author: |,JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Romalis A. HARTWELL.
    No. 03-KA-1214.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant.
    Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Terry M. Boudreaux, Appellate Counsel, Thomas J. Butler, Counsel of Record on Appeal, Cameron Mary, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   |,JAMES L. CANNELLA, Judge.

The Defendant, Romalis Hartwell, appeals his two armed robbery convictions and sentences. We affirm and remand.

On September 4, 2002, the Defendant was charged with two counts of the armed robbery of Fay Phillips (Phillips) and Tena Foster (Foster), in violation of La.R.S. 14:64. He pled not guilty and filed a motion to suppress the identification. On June 4, 2003, the motion was denied. The next day, trial commenced and a 12 person jury found the Defendant guilty as charged. The Defendant filed a motion for new trial, which was denied. After the Defendant waived sentencing delays, he was sentenced by the trial judge to 35 years imprisonment at hard labor on each count, without benefit of parole, probation or suspension of sentence, to be served concurrently. Pursuant to La.R.S. 14:64.3, the judge imposed on each count an additional five years imprisonment, without benefit of parole, probation or suspension of sentence, to be served concurrently with each other, but consecutively to the 35-year sentence.

On the afternoon of June 21, 2002, Foster and Phillips were working at the Golden Beauty Supply on Ames Boulevard in Marrero, Louisiana when a man | ¡¡entered the shop. Foster, the manager, testified that the man, whom she had never seen before, entered the shop after she let him in with the store’s automatic buzzer. After the other customers left the store, the Defendant put his hand under his shirt and approached Foster. He pulled a sun visor down over his face, said this was a robbery and to “Get on the f-floor.” The Defendant struck the cash register until it opened. He removed approximately $200 to $300 in' cash from the register, but wanted to know where the rest of the money was kept. Foster told him it was in the floor safe. The Defendant became enraged, placed a gun to Foster’s head and demanded the money from the safe. He said that “there was supposed to be a safe in the back.” Foster said that the only safe she knew of was the floor safe, to which she did not have keys. The two women were ordered to kneel on the floor with their hands behind their heads. Foster testified that she believed they were about to die and that she prayed as she knelt. Eventually, Foster heard the door open and close. At that point, she discovered that the robber had left the store. Foster testified that both ladies’ purses, earrings, jewelry, a “lot of the clippers and everything off the back shelf’ had been stolen.

Detective John Carroll of the Jefferson Parish Sheriffs office went to the scene and met with Phillips and Foster. Foster described the perpetrator as wearing a blue Hawaiian shirt, shorts, a blue “rag” on his head, and a sun visor. The detective canvassed the neighborhood for suspects, but did not find anyone matching the description.

Troy Millro (Millro) testified that the Defendant approached him on the day of the robbery and asked if he wanted to buy some clippers that were still in the package. Millro said that he declined because he did not have the money. The Defendant asked him to drive him to someone else’s house, where that person was going to purchase the clippers. Millro agreed, but told the Defendant that he wanted to bring his fiancée, Tiffany Carter (Carter), to their house first. When the |4three reached the house, the Defendant told Millro that he needed to go into Millro’s backyard. Millro followed the Defendant to an area where Millro and Carter stored clothes. The Defendant pulled out a plastic bag containing credit cards, Medicaid cards, and other personal effects. The Defendant then told Millro that he had “robbed them b-.”

After Millro found another bag with similar contents, he took the two bags inside and told Carter what had just happened. She then telephoned Foster’s home and spoke to Foster’s son, who said that Foster was at the Golden Beauty Supply where she worked. Carter and Millro went to the shop and returned Foster’s personal effects. Foster copied the license plate of Carter’s car and gave it to Detective Carroll.

After further investigation, Detective Carroll discovered that the car was registered to Carter. Carter and Millro then went to the detective bureau where they related the events that led to the return of Foster’s belongings. Millro also identified the Defendant’s photograph from a photographic lineup as the person who attempted to sell him the clippers. Thereafter, Detective Carroll went to the Defendant’s residence and he consented to a search of his house. The Defendant’s girlfriend, Ro-chella Sommersville (Sommersville), consented to a search of her vehicle that was parked at the residence. During the automobile search, Detective Carroll found a blue Hawaiian shirt in the trunk.

According to Detective Carroll, both Foster and Phillips positively identified the Defendant from a photographic lineup. At trial, Foster positively identified the Defendant as the perpetrator and the Hawaiian shirt as the one worn by the Defendant during the robbery.

The Defendant sought to establish an alibi defense. He claimed that, on the day of the robbery, after work at Avondale, Sommersville picked him up from [ fiwork at approximately 3:00 p.m. and they went to see a movie. However, thé show they wanted to see was sold out, so they went to visit Mends, Keshawn Harris (Harris) and Timothy Vicks (Vicks). All of these witnesses testified that the Defendant and Sommersville were at the Harris’ and Vicks’ apartment from approximately 4:00 p.m. until 6:80 p.m.

Sommersville testified that she had worked at the Golden Beauty Supply until the end of May 2002. She quit the job because she discovered that she was pregnant. Sommersville said that the owner told her she could have her job back after the baby was born. However, Sommers-ville also testified inconsistently that she found out on June 21, 2002, the day of the robbery, that she was pregnant. According to Sommersville, it was this discovery that prompted a clear memory of the day’s events. The Defendant testified that Som-mersville found out that she was pregnant a few days before June 21, 2002. The Defendant said he had been to the Golden Beauty Supply many times when Som-mersville worked there.

On appeal, the Defendant contends that the State failed to present sufficient evidence to uphold the convictions, and that the trial judge erred in denying the defense motion for new trial. He also contends that the sentences are excessive.

INSUFFICIENT EVIDENCE

The Defendant first argues that the evidence was insufficient to support the conviction because the State failed to prove his identity as the perpetrator beyond a reasonable doubt.

The standard for appellate review of the sufficiency of evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); State v. Johnson, 01-1362, pp. 7-8 (La.App. 5th Cir.5/30/02), 820 So.2d 604, 608, writ denied, 02-2200 (La.3/14/03), 839 So.2d 32.

| fiThe rule as to circumstantial evidence is “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. This is not a separate test from the Jackson standard, but rather provides a helpful' basis for determining the existence of reasonable doubt. Ultimately, all evidence, both direct and circumstantial, must be sufficient to support the conclusion that the Defendant is guilty beyond a reasonable doubt. State v. Wooten, 99-181, pp. 4-5 (La.App. 5th Cir.6/1/99), 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00), 753 So.2d 208. When the key issue in a case is the Defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification in order to meet its burden of proof. State v. Neal, 00-0674, p. 11 (La.6/29/01), 796 So.2d 649, 658, cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002); State v. Payne, 01-742, p. 7 (La.App. 5th Cir.12/26/01), 806 So.2d 768, 771.

The Defendant here was- convicted of two counts of armed robbery, which is defined by La.R.S. 14:64 as follows:

“A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

In support of his argument, the Defendant asserts that no physical evidence, such as fingerprints, linked him to the crime. Detective Carroll acknowledged that the fingerprints lifted from the crime scene did not match either the Defendant or Millro. However, the officer testified that it was unusual for fingerprint evidence to connect a perpetrator to the crime. As an example, Detective Carroll stated that he had not obtained suspect identifications out of the more than 200 cases that he had been assigned in the previous year. Detective Carroll explained that in two of |7the 200 cases, positive matches were found, but turned out to be customers, not suspects.

The thrust of the Defendant’s argument is that the jury should not have believed the testimony of Foster or Millro. According to the Defendant, Millro’s testimony was incredible because he lied to Detective Carroll and the jury. The Defendant contends that Millro denied that Detective Carroll had read him his rights when questioned, yet Detective Carroll testified that he had read both Millro and Carter their rights. Detective Carroll acknowledged that he had initially considered both of them to be suspects, but that they were not under arrest. Rather, he had informed them that they were under investigation for the armed robbery. Additionally, Detective Carroll testified that he began believed that Millro was telling the truth and excluded him as a suspect in the robbery.

The Defendant claims that the jury should not have believed Foster because she did not notice his distinguishing characteristics, such as his gold teeth and his “goatee.” However, Foster positively identified the Defendant from a photographic lineup and at trial. She stated that she had the opportunity to view the Defendant before the robbery while he looked at items in the store. Further, Foster was certain that she had correctly identified the Defendant as the perpetrator. She also identified the shirt found in the Defendant’s girlfriend’s car as the one worn by the Defendant.

The Defendant also claims that the jury should have believed his alibi witnesses. However, it is noted that Sommersville’s testimony was internally inconsistent because she claimed that she had left Golden Beauty Supply in May 2002 because she was pregnant, but testified that she discovered she was pregnant on June 21, 2002, the day of the robbery. The Defendant’s and Sommersville’s testimony also conflicted. She claimed that she discovered she was pregnant on |8the day of the robbery, while the Defendant claimed it was a few days before the robbery.

The trier of fact makes credibility determinations, and may, within the bounds of rationality, accept or reject the testimony of any witness. Thus, the reviewing court may impinge on the fact-finder’s discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Harris, 02-1589, p. 4 (La.5/20/03), 846 So.2d 709, 713, citing, State v. Mussall, 523 So.2d 1305, 1310 (La.1988). By returning the guilty verdict, the jury obviously believed the testimony of the State’s witnesses. After reviewing the record, we find that rational jurors, viewing the evidence in the light most favorable to the prosecution, could have concluded beyond a reasonable doubt that the Defendant was guilty as charged. Thus, we find that the evidence was sufficient to convict the Defendant.

NEW TRIAL

The Defendant next contends that the trial judge erred in denying his motion for a new trial, because the trial judge improperly admitted inadmissible hearsay by Detective Carroll that Phillips had posh tively identified him in a lineup. According to the Defendant, the only evidence that the Defendant robbed Phillips was this inadmissible hearsay testimony. Phillips did not testify at trial.

The grounds for a new trial are provided in La.C.Cr.P. art. 851, in pertinent part:

The motion for a new trial is based on the supposition that an injustice has been done the Defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the Defendant, shall grant a new trial whenever:
(1) The verdict is contrary to the law and the evidence; • •
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error;
19(5) The court is of the opinion that the ends of justice would be served by the granting of a new trial, although the Defendant may not' be entitled to a new trial as a matter of strict legal right.

Hearsay is an oral or written assertion, other than one made by the declarant while testifying at the present trial, offered in evidence to prove the truth of the matter asserted. La.C.E. art. 801 C. Hearsay evidence is not admissible except as otherwise specified in the Louisiana Code of Evidence or other legislation. La.C.E. art. 802. Testimony that a witness positively identified the Defendant as the perpetrator in a lineup is inadmissible hearsay when the witness does not testify at trial. See, State v. Jones, 94-2244 (La.8/31/94), 642 So.2d 151.

Detective Carroll’s testimony that Phillips had positively identified the Defendant from the photographic lineup meets the definition of hearsay. The record does not disclose the reason that Phillips did not testify, although in closing argument, the prosecutor mentioned to the jury that Phillips had been subpoenaed, but that the State could not force her to testify. In any event, the Defendant did not object to Deputy Carroll’s testimony at any time before the verdict.

As a general rule, hearsay that is not objected to becomes substantive evidence. State v. Dabney, 02-934, p. 6 (La.4/9/03), 842 So.2d 326, 330; State v. Cho, 02-274, p. 17 (La.App. 5th Cir.10/29/02), 831 So.2d 433, 447, writ denied, 02-2874 (La.4/4/03), 840 So.2d 1213. However, if the sole evidence of guilt rests entirely on unreliable, inadmissible hearsay evidence to which there was no objection, the evidence may be insufficient to convict. See, State v. Lubrano, 563 So.2d 847 (La.1990).

In this case, Detective Carroll’s hearsay testimony did not constitute the sole evidence that the Defendant committed the armed robbery. Foster testified that the Defendant accomplished the robbery with a ‘ gun and took purses belonging to ImFoster and Phillips. Further, Millro testified that the Defendant told him that he had “robbed them b-.” Additionally, after the Defendant made his remark Mill-ro found behind his house personal belongings in two separate bags, one of which contained Foster’s effects.

In State v. Arbuthnot, 367 So.2d 296 (1979), the Louisiana Supreme Court reversed the Defendant’s conviction on the basis of a police officer’s hearsay testimony regarding a non-testifying witness’ positive identification of him. Although another eyewitness identified the defendant, the Louisiana Supreme Court reasoned that the hearsay description of the non-testifying witness improperly bolstered the state’s identification testimony by its only identification witness. Id. at 298-299. The present case is distinguishable from Arbuthnot. Millro’s testimony constituted independent evidence of the Defendant’s guilt apart from Foster’s testimony.

Additionally, the erroneous admission of hearsay testimony may be harmless error and is therefore subject to a harmless error analysis. See, State v. Wille, 559 So.2d 1321, 1331 (La.1990). The test for harmless error is whether the guilty verdict actually rendered was surely unattributable to the error. State v. Johnson, 94-1379, p. 14 (La.11/17/95), 664 So.2d 94, 100; Sullivan v. Louisiana, 508 U.S. 275, 279, 113-S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993).

In Wille, the Louisiana Supreme Court determined that an officer’s hearsay testimony regarding two accomplices’ statements that inculpated the defendant was harmless error when it was cumulative of other evidence including the defendant’s confession. Wille, 559 So.2d at 1328-1333. Considering the unwavering testimony of Foster, combined with Millro’s testimony, we find that Detective Carroll’s hearsay testimony was harmless error, as the “verdict actually rendered was surely unattributable” to the hearsay testimony.'

J^EXCESSIVE SENTENCE

The Defendant next contends that his sentences are constitutionally excessive because he is a first offender and because the victims were not hurt during the encounter.

Both the United States and Louisiana constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. Amend. 8; La. Const. of 1974, Art. I, § 20; State v. Richmond, 98-1015, p. 8 (La.App. 5th Cir.3/10/99), 734 So.2d 33, 38. A sentence is generally considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Richmond, 98-1015 at 8, 734 So.2d at 38; State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. However, the sentence will not be set aside absent a showing of manifest abuse of the trial court’s wide discretion to sentence within statutory limits. Richmond, 98-1015 at 8, 734 So.2d at 38. The trial judge is afforded wide discretion in determining a sentence and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. La.C.Cr.P. art. 881.4 D; Richmond, 98-1015 at 8, 734 So.2d at 38.

The penalty for armed robbery is imprisonment at hard labor for not less than ten years and not more than 99 years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64 B. Prior to sentencing, the State invoked the firearms sentencing provision of La.R.S. 14:64.3. That statute provides for an additional five years of imprisonment at hard labor without benefit of parole, probation or suspension of sentence to be served consecutively to the sentence when an offender commits an armed robbery with a firearm.

Before imposing sentence, the trial judge considered that the Defendant was a first felony offender and was 25 years old at the time of sentence. The judge also | ^observed that the Defendant’s actions were “horrible,” and recalled Foster’s testimony that she was afraid she would die during the robbery. Thereafter, the trial judge sentenced the Defendant to two concurrent terms of- 35 years at hard labor without benefit of parole, probation, or suspension of sentence, plus an additional five years without benefits to be served concurrently with each other, but consecutively to the 35 year sentence.

Similar sentences for armed robbery have been upheld in other cases. In State v. Augustine, 555 So.2d 1331, 1332 (La.1990), the Louisiana Supreme Court found that a prison term of 40 years for an 18-year-old first offender convicted of armed robbery was not constitutionally excessive. In State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4, the Louisiana Supreme Court stated that sentences of 35 to 50 years have been found to be acceptable for first offenders convicted of armed robbery, citing Augustine and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d 49, 50.

Armed robbery is a serious offense against the person. See, State v. Francois, 01-807, p. 5 (La.App. 5th Cir.4/10/02), 817 So.2d 213, 216. Considering the circumstances surrounding the robbery and that this sentence is in the range approved by the Louisiana Supreme Court for first armed robbery offenders, we find that the sentence is not excessive.

PATENT ERROR

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

The' record reflects that the minute entry for the final day of trial is dated June 4, 2003, rather than June 5, 2003. Generally, when there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, the triál court is ordered to correct the minutes and the case is remanded for that purpose.

| ^Accordingly, the Defendant’s convictions and sentences are hereby affirmed. The case is remanded for correction of the minutes. . .

AFFIRMED AND REMANDED.

      . The record does not indicate whether Phillips’ belongings were also returned.

      . In Jones, the witness was deceased and the State sought to introduce his identification of the defendant through other observers at the lineup. The Louisiana Supreme Court held that the observers’ testimony was inadmissible hearsay and should be suppressed.


source: Caselaw Access Project

author: I,MARION F. EDWARDS, Judge.

license: Public Domain

text:
    In re In the Matter of Mary Brown TRAHAN.
    No. 03-CA-1002.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Richard T. Gallagher, Jr., New Orleans, LA, for Appellant.
    Harvey J. Godofsky, Metairie, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   I,MARION F. EDWARDS, Judge.

Appellant Mary Trahan appeals a judgment of the 24th Judicial District Court maintaining an Exception of Prescription in favor of appellee Harris M. Blackman, M.D. We affirm the granting of the exception, but remand the case for the reasons to follow.

Mrs. Trahan consulted Dr. Blackman, a dermatologist, on June 11, 1997, for a mole on her leg that was getting larger and changing color. She also informed Dr. Blackman that both her father and grandmother had skin cancer. Dr. Blackman examined her and determined that the mole was not skin cancer. There was no biopsy and no follow-up, and Dr. Blackman told her there was no reason to remove the mole.

On September 11, 2001, Mrs. Trahan consulted another dermatologist, Dr. Russo, about the mole. After performing a biopsy, Dr. Russo determined that the mole was skin cancer and removed the growth. Because of the delayed diagnosis, |3Mrs. Trahan alleges that her five-year survival rate dropped from a range of 96-99% to less than 50%.

Mrs. Trahan filed a Complaint with the Louisiana Patient’s Compensation Fund on March 8, 2002. On July 26, 2002, pursuant to La. R.S. 40-1299.47(D), Dr. Blackman filed a Petition for Subpoena Power in the district court and on August 19, filed his Exception of Prescription. In the Exception, Dr. Blackman alleged that the Complaint was filed beyond the three year prescriptive period designated in La. R.S.9:5628.

The hearing on the exception was continued once, on Mrs. Trahan’s request for time to find an expert witness. On the day prior to the second date set for the hearing, Mrs. Trahan filed a pleading entitled “Motion For Declaratory Judgment That LA. R.S. 9:5628 Is Unconstitutional,” along with another Motion to Continue the Exception, on similar grounds as the first. The trial court denied both motions. Following the trial on the exception, the Exception of Prescription was maintained, dismissing Mrs. Trahan’s claims. From this judgment she appeals.

Generally, the burden of proving that a suit has prescribed rests with the party pleading prescription. However, when the plaintiffs petition shows on its face that the prescriptive period has expired, the burden shifts to the plaintiff to demonstrate suspension or interruption of the prescriptive period, due to her lack of knowledge of the tortious act. The Statute expressly ties the running of its three-year prescriptive period to any medical “omission,” which can include the failure to give a proper diagnosis. In the present case, at the argument on the exception as in brief to this court, Mrs. Trahan conceded that her claim falls outside of the three year prescriptive period for the filing of malpractice claims under R.S. 9:5628. After review of her complaint filed with the Board, we agree and find thatL the trial court correctly granted the Exception of Prescription.

Nevertheless, Mrs. Trahan alleged in the trial court, as again she does before us, that R.S. 9:5628 is unconstitutional as applies to her. Specifically, she avers that the condition from which she suffers had a latency period of more than three years, and urges that the Louisiana Supreme Court has noted in dicta that in such cases, the prescriptive period may be unconstitutional. In the cited case, the court stated in a footnote:

This ruling by the Court does not address the constitutionality of La.R.S. 9:5628 as it applies to individuals with diseases that have latency periods in excess of three years. The court has basically declined to decide on this issue because it is not presently before it.

More recently, the Supreme Court has noted that it has left open the issue of the constitutionality of LSA-R.S. 9:5628 as it applies to bar an action by a person suffering from a disease with a latency period in excess of three years.

At the hearing on the exception, Mrs. Trahan made this argument in opposition to the exception. The court noted that the written opposition was filed the day prior to the trial, and that Mrs. Trahan’s second request for a continuance was not timely. The court further noted that it had not been presented with the opposition until the morning of trial. Nevertheless, the court determined that the key distinction in the latency cases cited by Mrs. Trahan was a condition not visible to the patient, and that in the present matter, the mole was visible.

As we read the record, it is apparent that the court determined the constitutional issue presented by Mrs. Trahan at the trial on the exception of prescription, and as it granted the exception, it effectively denied the request for declaratory judgment.

Prior to adjudicating the constitutionality of a statute of the state of Louisiana, the courts of appeal and the Supreme Court of Louisiana shall notify the attorney general of the proceeding and | ¡¡afford him an opportunity to be heard. The notice shall be made by certified mail. No judgment shall be rendered without compliance with the provisions of this Section; provided where the attorney general was not notified of the proceeding, the court shall hold adjudication of the case open pending notifieation of the attorney general as required herein.
La. R.S. 13:4448.
Our Supreme Court has held as follows:
Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized. The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. [Citations omitted].

Once the constitutionality of a statute is questioned, the attorney general must be notified by certified mail of the proceeding and, at his discretion, shall be allowed to represent the interest of the state. Here, while Mrs. Trahan did raise the issue in a Motion, it was tried as an opposition, the attorney general was not notified as required by La. R.S. 13:4448, and no hearing was had on the motion itself. The trial court therefore erred in considering the claim of unconstitutionality and to the extent that it determined the constitutional claim, its ruling, on that issue alone, is hereby vacated.

The constitutional question is not in the proper posture for our review. Pursuant to LSA-C.C.P. art. 2164, which permits appellate courts to remand cases when the interest of justice is served, we set aside the judgment on Dr. Blackman’s exception of prescription, and remand this matter to the trial court to allow Mrs. Trahan an opportunity to properly litigate the constitutional challenge.

|fiFor the foregoing reasons, the judgment granting the Exception of Prescription is set aside. The matter is remanded for further proceedings in accordance with this opinion. Costs of this appeal are taxed to each party for their pro rata share.

JUDGMENT SET ASIDE; REMANDED.

      . Jenkins v. Dyess, 35,923 (La.App. 2 Cir. 6/19/02), 821 So.2d 722, writ denied 2002-1984 (La. 11/8/02) 828 So.2d 1118.

      . Id.

      . Whitnell v. Silverman, 95-0112, p. 9 n. 13 (La. 12/06/96), 686 So.2d 23.

      . David v. Our Lady of the Lake Hosp., Inc., 2002-2675 (La.7/2/03), 849 So.2d 38.

      . Vallo v. Gayle Oil Co., Inc., 94-1238 (La. 11/30/94); 646 So.2d 859, 864-65.

      . La. R.S. 13:4448; Huber v. Midkiff, 2002-0664 (La.2/7/03), 838 So.2d 771; Jeter v. Shamblin 32,618 (La.App. 2 Cir. 2/1/00), 750 So.2d 521.

      .See e.g., David v. Our Lady of the Lake Hosp., Inc., supra.


author: I,THOMAS F. DALEY, Judge.

text:
    Rachel Uhl MOORE v. Christopher T. MOORE.
    No. 03-CA-1217.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Raymond C. Burkart, Jr., New Orleans, LA, for Defendant/Appellant.
    Don C. Gardner, Harahan, LA, for Plaintiff/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   I,THOMAS F. DALEY, Judge.

The defendant, Christopher Moore, has appealed the trial court’s judgment awarding spousal support. For the reasons that follow, we affirm.

FACTS:

Plaintiff, Rachel Uhl Moore (Rachel), and Christopher Moore (Christopher) were married'on August 12, 1995 in Louisiana. The couple established a matrimonial domicile in the United Kingdom, Mr. Moore’s native country, shortly after the marriage. The couple’s only child, Lucy, was born on March- 8, 2001. On September 19, 2001, Rachel moved back to Louisiana. Christopher came to Louisiana on December 17, 2001 and returned to the United Kingdom on December 30, 2001. On January 9, 2002, Rachel filed a Petition for Divorce alleging that she was free of fault in the breakup of the marriage and that Christopher had abandoned her. She also sought spousal support. Following a hearing on Api’il 3, 2002, Rachel was. awarded $700.00 per month interim spousal support. A judgment granting divorce was rendered on October 9, 2002. On ^February 19, 2003, a hearing was held to determine fault and permanent spousal support. At the conclusion of the hearing, the trial.judge took the matter under advisement. He then rendered judgment, without reasons, finding Rachel free from fault in the breakup of the marriage and awarding her permanent periodic spousal support in the amount of $700.00 per month. Christopher has appealed claiming the trial judge erred in finding Rachel was free from fault and entitled to support, and that the amount of support awarded is excessive.

FAULT:

Rachel testified that when she and Christopher married, they agreed to live in the United Kingdom for five years and then live in the United States. She testified that shortly after their marriage, they purchased a house in England.

Throughout the marriage, Christopher played soccer. Rachel testified that he played soccer every Saturday and he practiced or played soccer on Tuesdays and Thursdays. She explained that he frequently went to pubs after the games and came home intoxicated. Rachel testified that she went to many soccer games prior to the birth of their daughter, however, she only went to one game after the birth.

Rachel testified that she came to Louisiana- in September 2001 and expected Christopher to come shortly thereafter. She and Lucy moved into an apartment owned by her grandmother. Christopher came to visit for several days in October 2001. They spoke on the phone, but by December 2001, Rachel testified that Christopher was not talking to her because she “put too much pressure on him to come to the United States and he wasn’t ready.” She testified that several of her phone calls to Christopher went unanswered.

Rachel testified Christopher arrived on December 17, 2001 with a round trip ticket. She explained that Christopher told hér that he had fallen out of love with her and that they were mismatched. He complained that their sexual relationship Rwas not “up to par”, that she did not iron his clothes, take an interest in his work, or attend his soccer games. . Rachel testified that these revelations took her by complete surprise. She explained that she had always listened to Christopher talk about his work, that he never said he was unhappy, and had never complained about their sexual relationship. Rachel testified that she asked Christopher to go to a family friend who was a psychologist for marital counseling, but Christopher refused. Rachel explained that when Christopher left, she lost her best friend, her husband, and the father of her child and was devastated. At the time of the hearing, she was still unsure of exactly why he abandoned her.

•On cross-examination, Rachel denied giving Christopher an ultimatum stating that she was coming to the United States with or without him.

Rachel’s parents took the stand and testified that it always appeared that the couple had a happy marriage. Both Mr. and Mrs. Uhl testified that they spoke to Christopher before he left to go back to the United Kingdom, and begged him to stay in the United States to work on his marriage. Mrs. Uhl testified that she called Christopher’s mother to ask for help, but was told there was nothing she could do. When Mrs. Uhl suggested to Christopher that Rachel return to England with him, Christopher responded that he did not want to be married to Rachel any more. Mr. Uhl testified that he told Christopher on numerous occasions that he could help to get him a job in the family business.

Christopher testified that although he voiced concerns about moving to the United States, he did follow through on his commitment to do so. He explained that when Rachel told him that she was leaving with or without him, he began making plans to move. He explained that he knew that he would not be able to work in the same profession when he came to the United States because the laws and financial markets were different. He explained that he attended training to become a soccer coach so he could pursue such employment in Louisiana. He |5explained that when the couple shipped their belongings to Louisiana, he left behind a bedroom set because he moved in with his brother and he needed a place to sleep. Christopher explained that the cost to ship the bedroom set to the United States exceeded the value of the furniture.

Christopher testified that he was very frustrated by the infrequent sexual relations between him and Rachel. He stated that the sexual problems began at the end of 1997. He testified that he spoke to Rachel about this, but the problem remained unresolved.

Christopher testified that he came to Louisiana in October 2001 and stayed with Rachel in her grandmother’s apartment. He testified that he had difficulty sleeping because of a street light shining in through the bedroom window and that he asked Rachel to obtain curtains to block this light. He explained that when he returned, there were no curtains and that this was just an example of Rachel’s selfishness. He further expressed his displeasure at Rachel hiring a maid to clean the small apartment, when neither of them had jobs. They did not have a maid in England. Christopher denied that he told Rachel he no longer loved her. Rather, he explained that his love was not strong enough to keep the marriage together. Christopher explained his disappointment when he arrived in December 2001 and his mother-in-law, rather than his wife and daughter met him at the airport. He was further disappointed when he arrived at the apartment and Lucy was already asleep for the night.

Christopher testified that he played semi-professional soccer 40 weeks per year. He stated that he and Rachel argued frequently in the last year about his soccer. He explained that he worked from home and the couple took numerous trips, so he did not think soccer interfered in the relationship. Christopher explained that he did not want to go to the counselor as suggested by Rachel | (¡because the man was a family friend. Christopher did not deny that Rachel suggested returning to England with him, he simply stated “she didn’t.”

Christopher denied that he did not intend to remain in the United States when he arrived in December 2001. Rather, he explained that he quit his job, sold his house, and retrained for a soccer coaching job in the United States. He explained that he had blood tests and immunizations and obtained a visa as required to live in the United States. He further explained that he purchased a round trip ticket in December 2001 because it was less expensive than a one way ticket. Christopher testified that he came to the United States to work on a bad marriage. He hoped things would improve when he got here, but they got worse. He explained that on December 29, 2001 he became aware that Rachel had withdrawn $12,000.00 in funds from the only United States bank account that he had access to. He confronted Rachel about this, and told her that he did not love her and was leaving. He testified that she initially told him that she would move in with her parents and he could stay in the apartment. She then told him to get a hotel room. Christopher testified that he spent the night of December 29, 2001 in a hotel room.

Based on the testimony of the parties, Rachel Moore’s parents, and several of the couple’s friends, the trial judge determined that Rachel Moore was free from fault. Civil Code article 111 provides that a court may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage. The trial court is vested with vast discretion in determination of fault for the purposes of determining final support because this issue turns largely on evaluations of witness credibility. Goodnight v. Goodnight, 98-1892 (La.App. 3 Cir. 5/5/99), 735 So.2d 809. The trial court’s finding of fault will not be disturbed in .the absence of manifest error. Jones v. Jones, 35,502 (La.App. 2 Cir. 12/5/01), 804 So.2d 161.

17Rachel testified that the couple made plans to move to Louisiana in the fall of 2001. She proceeded with these plans, arriving in Louisiana with her, infant daughter in September 2001. She explained that when her husband arrived in December 2001, he told her he had fallen out of love with her and did not want to be married to her any longer. Rachel’s parents also testified that Christopher stated that he no longer wanted to be married to Rachel. Although Christopher denied that he told Rachel he no longer loved her on the night he arrived, he later testified that after he became aware that she had withdrawn money from a joint bank account, he told her he no longer loved her and he was leaving. He did not dispute that Rachel offered to accompany him back to England; rather, he merely stated that she did not go. While it is apparent from the testimony that there were problems in the marriage, the testimony supports the trial court’s finding that Rachel was free of fault in the breakup of the marriage for the purposes of support under Civil Code article 111. A spouse is not deprived of permanent support because he or she was not totally blameless in the marital discord. Goodnight, supra. We find that the testimony of Christopher that he told Rachel that he no longer loved her and was leaving, accompanied by Rachel’s parents testimony that they asked Christopher to stay and he stated that he no longer wanted to be married to Rachel, coupled with Christopher’s statement that he did not want Rachel to return to England to live with him, is sufficient evidence to support the trial judge’s finding that Rachel was free from fault in the breakup of the marriage. We now turn to the issue of support.

SUPPORT:

During the marriage, Rachel worked as a computer hardware and software purchaser for Polygram Records. She left this employment in March 2000 after having a miscarriage. Rachel testified that she is currently unemployed in order to 1 Rbe a stay-at-home mother. However, she acknowledged that Lucy spends 20 hours per week in day care.

Rachel testified that when she came to Louisiana, she moved into an apartment owned by her grandmother. She testified that she paid her grandmother $500.00 per month rent plus $270.00 in utilities. She explained that her parents had loaned her money to purchase a car and she had to pay them back at a cost of $361.00 per month. Although Rachel has an undergraduate degree in psychology and a master’s degree in business management, she is currently attending UNO in an attempt to obtain another degree. At the time of the hearing, she was taking one class in anthropology. While Rachel acknowledged the cost of tuition was $625.00 per semester, she claimed taking this one class actually cost $250.00 per month because she needed a babysitter, and had to pay for books and parking. She explained that she would be able to obtain this degree in two years and that it would help her get a good job. Her other expenses included $200.00 per month for clothes, $55.00 for laundry and cleaning, $95.00 per month for personal grooming (haircuts, toiletries, makeup), $120.00 per month for car insurance, and $100.00 per month for recreation, and $50.00 per month for gifts and donations. Rachel submitted a financial statement indicating her monthly expenses to be $2,846.00. The income portion of the financial statement was blank. Rachel testified that she had transferred $25,000.00 from her savings account to cover these expenses.

In England, Christopher worked for a company selling pension plans. Rachel testified that Christopher earned about $100,000.00 in this position. Rachel was unaware of Christopher’s income at the time of the hearing. She only knew that he worked as a financial advisor for one of his old clients. She explained that in the United Kingdom a tax return is only filed if a person is self employed. She and her family testified that he was paid in cash for playing soccer. Rachel explained that he received $300.00 per week cash for playing soccer and that the couple used this | nmoney for groceries and entertainment. She denied that he had any soccer related expenses.

Christopher denied that he earned $100,000.00 at his prior job. He stated that he made $60,000.00 during the last year that he and Rachel lived together. He testified that he currently has a monthly net income of $1,700.00. He explained that he could not go back to his former job because after September 11, 2001, the financial markets in the United Kingdom were down and his former employer was not hiring. He testified that he had recently purchased an apartment in England for $169,500.00. He explained that in England he did not have to fill out a loan application in order to obtain a loan to make this purchase. Rather, the fact that he had a previous mortgage for six years and good credit history qualified him for this loan. He acknowledged having recently purchased a $10,000.00 car. Christopher acknowledged receiving cash for playing soccer, but explained that this money was used to pay transportation and expenses related to playing soccer.

Christopher was questioned regarding numerous transfers into and out of his checking account. He explained that this was due to various investments maturing and cashing out and then making different reinvestments.

Both parties testified that they obtained approximately $90,000.00 when the parties divorced. Christopher testified that this amount had been reduced to about 40,000 pounds in order to pay his expenses. Rachel testified that her portion of the money she obtained when the couple’s assets were divided remained in an account collecting interest. She testified that the interest earned is reinvested every month. She later testified that she had taken $25,000.00 from her savings account and put it in her checking account in order to cover expenses.

A spouse claiming support is required to deplete her liquid assets to some extent before she may be entitled to post-divorce support. Patton v. Patton, 37,401 (La.App. 2 Cir. 9/24/03), 856 So.2d 56. In determining the extent of any depletion Imof assets, the court must apply a “rule of reasonableness” in light of factors such as ages and health of the parties and their ability, education, and work experience. Id. The court must be cautious of the long term effects when contemplating depletion of assets in determining the amount of support that is proper. Id.

The testimony revealed that both parties in this case have a significant amount of cash in the bank. It is apparent from the testimony that Rachel’s family has assisted her financially upon her return to Louisiana. Rachel testified that she pays rent to her grandmother as well as the utilities for the apartment. However, the record contains no cancelled checks or receipts for such payments. Additionally, Rachel testified that she is attending school at night rather than during the day. There was no testimony as to why Rachel could not attend school during the hours that Lucy is at day care. Rachel testified that part of her expenses included health insurance for herself and that Lucy was on Medicaid. Apparently the trial judge found that Rachel’s transfer of $25,000.00 from her savings account to her checking account to cover expenses was sufficient depletion of her assets to warrant final support. Additionally, it is apparent that Rachel may need these funds for future expenses since she does not plan to get a job for another two years. In light of the fact that Rachel has not held a job for several years and has a young child, we find no abuse in the trial court’s decision to award support. We now turn to the amount of support.

Rachel was awarded $700.00 in interim support and the trial judge awarded the same amount in permanent support. The transcript on the hearing on interim support was not included in the record on appeal.

Christopher’s testimony regarding his income and expenses was difficult to follow. Some of the figures were quoted in the United Kingdom currency, pounds sterling, while other amounts were quoted in United States dollars. Christopher prepared an income and expense statement that was admitted into evidence. This |^statement corroborates his testimony that his net monthly income at the time of the hearing was $1,700.00. However, the record does not contain one document to support his earnings in this amount. Curiously, child support and interim spousal support were not included in the list of expenses. When questioned as to how he could obtain a loan sufficient to cover 95% of the costs of a $169,500.00 apartment, he stated that it was only required that he show that he had a previous mortgage for six years and that he had a good credit rating. Christopher was an experienced financial planner. It would seem that he would have been able to prepare some type of documentation to support the amount he claimed regarding income and expenses. Additionally, Christopher acknowledged receiving $300.00 per week cash for playing soccer.

In determining the amount of final periodic support, Civil Code article 112 lists several factors to be considered by the court including the needs and income of the parties and the earning capacity of the parties. This article provides that the award of final periodic support shall not exceed one-third of the payor spouse’s net income.

We find that the $700.00 per month in permanent spousal support is not an abuse of discretion. While Rachel testified that her monthly expenses exceed this amount, we note that she is receiving $480.00 per month in child support and earns approximately $800.00 per month on her investments. Rachel claims expenses in excess of $2,800.00 per month, but all of these expenses, especially the tuition expense, were not supported by the record. Additionally, although Rachel has a young child, the child spends 20 hours per week in day care and Rachel, who has a master’s degree in business management, chooses to remain unemployed. Christopher has a significant earning capacity. In addition to his experience as a financial planner, he now has worldwide certification as a soccer coach. Christopher makes the assertion that the $700.00 per month award exceeds onejthird12 of his net income. We find the record unclear as to Christopher’s exact net income. There was enough testimony to establish that Christopher receives $1,700.00 per monthly salary plus an additional $300.00 per week for playing soccer and that he has substantially larger earning capacity. We, therefore, affirm the $700.00 award of spousal support. We note, however, that this support award is subject to modification upon a change in circumstances. Changes that would certainly affect the award are the couple’s child reaching five years old or Rachel becoming employed. When either of those events occurs, Christopher will be entitled to have the support award reviewed for possible reduction.

CONCLUSION:

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

AFFIRMED.


author: LTHOMAS F. DALEY, Judge.

text:
    Michael A. DONNELLY v. James P. QUATROY.
    No. 03-CA-1145.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      G. Tim Alexander, III, Lafayette, LA, and T. Randolph Richardson, Garner & Munoz, New Orleans, LA, for Plaintiff/Appellant.
    Mitchell J. Hoffman, Hilary Hurst Landry, and Melinda B. Brown, New Orleans, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   LTHOMAS F. DALEY, Judge.

Plaintiff/appellant, Michael A. Donnelly, appeals the trial court’s judgment annulling a default judgment that had been rendered in favor of Michael Donnelly and against defendant/appellee, James P. Qua-troy. The trial court granted James Qua-troy’s Petition for Nullity, finding that service upon the defendant was invalid. On appeal, Michael Donnelly argues that the trial court erred in finding that service upon James Quatroy was invalid. In the alternative, Michael Donnelly argues that James Quatroy acquiesced in the judgment by submitting to a judgment debtor examination. After thorough review, we affirm the judgment of the trial court, but on different grounds. We find that service on James Quatroy was effective under the Louisiana Long Arm Statute, LSA-R.S. 13:3204, but find the default judgment invalid, plaintiff, Michael Donnelly, having failed to comply with R.S. 13:3205.

The procedural history is as follows. On October 13, 1999, Michael Donnelly filed suit against James Quatroy to collect amounts due on a promissory note in the amount of $350,000.00. At the time the suit was filed, it alleged that | ¿James Qua-troy was a resident of Jefferson Parish. Service was requested at a Jefferson Parish home address. The Jefferson Parish Sheriffs Office attempted service once upon James Quatroy at that address on October 18, 1999, but was unsuccessful because James Quatroy refused to answer the door. The Deputy Sheriff made his return on the attempted service, which is part of this record, certifying that he had been unable to make service for that reason.

On May 2, 2001, Michael Donnelly filed a First Supplemental and Amending Petition that set forth new causes of action on three additional promissory notes. At the same time, he filed an Ex Parte Motion to Appoint Private Process Server, citing his previous inability to serve James Quatroy with the original Petition in 1999. The trial court signed the order appointing the private process server on May 7, 2001. The record reflects that the private process server personally served James Qua-troy with the Original and First Supplemental and Amending Petitions on May 9, 2001, finding James Quatroy in Saucier, Mississippi, though the return of service does not reflect that it occurred in Mississippi.

On May 30, 2001, 21 days after service upon James Quatroy, Michael Donnelly moved for a Preliminary Default, which the judge entered on May 31, 2001. On June 14, 2001, Michael Donnelly moved to confirm the Preliminary Default. Judgment on the default was entered on June 15, 2001. Notice of Judgment was sent to James Quatroy at a Metairie address on January 11, 2002. On June 17, 2002, a Motion to Examine Judgment Debtor was filed by the substituted judgment creditor, Bank Plus, to whom Michael Donnelly assigned his interest in the promissory notes. The record reflects that Michael Donnelly/Bank Plus pursued several garnishees in an attempt to collect the debt, in addition to taking James Quatroy’s deposition several times, first on January 8, 2002.

IfiOn October 31, 2002, James Quatroy filed an Exception of Insufficiency of Service of Process and Lack of Jurisdiction Over the Person of the Defendant and Alternatively, Motion for New Trial, alleging that the service of the First Supplemental and Amending Petition by the appointed private process server was invalid because the sheriff was never given the opportunity to serve this petition first. Additionally, James Quatroy alleged that service was ineffective because it was made in Mississippi, out of the geographical authority of Louisiana process servers under LSA-C.C.P. art. 1293.

In support of the Motion for New Trial James Quatroy argued that Notice of the Default, pursuant to LSA-C.C.P. art. 1913(C), was never properly made because it was mailed to a Metairie address that Michael Donnelly knew was not James Quatroy’s last known address, as evidenced by paragraph (4) of Michael Don-nelly’s Ex Parte Motion to Appoint Private Process Server. James Quatroy argued the delays for filing the Motion for New Trial had never begun, due to the ineffective Notice of Judgment.

James Quatroy filed a Supplemental Memorandum in Support of his Exceptions on February 3, 2003, further noting service upon him in Mississippi did not comply with the provisions of the Long Arm Statute, LSA-R.S. 13:3201 et seq. James Quatroy filed a Second Supplemental Memorandum in Support of his Exceptions on February 6, 2003, arguing that service across State lines by a Louisiana private process server was invalid as being beyond the authority granted by LSA-C.C.P. art. 1293.

Bank Plus opposed the Exceptions, arguing that they were untimely, and further that LSA-R.S. 13:3471, which provides that if an attack on service is made after judgment, the return may be only attacked in a direct action to annul the | (judgment, which is an ordinary proceeding, not by way of appeal or exception. Bank Plus further argued that the Motion for New Trial was untimely because the Notice,of Judgment was mailed to the Metairie address for James Quatroy that, he (James Quatroy) had admitted in a deposition taken in another matter only three days prior to the mailing, was a home of his where he resided part of the time and where he received mail.

The Exceptions came for hearing on February 7, 2003. On March' 10, 2003, James Quatroy filed the Petition to Annul Judgment. The trial court denied the Exceptions of Insufficiency of Service of Process and Lack of Jurisdiction Over the Person of the Defendant in a written judgment signed bn March 13, 2003, but deferring a ruling on the Motion for New Trial until such time as the Petition to Annul Judgment was decided.

Bank Plus filed an Exception of No Cause of Action and Prescription based upon LSA-C.C.P. art. 2004. Michael Don-nelly joined in those Exceptions, and also filed an Answer asserting that James Qua-troy had acquiesced in the judgment.

James Quatroy filed a Motion for Partial Summary Judgment on May 12, 2003, arguing that under the Code of Civil Procedure, private process servers, like sheriffs, cannot cross State lines to effect service. He further argued that the only way service could be made on an out of State resident was in compliance with the Long Arm Statute, LSA-R.S. 13:3201 and 13:3471, which was not done.

The Motion for Partial Summary Judgment came for hearing on May 30, 2003. The trial court entered judgment for James Quatroy on June 25, 2003, granting the Motion for Partial Summary Judgment, annulling and setting aside the Default Judgment of June 15, 2001, finding specifically that the service upon James Quatroy was invalid. The trial court issued written Reasons for Judgment on July 23, 2003. Therein, the trial court specifically found that plaintiffs violated LSA-C.C.P. art. 1293 by not meeting the requirements for having a private process |7server appointed when the Motion (to appoint one) was presented for signature. The court also found that private' process servers could not, as a matter df law, cross parish lines to effect service. The trial court also specifically found that James Quatroy did not acquiesce 'in the judgment by responding to a Judgment Debtor Examination, and that the judgment had not been executed. ■

On appeal, appellants argue:

1) the trial court erred in finding that service of process was not proper under Louisiana law; when the private process server made personal service upon James Quatroy in. Mississippi;
2) The trial court erred in5 failing to consider if James Quatroy had waived any objections he might have had - to - the sufficiency of service, when he' failed to file the Exception ■ required under Louisiana law by LSA-C.C.P. art. 925;
3) The trial court erred in failing to conclude that James Quatroy acquiesced in the judgment by voluntarily giving a Judgment Debtor examination with stipulation of counsel, ' without objection and failing to timely object to the judgment that had been rendered against him.

ANALYSIS

Under LSA-C.C.P. art. 2002, a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time. Art. 2003 provides that a defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.

James Quatroy argues that service on him in Mississippi was not valid. He advances several arguments in support of this position He argues that private process servers are without authority to make personal service across State lines. |sHe also argues that the service upon him did not comply with the Louisiana Long Arm Statute, LSA-R.S. 13:3201 et seq. He also argues that at the time service was made, he fit the definition under Louisiana law of an absentee, and service was not properly made under that law.

After thorough review of the record and applicable law, we affirm the result the trial court reached, that the Default Judgment rendered against James Quatroy was null. We do so on different grounds than those reached by the trial court, however.

First, we disagree with the trial court’s conclusion that the requirements of having a private process server were not met when the Motion to Appoint one was filed in 2001. The Sheriffs return in 1999 stated that James Quatroy was avoiding service. This is sufficient, in our view, to allow the appointment of the special process server.

We find that service upon James Qua-troy was proper under the Long Arm Statute, but that a valid default judgment was not taken because plaintiff did not comply with LSA-R.S. 13:3205.

Both parties acknowledge that there is no reported case law in this State addressing the scope of the authority of private process servers to cross State lines. We find we need not reach this issue, however, nor need we reach James Quatroy’s absentee argument, because defendant, James Quatroy, clearly fits within the parameters of the Louisiana Long Arm Statute. Defendant, James Quatroy, was located outside of this State and he was served by an individual designated by the court in which the suit was filed. See LSA-R.S. 13:3204(A). However, the requirements of taking a default judgment under the Long Arm Statute were not met. That statute reads, in pertinent part:

|9§ 3205. Default judgment; proof of service of process
No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:
(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or
(b) actually delivered the process to the defendant, showing the date, place, and manner of delivery.

The return by the private process server making service is not in affidavit form. Nor does it show the place of delivery. The delays for taking a preliminary default do not begin until 30 days after the affidavit of service is recorded. Since the return was not made in the proper affidavit form, the 30 days in R.S. 13:3205 never began to run. A preliminary default judgment obtained without strict compli-anee with the procedural requirements of the Long Arm Statute is an absolute nullity. Collier v. Fugler, 29,457 (La.App. 2 Cir. 5/7/97), 694 So.2d 553.

We need not consider whether James Quatroy waived objection to jurisdiction. That issue is germane only if the grounds for nullity is based upon insufficient service. See C.C.P. art. 2002(A)(2).

We agree with the trial court that James Quatroy did not acquiesce in the judgment. James Quatroy was deposed in a related matter on January 8, 2002, but not in this matter. At that deposition, James Quatroy was shown a copy of the default judgment of June 15, 2001. Notice of this judgment was mailed to him 3 days after the January 8, 2002 deposition to the Metairie address he admitted to using at the deposition. Participation in a judgment debtor examination, alone, does not constitute acquiescence. Failure to act after receiving personal service of a notice of an invalid default judgment does not constitute acquiescence within the |inmeaning of LSA-C.C.P. arts. 2002 and 2003. Spinks v. Caddo-Bossier Services, Inc., 270 So.2d 604 (La.App. 2 Cir.1972).

Accordingly, the trial court’s judgment granting James Quatroy’s Petition for Nullity is affirmed. The matter is remanded for proceedings consistent with this opinion.

AFFIRMED; REMANDED.

      . James Quatroy's counsel states that James Quatroy was of insufficient mental capacity at the time of the alleged service to even understand that he had been served with papers that required a response. References in the record suggest that James Quatroy suffered from bipolar disorder and was hospitalized during part of this time, though no evidence was presented. Likewise, no evidence was presented that James Quatroy was ever committed or interdicted.

      . The default itself was taken 21 days after service on James Quatroy was made.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    Marsha TRUNK v. Patricia Mellen BERG, Carey L. Ernst Lambert, and Mark Lambert.
    No. 03-CA-1120.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.

      Gary J. Giepert, Jack A. Ricci, Ricci & Giepert, New Orleans, LA, for Defendants-Appellants, Mark Lambert, Patricia Mellen Berg, and Carey Ernst Lambert.
    Raymond B. Landry, Moliere, Flanagan & Landry, L.L.C., Metairie, LA, for Plaintiff-Appellee, Marsha Trunk.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE F. McMANUS.
   J^SUSAN M. CHEHARDY, Judge.

This is a suit for declaratory judgment and injunctive relief. Defendants appeal a judgment finding that plaintiff has a servitude of passage over defendants’ property and ordering defendants to remove a fence they erected on the property. We reverse.

Marsha Trunk (hereafter “Trunk”) owns property at 6610-12 Bellaire Drive. She has owned the property since 1977; prior to that her father, Martial Voitier, owned it since 1958. Trunk’s property adjoins property at 6614-16 Bellaire Drive, which is owned by Patricia Mellen Berg, Carey L. Ernst Lambert, and Mark Lambert (hereafter collectively called “Berg/Lambert”). Berg/Lambert bought the 6614-16 property in 1999 from Ivan Roby and Kittie Roby.

Each property has a house on it. Each house is approximately five feet from the common boundary. When Berg/Lambert purchased 6614-16 Bellaire, the area between the houses had a paved driveway ten feet wide on it (five feet on each property), which was accessible to both properties. At the time of the hBerg/Lambert acquisition, there was a boat parked in the back yard of the Trunk property at the end of the paved driveway, which has remained in the Trunk yard.

On May 4, 2002 Berg/Lambert sent a letter addressed to Lawrence Trunk (plaintiffs son, who is the tenant at 6610-6612), advising him that Berg/Lambert planned to place a retaining wall between the properties, fill the lot, and replace the concrete. The letter stated that once the retaining wall was constructed, its presence would obstruct passage of the boat parked in the back yard of the Trunk property. The letter listed the construction deadline and advised that arrangements should be made to move the boat before it became trapped by the construction changes.

The boat was never moved and Berg/Lambert proceeded with their planned changes. In June 2000 Berg/Lambert removed the portion of the concrete driveway on their side of the property line, poured a retaining wall, and constructed a six-foot wooden privacy fence on the retaining wall that extends from the front yard all the way to the rear of the property.

On June 15, 2000, Trunk filed a suit for declaratory judgment to recognize a right or servitude of passage, for injunctive relief, and for damages. She alleged that the common paved driveway had existed between the properties for over 40 years, since at least 1958, and that the driveway permitted the only access to the rear of the Trunk property. She stated that since at least 1958 the owners of the Trunk and the Berg/Lambert properties, or their ancestors in title, have exercised actual, adverse, corporeal possession over the common driveway, which had been continuous, uninterrupted, peaceable, public, unequivocal, and within visible bounds.

Based on those allegations, plaintiff asserted the owners of both properties had acquired an apparent servitude over the common driveway through acquisitive prescription. She sought a declaratory judgment recognizing her right of passage or |4servitude of passage so acquired. Further, plaintiff sought an injunction to force defendants to remove the newly-eonstruct-ed fence, which was trapping the boat owned by plaintiffs tenant (her son, Lawrence Trunk). She also sought to compel defendants to restore the common driveway to its former condition.

In their answer, defendants generally denied the substantive allegations of the petition, except to admit they had erected a fence along the property line established by their legal title to their property and, further, that they had provided notice of their intention to erect the fence by certified mail to both plaintiff and her tenant.

In addition, defendants filed an exception of lack of subject matter jurisdiction and a reconventional demand, while plaintiff filed an exception of no cause of action to the reconventional demand. In their exception defendants asserted that Jefferson Parish lacks subject matter jurisdiction because the property is located in Orleans Parish; their reconventional demand sought to recover attorney’s fees, interest, and other damages sustained in defense of the suit. Plaintiffs exception asserted that defendants had no independent cause of action to recover attorney’s fees and costs from her. Plaintiff also filed a motion for summary judgment.

The motion for summary judgment and the exceptions were still pending at the time of trial. The court never ruled on either exception and never ruled on defendants’ reconventional demand. However, none of those issues have been raised on appeal.

Prior to trial the parties stipulated to the following facts:

|SA. Marsha Trunk owns residential property located at 6610-12 Bellaire Drive (the “Trunk property”).
B. Patricia Mellen Berg, Carey L. Ernst Lambert, and Mark Lambert (the “Defendants”) own residential property located at 6614-16 Bellaire Drive (the “Berg/Lambert property”).
C. The Trunk Property abuts the Berg/Lambert Property.
D. The legal description in the document through which the Defendants acquired their property in 1999 encompasses the portion of the pavement between the two properties but closest to the Berg/Lambert Property, including the portion of the pavement beneath the fence at issue.
E. The legal description in the document through which Marsha Trunk (or her family members, who are her ancestors in title) acquired her property in 1958 encompasses the portion of the portion of [sic] the pavement between the two properties but closest to the Trunk Property.

The parties also stipulated to the use of various exhibits, including photographs, surveys of both properties, the deposition of Ivan Roby (former owner of the Berg/Lambert property), and the letter dated May 4, 2000 from Mark Lambert to Lawrence Trunk.

In his deposition Ivan Roby testified he owned and lived at 6614 Bellaire Drive from 1961 to 1999. During that entire time the house next door was owned and occupied by members of plaintiffs family. There was an alleyway between the properties that was paved with concrete, which predated Roby’s ownership of the property. When he first moved in the alleyway was used as a walkway by Mrs. Voitier (plaintiffs mother). Roby did not use it as a walkway, because his property had a fence up to the back of his house. Mrs. Voitier had no fence, however, and she used the walkway to access her back yard.

Roby testified he did use the alleyway to park his boat, which he pulled up to his fence, which came up to the back of his house. He never thought he owned |fithe entire alleyway, but only the half of it along the fence line that was already there, but his boat straddled the walkway over onto the Trunk side. At one point Mrs. Voitier requested that he move the boat, so he moved it permanently. This was at some time prior to the late 1970s, because Mrs. Voitier died in the mid-to-late '70s.

According to Roby, plaintiffs family never used the alleyway as other than a walkway until “Young Larry” moved there and began using it to park his boat. Roby said the property was not used as a common driveway because the original fence prohibited passage of a vehicle through to the back yards.

Roby stated he had informed defendants that the alleyway was never used as a driveway. However, he admitted that “Mackey” Voitier, plaintiffs brother, had parked an automobile and motorcycle on it at times. Roby said the parking of his boat and Mackey’s car and motorcycle occurred at “all separate times,” “spread out ... none of it conflicted with anyone else ... if you had something to store you put it there as long as it wasn’t in the way. Nobody complained about it.”

Roby testified that prior to the act of sale, defendants asked him to speak to Lawrence Trunk about moving the boat. However, Roby did not recall ever doing so; Roby said he knew Trunk “was in the process of doing something with it.” Roby said Trunk had some concrete work done in front of his house, where he parked his automobile. Roby said there was space in front of the Trunk house for a driveway that would not interfere with the driveway in front of Roby’s house.

Asked whether there was any way to access either of the back yards other than by the alleyway, Roby said he had once moved a shed into his backyard by hauling it along the levee that runs behind both properties and removing a portion of the back fence to get it into his yard. However, Roby said, using the levee in that|7way is “not quite legal.” Roby also stated he had seen the new fence placed by the defendants and to his eye it appeared to be in line with the original fence.

At trial the only testimony was from Martial Voitier, Jr., plaintiffs brother, also known as “Mackie.” He testified that his parents purchased the house at 6610-12 Bellaire Drive in 1958, when he was in high school. Roby purchased the property at 6614^16 later. Voitier testified he moved away from his parents’ home when he got married, in approximately 1967 or 1968. After his parents’ death, Voitier owned the property with his sister until he sold his share to her.

Voitier testified there was a common driveway between the houses, just wide enough to put one car down the middle. Voitier said the two houses, 6610-12 and 6614-16, originally were built as four-unit rental property by the person who sold the house to the Voitier’s parents. Voitier’s parents considered buying both properties, but ultimately decided only to buy the one house. The concrete driveway was put between the two houses by the original owner, who gave Voitier’s parents an option of constructing a carport or garage in the back yard. Voitier said the common driveway would have been used to access the back yard carport, but his parents elected not to have a carport built in back.

Voitier said that Roby parked a fishing boat in the common driveway for years. Voitier said when he needed to get into the back, he would ask Roby to move the boat and Roby would move it. The only entry to the back yard was at the very end of that common driveway.

In addition, Voitier testified, he himself used the common driveway when he wanted to work on his car. He did not recall either he or his parents ever having any discussion with Roby about the use of the driveway or asking for permission to use it. He said he never considered the question of who owned the driveway until this lawsuit. They always had use.

IsVoitier admitted that no one in the his family ever owned a boat, so they never stored one on the common driveway. From the 1950s through the 1980s, they had no boat in the common driveway. He also admitted that one could get to the back yard of the Trunk property by walking only on the Trunk side property line. However, he said, one could not get a vehicle or a boat into the back yard without using all of the common area. He also admitted that simply parking on the other side of the common driveway would not mean he would own it. He said they and their tenants used it as a convenience.

Voitier said that since defendants built their fence along the property, one can no longer drive into the back yard of the Trunk property. He admitted that one can still walk into it, however, and that his nephew’s boat has not been in the Trunk back yard for 30 continuous years.

The trial court took the matter under advisement and rendered judgment on November 14, 2002 in favor of plaintiff and against defendants, declaring that plaintiff has acquired a servitude of passage over the driveway via acquisitive prescription and ordering that defendants remove the fence erected between the two properties.

On appeal defendants assert that the trial court erred in finding that plaintiff proved she or her ancestor-in-title had adverse corporeal possession of the property, because any use of the property by plaintiff/her ancestor-in-title was by permission of defendants’ ancestor-in-title.

In opposition plaintiff contends that the trial court was not manifestly erroneous in determining that plaintiff had acquired a servitude of passage over the driveway through acquisitive prescription.

A predial servitude is a charge on a servient estate for the benefit of a dominant estate, where the two estates belong to different owners. La.C.C. art. 646. 19“Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servi-tudes are established by juridical act, prescription, or destination of the owner.” La.C.C. art. 654.

Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. La.C.C. art. 659. The right of passage is a legal servitude for the benefit of enclosed estates, in which the owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. La.C.C. art. 672; La. C.C. art. 689. “Enclosed estates” means lands shut off from access to public roads by reason of their being entirely surrounded by other lands. English Realty Co. v. Meyer, 228 La. 423, 82 So.2d 698, 700 (1955). It is undisputed that plaintiffs property frontage is along a public road, namely, Bellaire Drive. Therefore, her property is not an enclosed estate and the legal servitude of passage cannot apply to her property.

The question is, however, whether there is another real right plaintiff can claim. In addition to the legal right of passage there is a predial servitude of passage, which is “the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the servient estate.” La.C.C. art. 705. There also is a predial servitude of right of way. La.C.C. art. 706.

Predial servitudes are either apparent (that is, perceivable by exterior signs) or nonapparent (those that have no exterior sign of their existence). La.C.C. art. 707. If there was a servitude of passage or a right of way in this case, it was an apparent servitude because it was manifested by the presence of the paved concrete driveway.

| ^Establishment of a predial servitude is an alienation of a part of the property and, thus, is governed by the laws governing alienation of immovables. La.C.C. art. 708.

La.C.C. art. 740 provides that apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription. Article 740 was newly added by Acts 1977, No. 514, § 1, eff. Jan. 1, 1978. It changed prior law, which stated that only continuous and apparent servi-tudes could be acquired by title, by destination of the owner, or by acquisitive prescription.

However, Article 740 made a substantive change in the law and thus cannot be applied retroactively. La.C.C. art. 740, Revision Comments—1977, Comment (a). See also, Wetzel v. Khan, 0-1083, p. 4 (La.App. 4 Cir. 9/19/01), 797 So.2d 122, 126, writ denied 01-2804 (La.1/4/02), 805 So.2d 202.

Prior to revision by Acts 1977, No. 514, § 1, effective Jan. 1, 1978, the Civil Code articles on predial servitudes provided that servitudes were either continuous or discontinuous; discontinuous servitudes were “such as need the act of man to be exercised.” La.C.C. art. 727 (repealed 1978). Servitudes were either “visible and apparent or nonapparent.” La.C.C. art. 728 (repealed 1978). . Continuous nonapparent. servitudes and discontinuous servitudes, whether apparent or not, could only be established by title. La.C.C. art. 766 (repealed 1978). Destination by the owner was equivalent to title only with respect to continuous apparent servitudes. La.C.C. art. 767 (repealed 1978).

Consequently, prior to the 1978 revisions the right sought here would have been classified as a discontinuous servitude, because it required the act of man to exercise it. Under the pre 1978 articles, a discontinuous servitude could only be In established by title. La.C.C. art. 766 (repealed 1978). The new Article 740 cannot be applied retroactively to permit acquisitive prescription of what was formerly a discontinuous servitude. Wetzel, 00-1083 at p. 4, 797 So.2d at 126, writ denied 01-2804 (La.1/4/02), 805 So.2d 202.

Article 740 also allows acquisition of a servitude by destination of the owner. “Destination of the owner” is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners. La.C.C. art. 741. When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right. Id.

At first destination of the owner seems applicable here, considering Voitier’s testimony that the common driveway was made by the person who sold the property to his father. However, Article 741 also was newly added by Acts 1977, No. 514, § 1, and it legislatively changed the former distinction between discontinuous and continuous servitudes. As such, it is substantive law and applies prospectively only. McCann v. Normand, 97-103, p. 8 (La.App. 3 Cir. 6/4/97), 696 So.2d 203, 207. Because it can only apply prospectively, it cannot apply to the time when both properties in this ease were owned by the same person.

The laws governing acquisitive prescription of immovable property apply to apparent servitudes. La.C.C. art. 742. “An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years'in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.” Id. However, Article 742, like Articles 740 and 741, was newly added by Act 514 of 1977. It too is a substantive amendment that cannot be applied retroactively. McCann v. Normand, 97-103 at p. 8 (La.App. 3 Cir. 6/4/97), 696 So.2d 203, 207.

[12In conclusion, we find the trial court erred in ruling that the plaintiff is entitled to either a servitude or a right of passage and in ordering the defendants to remove the fence they erected on their property line. Accordingly, the judgment is reversed and we enter judgment in favor of defendants.

For the foregoing reasons, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of defendants, Patricia Mel-len Berg, Carey L. Ernst Lambert, and Mark Lambert, and against plaintiff, Marsha Trunk, dismissing plaintiffs demands against defendants with prejudice. All costs of the trial and of this appeal are assessed against the plaintiff, Marsha Trunk.

REVERSED AND RENDERED.

      . These two properties both straddle the parish line between Orleans Parish and Jefferson Parish. The greater portion of each property, including the section at issue here, is in Orleans Parish. However, La.C.C.P. art. 80(B) states that an action regarding immovable property situated in more than one parish may be brought in any of the parishes. Hence, venue is proper in Jefferson Parish.

      . Lack of subject matter jurisdiction is a matter which this Court can address on its own motion. Boudreaux v. State, Dept. of Transp. and Development, 01-1329, p. 8 (La.2/26/02), 815 So.2d 7, 13. Nevertheless, it is not applicable here because Louisiana district courts have jurisdiction over all civil matters. La. Const. Art. 5, § 16(A)(1). In fact, defendants' exception was improperly titled, because the content of their memorandum in support of the exception shows it was directed not to subject matter jurisdiction, but to venue. As noted previously, however, venue is proper here. See, Note 1, supra.

      . Title IV of Book II of the Louisiana Civil Code, Predial Servitudes, previously consisting of Articles 646 to 822, was revised, amended and reenacted by Acts 1977, No. 514, § 1 to consist of Articles 646 to 774.


author: | JAMES L. CANNELLA, Judge.

text:
    Alex GRIFFIN, III v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, Sidney Gassen, and Coregis Insurance Company.
    No. 03-CA-1107.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 27, 2004.
    Andrew A. Lemmon, Lemmon Law Firm, L.L.C., Hahnville, LA, for Appellant.
    Alan A. Zaunbrecher, Brett M. Bollinger, Metairie, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and MARION F. EDWARDS.
   | JAMES L. CANNELLA, Judge.

The Plaintiff, Aex Griffin, III, appeals from a summary judgment in an insurance coverage dispute with the Defendant, St. Charles Parish, resulting from an automobile accident. We affirm.

On May 21, 1997, the Plaintiff was driving a tractor on Highway 52 in Luling, Louisiana, when he was struck by a car driven by Sidney Gassen. At the time, he was in the course and scope of his employment as a tractor driver with the Defendant. Gassen was insured by Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau). Liability was not contested and Farm Bureau tendered its $25,000 policy limits shortly after the accident.

The Defendant maintained an automobile insurance policy through Coregis Insurance Company covering employees. This policy provided uninsured/underin-sured (UM) coverage of $100,000, subject to a $25,000 self-insured retention (SIR). The provision states that it will pay UM damages “in excess of the insured’s self-insured retention.” Because of the severity of the Plaintiffs injuries, Coregis unconditionally tendered $30,000 to the Plaintiff under its UM provision, and eventually settled the matter with the Plaintiff.

The Plaintiff sought to recover the $25,000 retained by the Defendant. However, the Defendant refused to pay and filed a motion for summary [¿judgment, contending that it did not provide, nor was it obligated to provide, UM benefits under the SIR. The Defendant also argued that the Plaintiff was precluded from making a claim against it under the Louisiana Workers’ Compensation Act exclusivity provision, La.R.S. 23:1032. On May 23, 2003, the trial judge granted the summary judgment, finding that the SIR does not include UM benefits and, if it did, the Plaintiff was precluded from the claim due to the exclusive provisions under the Louisiana Workers’ Compensation Act.

On appeal, the Plaintiff asserts that the trial judge erred in finding that the SIR does not include UM benefits. Second, he contends that the trial judge erred in finding that the Workers’ Compensation Act precludes this claim.

SELF-INSURED RETENTION OF UM BENEFITS

The Plaintiff argues that the Defendant specifically chose to provide $100,000 of UM coverage to its insureds, which includes employee drivers, by a special rider to the Coregis policy. He argues that under the policy, the Defendant may be self-insured for the first $25,000 of that amount, but that amount was intended to be the first $25,000 of the UM benefits of $100,000, leaving the remaining $75,000 for Coregis to pay for any one incident. In response to the Defendant’s argument, he contends that it is irrelevant as to whether the Defendant was required to provide UM under the law. It decided to provide UM and to pay the first $25,000 as a self-insurer as an additional compensation to the employees. Thus, the Plaintiff is entitled to recover that amount as part of the UM benefits provided by the policy. Otherwise, the policy does not make sense since the only persons covered by the policy are the employees.

The Defendant cites cases holding that under Louisiana law, self-insurers have no obligation to provide UM coverage, and that a SIR does not provide UM |4for an employee. See: Tybussek v. Wong, 96-1981 (La.App. 4th Cir.2/26/97), 690 So.2d 225 and Hebert v. Williams, 526 So.2d 835 (La.App. 3rd Cir.), writ denied, 532 So.2d 150 (La.1988). In Hebert, the only issue was whether a self-insurer is obligated to provide UM coverage. However, that is not the issue in this case. The question here is whether the Defendant in fact chose to obligate itself to pay the first $25,000 of UM benefits.

In Tybussek, the plaintiffs sued for damages arising from an automobile accident. Plaintiff was an employee of the Sewerage and Water Board of New Orleans (“Board”), was driving a truck owned by his employer, the Board, and acting in the scope and course of his employment when the accident occurred. The damages sustained by Plaintiffs were allegedly caused by the negligence of third-parties. The plaintiff sought recovery of UM benefits from the employer’s insurer, Carolina Casualty and the $100,000 SIR. The Fourth Circuit found that the Board had no obligation to provide UM coverage, thus there was no coverage for the first $100,000 from either the Board or Carolina Casualty. However, there, the Board did not specifically include a rider providing UM coverage and retaining the first $25,000 of that UM coverage. Nevertheless, the court also found that the workers’ compensation Act precluded the plaintiffs recovery from his employer.

In Jackson v. Cockerham, 02-2493 (La.App. 4th Cir.5/21/03), 847 So.2d 698, the bus company employer was found responsible to the injured employee for the UM benefits despite the SIR. In that case, the issue was whether the employee had to exhaust the SIR before Louisiana Insurance Guaranty Association (LIGA) would be responsible for the damages. There, an employee of the Regional Transit Authority in New Orleans was injured when his bus was struck by a tractor trailer truck insured by U.S. Capital Insurance Company (U.S.Capital). U.S. Capital was placed in rehabilitation and LIGA was named as a successor in interest. The bus was covered by a 14 million dollar liability policy, which included a self-insured [¡^retention of one million dollars. LIGA filed a motion for summary judgment seeking enforcement of the LIGA credit statutes, R.S. 22:1386, which required the plaintiff to recover from all other sources before the LIGA limits would be available. The trial judge found that LIGA was entitled to a credit for the full 15 million dollars in UM coverage. The trial judge determined that the employer was responsible for the SIR for UM coverage. However, in that case, the result turned on the language of R.S. 22:1386 A and 22:1379(3)(b). The court found that for purposes of LIGA credit only, a self-insurer is considered an insurer.

In this case, the Defendant opted to provide UM benefits for $100,000 for its employee drivers. In agreement “O” in the “Schedule of Self Insured Retention” the Defendant agreed that “The policy limits shown of the supplemental declaration pages will be for the excess of the following retained amounts: $25,000 Ultimate Net Loss for each occurrence ...” The supplemental declaration pages included Casualty Insurance, Crime Insurance, Time Element Insurance, and Other Insurance, which includes agreement O for “Each Accident: Uninsured Motorists— Bodily Injury.”

We conclude that the inclusion of the SIR for UM does not indicate the intent to pay the first $25,000 of UM coverage. The only UM coverage that comes into play, is if the damages exceed $25,000. Thus, we find that that the trial judge did not err in this respect.

In light of our findings herein, we pre-termit the issue of whether the workers’ compensation act precludes recovery against the employer for the SIR amount of $25,000.

Accordingly, the judgment of the trial judge is hereby affirmed. Costs of this appeal are to be paid by the Plaintiff.

AFFIRMED.