law, we agree with P & N.

Louisiana’s rule of law regarding the computation of time periods when a term for performance is not fixed is set forth in La. Civ.Code art. 1784 as follows:

When the term for performance of an obligation is not marked by a specific date but is rather a period of time, the term begins to run on the day after the contract is made, or on the day after the occurrence of the event that marks the beginning of the term, and it includes the last day of the period.

Moreover, it is well settled that in computing the time prescribed by law within which to perform an act, only whole days, not fractions thereof, are considered. McIntire v. Carpenter, 202 So.2d 297, 299 (La.App. 4 Cir.), writ denied, 251 La. 57, 202 So.2d 661 (1967). See also Housing Authority of Town of Lake Arthur v. T. Miller & Sons, 239 La. 966, 981, 120 So.2d 494, 500 (1960).

As previously indicated, P & N could exercise its option to purchase the ERP at issue by (1) requesting it within sixty days of the end of the policy period; (2) having paid all premiums due for the policy at the time of the request; and (3) promptly paying when due the additional premium for the endorsement. The Royal Policy also contained a separate endorsement that affected various aspects of the Royal Policy, including the portion concerning the ERP. According to the language in this endorsement, the right to have the ERP issued would terminate sixty days after the end of the policy period unless written notice of the election to exercise the ERP, together with the additional premium due for such ERP, was received by Royal or its authorized agent within the sixty-day period.

In the instant case, the term for exercising the option to purchase the ERP was within sixty days of the end of the policy period, i.e., within sixty days of September 15, 2001. Thus, pursuant to the dictates of Article 1784 and the authorities cited above, this term began to run on the following day, September 16, 2001, and included the entirety of the sixtieth day, November 14, 2001. Accordingly, P & N timely exercised the option to purchase the ERP at issue. Having so determined, we must next consider whether P & N complied with the additional requirement set forth in the endorsement 11, discussed above, i.e., was the premium due for the ERP received by either Royal or its authorized agent within the sixty-day period.

Royal argued below that Louisiana Companies was not its appointed agent for the purpose of procuring the professional liability policy at issue. Thus, Royal alleged, even if the term for exercising the ERP was from September 16, 2001 through November 14, 2001, P & N’s attempt to purchase the ERP was still untimely as the request for the ERP and the additional premium due was not received by either Royal or its authorized agent within the sixty-day period.

As correctly pointed out by P & N below, La. R.S. 22:1118(E), as it existed at the time of the events giving rise to this litigation, statutorily mandated an agency relationship for the purposes of the collection of premiums. It provided as follows:

(1) Any insurer which issues or delivers a policy or contract of insurance pursuant to the application or request of an agent or broker who is not authorized to represent said insured as an agent shall be deemed to have authorized such agent or broker to act on insurer’s behalf as payment of any premium on such policy or contract of insurance. The payment to an agent or broker shall be payment to the insurer with all resultant obligations and duties.
(2) This Subsection establishes any agency relationship only for the matter of collection of premiums specifically referred to herein.

The jurisprudence interpreting La. R.S. 22:1118 and its predecessor, La. R.S. 22:1180, makes it clear that the purpose of this statute is to protect the insured. It mandates a statutory relationship of agency between the insurance agent and the insurer as to the collection of premiums. See, DeSoto Parish School Board v. Insurance Company of North America, 572 So.2d 310, 314 (La.App. 2 Cir.1990), writ denied, 575 So.2d 368 (La.1991); New Orleans Property Development, Ltd. v. Aetna Casualty and Surety Company, 93-0692, pp. 2-3 (La.App. 1 Cir. 4/8/94), 642 So.2d 1312, 1318 (on rehearing).

There is testimony in the record before us that Louisiana Companies was not an appointed agent for Royal with regard to the professional liability policy procured for |i;.P & N. Nonetheless, according to Fernie Wood, Jr., Vice President of Louisiana Companies, he could not recall ever advising P & N that he did not have authority to bind the requested coverage with Royal. In fact, Mr. Wood indicated he had previously accepted premium payments from P & N, deducted the commission earned for placing the coverage with Royal, and then remitted the premium payments to either Royal or its managing general agent, Jorgensen. Moreover, Ralph J. Stevens, administrative director of P & N, testified that P & N had conducted business with Louisiana Companies for approximately twenty years and that it was his understanding that Mr. Wood was an agent for Royal and had authority to bind insurance for Royal. Based on our review of the instant record, and in light of the provisions of La. R.S. 22:1118(E), we conclude that P & N’s tender of the premium check to Louisiana Companies on November 14, 2001, was binding on Royal. Thus, P & N timely exercised its option to purchase the ERP at issue. We find no error in the trial court’s judgment granting P & N’s motion for partial summary judgment, denying Royal’s cross-motion for summary judgment, finding that P & N timely exercised its option to purchase the ERP, and ordering Royal to issue an ERP to P & N for the period extending from September 15, 2001 to September 15, 2002. Accordingly, those portions of the August 27, 2002 judgment are hereby affirmed.

DUTY TO DEFEND

In assignment of error number three, Royal contends the trial court erred in holding that it was obligated to defend P & N in the underlying malpractice action as there had been no judicial determination regarding the coverage issue. Royal further alleges that regardless of whether P & N timely exercised its option to purchase the ERP or timely reported the malpractice claim, there was still no coverage under the “claims made” policy because the claim against P & N was not made during the policy period.

In its August 27, 2002 judgment, the trial court found as follows with regard to Royal’s duty to defend P & N:

5. In connection with the judgment granting the P & N Motion [for Partial Summary Judgment], and as prayed for in the Motion, Royal is hereby ordered to provide P & N with a defense in connection with the claims made against P & N by [Union] and [CCHC].

|13As previously indicated, during an ERP under the Royal Policy, coverage applied “as excess over any valid and collectible insurance available under policies in force after such [ERP] starts.” Effective September 15, 2001, P & N procured professional liability coverage through Kem-per. Thus, under the terms of the Royal Policy, any coverage under the ERP at issue was excess and would only come into play if the coverage under the Kemper policy was completely exhausted. There is simply no evidence in the record to suggest that the coverage afforded P & N under the Kemper policy was exhausted. Although the trial court ordered Royal to provide P & N with a defense, there was no specific finding by the court concerning the issue of coverage. Accordingly, it was premature for the trial court to address the issue of the duty to defend. This portion of the August 27, 2002 judgment is reversed, and the matter is remanded to the trial court for a determination of whether there is coverage under the Royal Policy.

ROYAL’S WRIT APPLICATION

The issues raised by Royal in its writ application in docket number 2002 CW 2162 are interrelated with the duty to defend issue raised by Royal on appeal. Based on our review of Royal’s writ application and the evidence submitted in support of same, we agree with the trial court’s finding that it was divested of jurisdiction regarding the duty to defend issue because the issue was on appeal. Thus, the trial court was correct, at the time, in its decision to deny Royal’s exception raising the objection of no cause of action. However, based on our decision above concerning the duty to defend issue, we grant the instant writ application, reverse the September 23, 2002 judgment, and remand.

CONCLUSION

For the above and foregoing reasons, that portion of the August 27, 2002 judgment ordering Royal to provide P & N with a defense in connection with the malpractice claims filed against P & N by Union and CCHC is reversed, and the matter is remanded to the trial court for a determination of whether there is coverage under the Royal Policy. In all other respects, the judgment is affirmed. Further, Royal’s writ application under docket number 2002 CW 2162 is granted, and the trial court’s | ^judgment dated September 23, 2002, is reversed. The matter is remanded to the trial court for further proceedings not inconsistent with this opinion. All costs associated with this appeal are assessed equally against Royal and P & N.

AUGUST 27, 2002 JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. WRIT GRANTED; SEPTEMBER 23, 2002 JUDGMENT REVERSED AND REMANDED.

McCLENDON, J., concurs and assigns reasons.

McCLENDON, J.,

concurring.

LSA-C.C.P. art. 1915(B) clearly requires an “express determination” that there is no just reason for delay, or a statement analogous thereto, which clearly expresses that there is no just reason for delay. Therefore, under the limited and specific facts of this case, I agree that this is an appealable judgment, and respectfully concur.

      . Royal has also assigned error to the trial court’s decision to designate the judgment as final and appealable under La.Code Civ. P. art. 1915(B). We note that this court has previously held that a partial summary judgment on the issue of an insurer’s duty to defend is properly appealable under Article 1915. See Dennis v. Finish Line, Inc., 93-0638, pp. 3-4 (La.App. 1 Cir. 3/11/94), 636 So.2d 944, 946, writ denied, 94-1652 (La. 10/7/94), 644 So.2d 636; Treadway v. Vaughn, 633 So.2d 626, 627-628 (La.App. 1 Cir.1993), writ denied, 94-0293 (La.3/25/94), 635 So.2d 233. In the instant case, the trial court stated that after considering the factors enumerated in Van ex rel. White v. Davis, 2000-0206 (La.App. 1 Cir. 2/16/01), 808 So.2d 478, it found the judgment at issue should be designated as final and decided by the appellate court "because so much litigation is hinging on this.” The court continued, noting as follows: "If there's no coverage, if I’m wrong and there is no coverage under this policy, then there would be really an economic detriment to your client [P & N], I think it's in your very best interest that this matter be resolved by the courts of appeal.” Pursuant to Article 1915(B), the trial court designated the judgment as final and made an express determination that there was no just reason for delay. The court also provided oral reasons for its determination. Nonetheless, this court is not bound by the trial court’s certification of the partial summary judgment as final for the purpose of an immediate appeal. Rather, we must review the record de novo to determine finality. See Van ex rel. White v. Davis, 2000-0206 at 5, 808 So.2d at 483. After a de novo review of the record before us, we agree with the trial court that this is a final appealable judgment and find no error in the trial court's designation as such.

      . Louisiana Revised Statutes 22:1118(E), formerly La. R.S. 22:1180, was repealed effective January 1, 2002, by 2001 La. Acts No. 158, § 2, and has been replaced by La. R.S. 22:1150(A). The text of La. R.S. 22:1150(A) is nearly identical to that of its predecessor.


author: PARRO, J.

text:
    STATE of Louisiana v. Paul T. CLARKE
    No. 2003 KA 0129.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Doug Moreau, R. Christopher Nevils, Office of District Attorney, Baton Rouge, for Appellant State of Louisiana.
    Frank Sloan, Louisiana Appellate Project, Mandeville, for Defendant-Appellee Paul T. Clarke.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   PARRO, J.

The defendant, Paul T. Clarke, was charged by bill of information with one count of criminal conspiracy to commit armed robbery, in violation of LSA-R.S. 14:26 and 64, and eight counts of armed robbery, in violation of LSA-R.S. 14:64. One of the armed robbery counts was later dismissed. The defendant pled not guilty and subsequently filed a motion to suppress his confession. The trial court granted the defendant’s motion to suppress.

Later, the defendant informed the trial court that he wished to waive his right to a trial by jury. The trial judge advised the defendant of the rights he was waiving, accepted his waiver of a jury trial, and then, according to the minutes, recused herself. One week later, before the same judge, the defendant indicated he wished to withdraw his request to waive a jury trial. The trial judge granted the defendant’s motion seeking to rescind his waiver of his right to a trial by jury and then vacated her prior order recusing herself. The state objected to the trial judge’s vacating of her prior order recusing herself and filed this appeal.

FACTS

In granting the defendant’s motion to suppress his confession, the trial court recognized it had made determinations about the credibility of the defendant and some police officers. When the defendant later sought to waive his right to a jury trial, the trial court noted, “I will also advise you that because this court heard the motion to suppress and because this court made some credibility determinations based on that motion to suppress, the court does not feel that it should hear the trial on the merits. And if Mr. Clarke chooses to waive a jury, the court will recuse itself.” The trial court then further questioned the defendant regarding whether he was knowingly and voluntarily waiving his right to a jury trial and, satisfied with the defendant’s responses, allowed the defendant to waive his right to a jury trial. The court stated, “Then I will allow you to waive your right to a jury trial. This court will recuse itself and order that | ¡¡this matter be randomly sent to the clerk’s office for random allotment to another section of [the] court.”

The minutes from the foregoing hearing, held September 30, 2002, state:

Counsel for the accused, advised the Court that the accused wished to waive his right to a jury trial. The Court advised the accused of his rights to a trial by jury. For oral reasons assigned, the Court recused itself from this matter and ordered that this matter be sent to criminal records for reallotment.

Another hearing was held a week later, on October 8, 2002. Defense counsel indicated the defendant wanted to withdraw his waiver of his right to a trial by jury. The trial court noted that it had been advised by defense counsel the day after the September 30th hearing that the defendant had a “change of heart,” so the trial court had not sent the case to be reallotted to another judge. The court noted:

The reason the court recused itself is because the court had ruled on a motion to suppress which involved the evaluation and credibility of the witnesses. And because Mr. Clark[e] was requesting that he have a bench trial, the court did not feel that under those circumstances this court should preside over the case because I’ve already made some credibility determinations. However, if there’s a jury trial, this court makes no credibility determinations. That is strictly up to the jury, and so it’s not necessary. Had Mr. Clark[e] not requested a bench trial, this court never would have recused itself from the matter. The only reason the court recused itself on its own prerogative ... was because Mr. Clark[e] was requesting that this court be the trier of fact.

The state then asked the trial court if it was seeking “on its own motion to rescind its recusal.” The trial court responded, in pertinent part:

Well, in any event I’m just simply saying that it may not need to be randomly reallotted in view of the fact — the only reason the court recused itself is because it was going to be a bench trial. I’ve already heard some of the evidence. I’ve already made some credibility determinations, and the court felt under those circumstances it should recuse itself and order the case randomly reallot-ted.
If the court is going to allow Mr. Clark[e] to reinstate his right to a jury trial, the court sees no reason to recuse itself, and I will vacate the order recus-ing myself, and I see no reason to allot it to another section to delay it even further.
I will allow Mr. Clark[e] to exercise his right to a jury trial, and the court will vacate its previous decision, if you will, recusing itself ....

L ANALYSIS

The state argues that regardless of whether the case was reassigned to another judge, once the trial court recused itself on its own motion, it was without authority to take any further action in the case, including any action to rescind the order of recusal. The defendant asserts that the trial court never, in fact, recused itself as evidenced by the transcript of the hearings and the lack of a signed recusal order in the record.

Under LSA-C.Cr.P. art. 672, “[a] judge may recuse himself, whether a motion for his recusation has been filed by a party or not, in any case in which a ground for recusation exists.” According to LSA-C.Cr.P. art. 673, a judge has full power and authority to act “until he is recused, or a motion for his recusation is filed.” (Emphasis added). In State v. Price, 274 So.2d 194 (La.1973), the Louisiana Supreme Court observed:

[Louisiana Code of Criminal Procedure articles 673 and 676 are] based upon similar provisions in the Code of Civil Procedure, and interpretation of the latter provisions is pertinent here. It has long been recognized in our civil procedure that once a judge is recused ... he has no power to act (except to appoint the proper person to sit ad hoc when the law provides for such an appointment). Any action taken by a recused judge is an absolute nullity ....
In considering the particular action taken by a recused judge, our courts have made no distinction between ministerial and judicial acts. We have determined that no action may be performed by the recused judge. The theory of recusation is based upon public policy, for it is applied not only for the protection of the litigants but generally to see that justice is done by an impartial court. It is, therefore, for the sake of appearance to the general public as well as protection against the acts themselves that a judge be prohibited from any activity in a case in which he has been recused.

Price, 274 So.2d at 197 (Emphasis added and citations omitted). Thus, in Price, the state’s appeal was dismissed as untimely, since it had sought and obtained an extension of time in which to file its appeal from a judge who had been recused in the case.

Applying Price in a civil case, this court held in Revere v. Strain, 02-0254 (La.App. 1st Cir.12/31/02), 837 So.2d 137, that a judge who had recused herself could not sign an order that she had orally sustained prior to the recusal. This court noted that “the power and authority for [one] to act as judge in a particular case for any and all reasons ceases at the moment of recu-sal.” Revere, 837 So.2d at 138. See also Arcement v. Cruz, 02-2533 (La.App. 4th Cir.12/20/02), 836 So.2d 314, 315 (“Once a I.judge recuses himself or herself from hearing a case, the judge is thereafter precluded from hearing that case ever again.”) Given the foregoing, it is clear that if a trial judge recuses herself from a case, the trial judge may not take any further action in that case, including that of rescinding her prior order of recusal.

Turning to the record, we initially note that there is no signed order of recu-sal. This is of no moment, however. Neither Article 672 nor 673 requires that a judge sign an order when he recuses himself on his own motion. More significantly, LSA-C.Cr.P. art. 673 provides that a judge has full power and authority to act “until he is recused.” It would be nonsensical to interpret Article 673 to provide that a judge who has orally recused himself on his own motion is not “recused” for purposes of Article 673 and can take action in the case up until an order is signed. As noted in Price, the theory of recusation is based on public policy considerations regarding the appearance of impartiality as well as the protection of litigants. These considerations are implicated as soon as the trial judge has orally announced he is recusing himself. Price, 274 So.2d at 197.

We further disagree with the defendant’s argument that transcripts in the record do not support the state’s assertion that the trial judge recused herself. On September 30, 2002, the trial court informed the defendant that “if [the defendant] chooses to waive a jury, the court will recuse itself.” The defendant then proceeded to waive his right to a jury trial. The court Immediately responded that it “will recuse itself and order that this matter be ... sent” for random allotment to another section of the court. The minutes from this hearing note that the “Court recused itself from this matter.”

On October 8, 2002, the trial court said several times that it had “recused itself,” that “this court never would have recused itself’ had the defendant not requested a bench trial, that the court wanted to “rescind its recusal,” and that the court wanted to “vacate the order recusing [itself].” The minutes from this hearing state that the trial court “vacated it’s [sic] order to recuse itself.”

Given the foregoing, there is simply no other conclusion to draw from the transcripts of the two hearings and the corresponding minute entries but that the trial judge recused herself from the case on September 30, 2002. As such, she had no | fipower or authority to act in the case, and any further action taken by her on October 8, 2002, was an absolute nullity.

CONCLUSION

The trial judge recused herself ex pro-prio motu on September 30, 2002. Her power and authority to act in this case for any and all reasons ceased at the moment of recusal. Therefore, the trial court’s granting of the defendant’s motion to reconsider his prior waiver of his right to trial by jury, as well as the trial court’s vacating of its own recusal on October 8, 2002, were without authority. This case is remanded to the Nineteenth Judicial District Court for random reallotment to another section of the court as provided by law.

REVERSED AND REMANDED WITH INSTRUCTIONS.

      . This ruling was later reversed by a writ panel of this court, which held the confession admissible. State v. Clarke, 02-0128 (La.App. 1st Cir.2/25/02) (unpublished writ action), writ denied, 02-0927 (La.8/30/02), 823 So.2d 942.


author: KUHN, J.

text:
    Ernestine GRIFFIN v. SHELTER INSURANCE CO. and Sally A. Kemp
    No. 2002 CA 2628.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Linda Lynch, Eulis Simien, Jr., Baton Rouge, Counsel for Plaintiff/Appellant Earnestine Griffin.
    Myron A. Walker, Jr., Baton Rouge, Counsel for Defendants/Appellees Shelter Insurance Co. and Sally A. Kemp.
    Before: WHIPPLE, KUHN, and MCDONALD, JJ.

      . The correct spelling of plaintiff s first name is Eamestine.

   KUHN, J.

Plaintiff-appellant, Earnestine Griffin, appeals a judgment dismissing her liability claims against defendants, Shelter Insurance Co. (Shelter Insurance), and its insured, Sally Kemp. For the reasons that follow, we affirm.

In August 2000, Kemp, a 78-year old woman suffering from lung cancer who was totally disabled from a stroke which had left her partially paralyzed, hired Griffin to care for her in the house. Averring entitlement to damages for the bodily injuries she sustained as a result of Kemp’s negligence, Griffin subsequently filed this lawsuit against Kemp and her insurer, Shelter Insurance.

Shelter Insurance filed a motion for summary judgment, which the trial court sustained. From the subsequently-rendered judgment dismissing her liability claims against Shelter Insurance and Kemp by summary judgment, Griffin appeals.

Appellate courts review summary judgments de novo under the same criteria followed by the trial court. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966A(2); Lee v. Grimmer, 99-2196, p. 3 (La.App. 1st Cir.12/22/00), 775 So.2d 1223, 1225. But the motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, | -¡together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966B.

Shelter Insurance asserts that the undisputed facts fail to establish that Kemp owed a duty to Griffin. Thus, the insurer maintains that as a matter of law Kemp is not liable to Griffin for the injuries she sustained, and the judgment correctly dismissed Griffin’s liability claims. We agree.

In a tort case, among the questions that must be answered in a proper analysis are: (1) were any duties owed by the respective parties? And (2) were the risk and the harm within the scope of protection afforded by any owed duty that was, in fact, breached? See Vinccinelli v. Musso, 2001-0557, p. 3 (La.App. 1st Cir.2/27/02), 818 So.2d 163, 165, unit denied, 2002-0961 (La.6/7/02), 818 So.2d 767.

Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like circumstances. But whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties. Bowman v. City of Baton Rouge/Parish of East Baton Rouge, 2002-1376, pp. 5-6 (La.App. 1st Cir.5/9/03), 849 So.2d 622, 627. Duty is a question of law. Simply put, the inquiry is whether the plaintiff has any law — statutory, jurisprudential, or arising from general principles of fault — to support her claim. Id. Where no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. See Burton v. Landry, 602 So.2d 1013 (La.App. 1st Cir.1992).

The determination of whether a particular risk of harm is reasonable is also a matter wed to the facts of the case. In general, it is improper to characteiize a risk as unreasonable without considering the surrounding circumstances. Vinccinelli, 2001-0557 at p. 5, 818 So.2d at 166. A court must determine whether the risk is unreasonable vis-a-vis the particular plaintiff involved. In doing so, it is appropriate to consider any contractual obligations owed by the plaintiff to the defendant with respect to the particular risk that resulted in harm. A court should also consider any specialized or superior knowledge the plaintiff may have. The status of the plaintiff is a factor to be considered in the fact-specific determination of whether a risk is unreasonable. Id.

The following undisputed facts have been established from Griffin’s deposition testimony and the affidavits submitted by Shelter Insurance in support of its motion for summary judgment. Kemp was a very small, petite woman who weighed less than 100 pounds. She was confined to a wheelchair, which she was unable to move about by herself. And Kemp could not walk without the assistance of another. Griffin was hired to do things that Kemp was unable to do, which included washing, cooking, cleaning the house, as well as dressing Kemp every morning, fixing her meals, taking her to doctors, counting her medicine, and helping her exercise.

In conjunction with doctors’ visits, Griffin accompanied Kemp to physical therapy sessions, where the two were instructed how to move Kemp from her wheelchair into an easy chair. But on October 13, 2000, while Griffin assisted |fiKemp from her wheelchair into the easy chair, Kemp grabbed Griffin’s arm — in derogation of the instructed procedure provided by Kemp’s physical therapist — causing immediate pain in Griffin’s back and leg. Griffin testified that Kemp frequently lost her balance during the approximate four-month period that she cared for the elderly lady and admitted that she knew Kemp might fall during the transfer from the wheelchair to the easy chair.

Thus, the deposition and affidavits establish that Griffin had the contractual duty to take care of Kemp, and this specifically included assisting the disabled, elderly lady from her wheelchair into an easy chair. The risk of Kemp grabbing Griffin’s arm while she was transferring from the wheelchair to the easy chair was clearly one of the types of risks that Griffin was contractually obligated to guard against. Because of Griffin’s special status and job responsibilities in this case, the risk of injury from Kemp grabbing her caretaker’s arm as the elderly lady transferred from the wheelchair into an easy chair was not unreasonable vis-a-vis this particular plaintiff. Under the facts and circumstances, Kemp simply did not owe a duty to Griffin to guard against the particular risk that gave rise to the caretaker’s injuries.

Thus, because Griffin has sustained damnum absque injuria, i.e., damages without injury in the legal sense, Kemp owed no duty to Griffin for this particular risk of harm. And we conclude the trial court properly granted summary judgment. Accordingly, the trial court’s judgment dismissing Griffin’s liability claims against Sally A. Kemp and Shelter Insurance Co. is affirmed. Appeal costs are assessed against Earnestine Griffin.

AFFIRMED.

WHIPPLE, J., concurs.

      . The judgment, dismissing only appellant’s liability claims and expressly preserving for trial any medical payments claims plaintiff may have against Shelter, does not dispose of the entire case. See La. C.C.P. art. 966E. As such, it is a partial summary judgment, which does not constitute a final judgment unless it is so designated by the court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915B(1). In this case, based on the language set forth in the judgment and the nature of the claim, we find the trial court duly complied with the requirements of La. C.C.P. art. 1915B(1) and, therefore, this appeal is properly before us.

      . Kemp died shortly after this lawsuit was instituted by Griffin.


author: CARTER, C.J.

text:
    NORTH AMERICAN SPECIALTY INSURANCE COMPANY v. EMPLOYERS REINSURANCE CORPORATION, Brunson Bonding and Insurance Agency, Inc., and T. Reid Methvin.
    No. 2002 CA 2649.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 26, 2003.

      Albert Dale Clary, Jennifer J. Vosburg, Jamie Hurst Watts, Baton Rouge, for Plaintiff-Appellant, North American Specialty Ins. Co.
    Joseph L. McReynolds, New Orleans, for Defendants-Appellees, Employers Reinsurance Corp. and Brunson Bonding & Ins. Agency, Inc.
    Before: CARTER, C.J., PARRO, and GUIDRY, JJ.
   CARTER, C.J.

This appeal arises out of an action originally filed by North American Specialty Insurance Company (NAS) alleging that T. Reid Methvin (Methvin), an employee of Brunson Bonding & Insurance Agency, Inc. (Brunson), had issued numerous construction bonds without obtaining prior approval from NAS as required by an agency agreement between NAS and Brunson. After learning about the unauthorized bonds, NAS accepted and retained payment of the premiums from Brunson on all of the unauthorized bonds issued by Meth-vin. Thereafter, approximately twelve of the unauthorized bonds resulted in defaults, allegedly causing significant losses when NAS was forced to pay claims on the defaulted bonds.

NAS brought suit on June 27, 1988, against Brunson, Methvin, and Brunson’s errors and omissions insurer, Employers Reinsurance Corporation (Employers). The facts were uncontroverted; however, the legal effect of the facts was sharply disputed. The parties submitted depositions, exhibits, and briefs to the trial court on the issue of liability for the first part of a bifurcated trial. Approximately fourteen years after the suit was filed, the trial court rendered judgment on May 15, 2002, in favor of Brunson and Employers. The trial court held that NAS had tacitly ratified the unauthorized acts of Methvin by accepting the premiums on the bonds from Brunson with full knowledge of Methvin’s actions.

NAS filed a motion for new trial on the ratification issue, but the motion was denied. NAS’s petition was dismissed, and the judgment was designated as final for purposes of appeal. NAS seeks reversal on appeal, arguing that the trial court committed legal error when it held that acceptance of the premiums for the | .^unauthorized bonds amounted to a tacit ratification of Methvin’s unauthorized actions. NAS also urges that the trial court erred in concluding that NAS’s tacit ratification had exonerated Brunson and Employer’s from liability for Methvin’s unauthorized acts. For the following reasons, we affirm the trial court’s judgment.

In its extensive written reasons for judgment, the trial court set forth a recitation of the facts, which we adopt herein as our own:

T. Reid Methvin, “Methvin”, was an employee of Brunson Boding (sic) and Insurance Agency, Inc., “Brunson”, which was an agent for North American Specialty Insurance Company, “NAS”. NAS was engaged in the business of underwriting performance or construction bonds. As such NAS had entered into an agency relationship with Brun-son to issue the performance bonds providing Brunson with the NAS forms and materials. As part of the agency agreement, Brunson was to seek prior approval from NAS before writing any bonds and once approval was obtained Brunson was to issue the bond, collect the premium and remit the premium minus Brun-son’s fee to NAS. It is undisputed that during the course of the relationship between NAS and Brunson, that (sic) Methvin issued numerous unauthorized performance bonds. After it was discovered that unauthorized bonds had been issued, an audit was performed in an attempt to determine the number of the unauthorized bonds issued. Any premiums collected on these bonds were remitted to NAS.

A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Schultz v. Hill, 02-0885, p. 4 (La.App. 1 Cir. 2/14/03), 840 So.2d 641, 643. However, a legal error can occur when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Schultz, 840 So.2d at 644.

The trial court’s legal conclusion that NAS had tacitly ratified the unauthorized acts of Brunson’s employee by accepting the premiums on the unauthorized bonds is based on its application of LSA-C.C. art. 1843, which provides as follows:

| ¿Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority.
An express act of ratification must evidence the intention to be bound by the ratified obligation.
Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefít of that obligation. (Emphasis added.)

The trial court reviewed all of the evidence and concluded that NAS had full knowledge of Methvin’s unauthorized issuance of the bonds. The trial court also found that NAS accepted the premiums in full from Brunson for all of the unauthorized bonds, under the same terms as if the bonds had been originally authorized. The trial court stressed the fact that NAS took no action to attempt to rescind the bonds or to notify or advise the purchasers of the bonds that Methvin was not authorized to issue the bonds. The trial court’s ruling did not focus on the intent of NAS, because NAS did not expressly indicate its intent to ratify the unauthorized bonds. Instead, essential to the trial court’s finding was the fact that NAS accepted the benefit of the premiums on all of the bonds after full knowledge that the bonds were issued without authority. Our review of the entire record on appeal convinces us that the trial court was not manifestly erroneous or clearly wrong in its factual conclusions. We also find no legal error in the trial court’s application of the law to its factual conclusions.

An unauthorized act of an agent may be ratified by the subsequent action or inaction of the principal upon being apprised of the facts. Louisiana Consumer’s League, Inc. v. City of Baton Rouge, 431 So.2d 35, 37 (La.App. 1 Cir.), writ denied, 435 So.2d 431 (La.1983). It is well settled that ratification amounts to a substitute for prior authority. Sunray Services, Inc. v. City of Minden, 29,260, p. 5 (La.App. 2 Cir. 2/28/97), 690 So.2d 970, 973, writ not considered, 97-1140 (La.6/20/97), 695 So.2d 1343; Ledoux v. Old Republic Life Insurance Company, 233 So.2d 731, 735 (La.App. 3 Cir.), writ refused, 256 La. 372, 236 So.2d 501 (1970). In Ledoux, 233 So.2d at 736, an insurer was held to have tacitly ratified the unauthorized acts of its agents when the insurer made no attempt to repudiate the authority of the agents nor to return the | spremiums earned for the issuance of insurance coverage in excess of the agents’ authority. To find ratification of an unauthorized act, the facts must indicate a clear and absolute intent to ratify the act, and no intent will be inferred when the alleged ratification can be explained otherwise. Ratification will occur when the principal, knowing of the obligation, does not repudiate it, but accepts its benefits. Bamber Contractors, Inc. v. Morrison Engineering & Contracting Co., Inc., 385 So.2d 327, 331 (La.App. 1 Cir.1980). Further, when a principal (such as NAS) ratifies the unauthorized acts of its agent, the ratification discharges the agent from personal liability. Ledoux, 233 So.2d at 737.

NAS argues that its acceptance of the premiums can be otherwise explained as an attempt to mitigate its losses and that it could not rescind the bonds once they had been issued. We disagree that NAS’s acceptance of the premiums was a mitigation of damages. Not all of the unauthorized bonds resulted in losses. When NAS accepted the premiums for the bonds, it did not know if any of the bonds would result in defaults. If a default had never occurred on any of the bonds, then obviously NAS would not have suffered any losses. The premium for the bond is simply the price paid for the bond. The premium cannot be considered a mitigation of damages, because it is accepted before any defaults are anticipated or actually occur.

We find that the acceptance and retention of the premiums for all of the unauthorized bonds, including the bonds that did not result in losses from defaults, clearly evidences an acceptance of a benefit, and therefore, NAS’s actions constitute a tacit ratification of the terms and obligations of the unauthorized bonds. NAS accepted the premiums in the same manner and in the same amount as if they had originally approved and authorized the bonds. NAS was willing to knowingly accept the full benefit of the premiums; therefore, NAS must be willing to accept the full liability from the risk that some of the bonds would result in losses. We also find it significant that the deposition testimony of NAS’s two corporate officers clearly indicates that NAS accepted an additional benefit in the form of contractor indemnity agreements for each of the | ^unauthorized bonds. Thus, NAS had a remedy available to it by enforcing the indemnity agreements to attempt to recover its losses, just as it would have done had the bonds been originally approved and authorized.

NAS argues that it had no choice but to accept the premiums, because it could not lawfully rescind the bonds once they had been issued. However, we believe that NAS did have other options if its goal was to repudiate the authority of Brunson’s employee. See Town of Ponchatoula v. National Indemnity Co., 395 So.2d 401, 402 (La.App. 1 Cir.1981), where a bonding company took reasonable steps to afford notice that some of its bonds had been forged, by publishing the pertinent information in various newspapers. NAS could have opted to advise or notify the innocent bond purchasers that the bonds had been issued without authority. Alternatively, NAS could have repudiated the unauthorized acts, refused to accept the benefit of the premiums and indemnity agreements for the unauthorized bonds, and then sought recourse against its agent, while still honoring the obligations in the bonds. Instead, NAS chose to accept and retain the benefits with full knowledge that the bonds had been issued without authority. This voluntary acquiescence in Methvin’s unauthorized conduct and acceptance of the benefits flowing from the issuance of the bonds leads us to the conclusion that NAS tacitly ratified the unauthorized bonds as if they had been originally approved and authorized.

It is evident that NAS took a calculated risk that the unauthorized bonds would not result in defaults. NAS retained the benefits and advantages from the issuance of the unauthorized bonds. After knowingly accepting the benefits, NAS cannot now attempt to repudiate only the unauthorized bonds that resulted in losses. See Francis v. Bartlett, 121 So.2d 18, 21 (La.App. 2 Cir.1960). In other words, NAS cannot hold its agent liable for the unauthorized bonds that resulted in losses while at the same time receive benefits in the form of premiums and indemnity agreements. The tacit ratification legally bound NAS as if the |7bonds were originally issued with its full authority. NAS’s action against its agent is therefore barred, because the agent is no longer responsible after the ratification. See Ledoux, 233 So.2d at 737.

We affirm the trial court’s judgment in all respects. Costs of this appeal are to be paid by plaintiff-appellant, North American Specialty Insurance Company (NAS).

AFFIRMED.

      . The record reflects that service was requested for Methvin, but it is unclear whether he was actually served. Methvin never filed an answer, and the case proceeded to trial against the other two named defendants, Brunson and Employers.

      . The motion for new trial was granted in part to delete a portion of the decree ordering that Brunson was entitled to unpaid commissions due on premiums previously collected and paid to NAS. However, that portion of the judgment is not at issue in this appeal.

      . The record reflects that NAS actually took this approach on one of the unauthorized bonds, and the bond purchaser chose to return the unauthorized bond and to purchase a replacement bond.