author: I,WOODARD, Judge.

text:
    TETRA APPLIED TECHNOLOGIES, INC. v. H.O.E., INC.
    No. 2003-1523.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.
    Matthew Douglas McConnell, Christopher Leonard Zaunbrecher, Briney & For-et, Lafayette, LA, for Plaintiff/Appellee, Tetra Applied Technologies, Inc.
    Kay A. Theunissen, Stephen P. Skiles, Mahtook & Lafleur, L.L.C., Lafayette, LA, for Defendant/Appellee, Wood Group Logging Services, Inc.
    John William Kolwe, Perret, Doise, Professional Law Corporation, Lafayette, LA, for Defendant/Appellant, Hibernia National Bank.
    Charles C. Culotta, Jr., Patterson, LA, for Defendant/Appellee, Kyle Machine & Tool Co., Inc.
    Philip A. Gattuso, Gretna, LA, for Defendant/Appellee, Hose Speciality & Supply Company of Lafayette, Inc.
    J. Kevin Stockstill, Lafayette, LA, Jennifer Ziegenhorn, Husch & Eppenberger, L.L.C., Memphis, TN, for Defendant/Ap-pellee, Cummins Mid-South, L.L.C.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   I,WOODARD, Judge.

On appeal, Hibernia National Bank (Hibernia) asserts that, when the trial court granted the Trade Creditors’ motions for summary judgment, it failed to recognize Hibernia’s perfected security interest in the funds deposited in the registry of the trial court. We reverse the trial court’s determination.

* * *

On June 24, 1999, Hibernia and H.O.E., Inc. (HOE) executed a Factoring Agreement. Under the terms of this agreement, HOE granted Hibernia a security interest in all of its accounts and contracts. In addition, HOE assigned to Hibernia each invoice representing an account receivable to HOE. Specifically, section 11 of the Factoring Agreement provides, in part:

8. Invoicing. All invoices for merchandise sold or services rendered shall be prepared by [HOE] and shall bear a notification that they have been assigned to, are owned by and are payable directly and only to Hibernia.... Each invoice shall bear the terms stated in the approved order or customer credit line and no change from the original terms of sale shall be made without Hibernia’s prior written consent....
11. Security Agreement; Setoff. As security for all obligations and indebtedness of [HOE] to Hibernia, now existing or hereafter incurred, direct or indirect, absolute or contingent, whether created under this Agreement or otherwise, including without limitation, obligations owed by [HOE] to others which Hibernia obtains by assignment, [HOE] assigns to Hibernia and grants to Hibernia a security interest in (a) all of [HOE’s] present and future accounts, accounts receivable and books and records relating thereto, contract rights, instruments, chattel paper, general intangibles, returned or repossessed goods arising out of or relating to the sale or other disposition of goods at any time or from time to time, all proceeds thereof and merchandise represented thereby....

On June 28,1999, Hibernia filed a UCC-1 Financing Statement to perfect its security interest in HOE’s accounts receivable.

UOn May 29, 2001, Tetra Applied Technologies, Inc. (Tetra), which is “in the business of providing ... services ... to the hydrocarbon exploration and production industry,” and HOE executed an Equipment Manufacturing Contract (Manufacturing Contract), in which HOE agreed to construct four wireline skid units and two spare cable drums for Tetra. As HOE constructed these items, it issued invoices for payment to Tetra. HOE previously assigned these invoices, representing the amounts Tetra owed, to Hibernia.

To complete this project, HOE purchased various supplies and equipment from Kyle Machine & Tool, Inc, Cummins Mid-South, L.L.C., Hose Specialty & Supply Company of Lafayette, Inc., and Wood Group Logging Service, Inc. (collectively referred to hereinafter as the “Trade Creditors”). Tetra and HOE specifically outlined in the Manufacturing Contract that if any subcontractors filed liens or claims against Tetra or its property, it could withhold from HOE payments in an amount sufficient to offset any such liens or claims.

On May 13, 2002, due to HOE’s breach of the Manufacturing Contract, Tetra filed a petition for writ of sequestration seeking possession of the incomplete skid units and spare cable drums that HOE was building at the time. Thereafter, Tetra obtained an order allowing it to seize these items.

On August 21, 2002, Tetra amended its writ of sequestration converting it to a concursus proceeding when it discovered that many of HOE’s subcontractors (including the Trade Creditors), who provided HOE with the equipment and supplies it needed to complete this project, did not get paid.

Because HOE owed it $189,996.57, Hibernia filed a motion for summary judgment claiming that it held a prior perfected security interest in and was entitled to the funds Tetra deposited in the registry of the trial court. Similarly, the Trade Creditors filed motions for summary judgment seeking, collectively, $88,042.06 for the equipment and services they provided in connection with this project. The trial court found the Trade Creditors’ claims superior and, as such, granted their motions for summary judgment and denied Hibernia’s.

On appeal, Hibernia asserts that the trial court erred when it granted the Trade Creditors’ motions for summary judgment: (1) by failing to give effect to Hibernia’s perfected security interest in the funds in the registry of the trial court; (2) by finding that the Trade Creditors each held a vendor’s privilege over these funds; (3) by ^finding that the Trade Creditors had a consensual lien or privilege under the terms of the Manufacturing Contract, and (4) by finding that the Trade Creditors were third party beneficiaries of this contract.

* * *

Summary Judgment

We will grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” We must review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. When confronted with legal issues raised in a motion for summary judgment, we give no special weight to the findings of the trial court and render a judgment on the record.

Hibernia’s Prior Perfected Security Interest

Hibernia, as the only party with a valid security interest encumbering the funds in the registry of the trial court, claims that it has the rights to these funds. On the other hand, the trial court concluded that a provision in the Manufacturing Contract, between Tetra and HOE, allowed Tetra to withhold these funds owed to HOE. Thus, according to the trial court, when Tetra exercised its right to withhold payment and later deposited these funds in the registry of the court, Tetra took the place of HOE for any amounts owed to the Trade Creditors, which, in turn, gave the Trade Creditors a right that was superior to Hibernia’s since these deposited funds never actually belonged to HOE. Specifically, the trial court held:

I think what the contract does, in effect, ... is that Tetra takes the place of HOE as to monies owed to the Trade Creditors, if HOE defaults in its | ¿payment to them, so that contractually Tetra would stand in the shoes of HOE [and] would become a depository or keeper of the funds that would have been due to them had the funds been paid over to HOE. But that effectively, contractually, these monies do not belong to HOE, nor does HOE have any claim to them. And I think the only people to whom these monies are due at this point would be the Trade Creditors, and that’s my decision.

Louisiana enacted Article 9 of the Uniform Commercial Code (UCC) as Chapter 9 of the Louisiana Commercial Laws, effective January 1, 1990. This Chapter regulates the creation of conventional real security in most movables and supplants the law of pledge and chattel mortgage with a single device called a security interest. By separating the consequences of possession from the privilege or priority given by the security, Chapter 9 permits possession to be gained or lost according to agreement of the parties without otherwise affecting the rights of the secured party.

Louisiana Revised Statutes 10:9-109 provides in pertinent part:

(a) General scope of Chapter. Except as otherwise provided in subsections (c) and (d), this Chapter applies to:
(3) a sale of accounts, chattel paper, payment intangibles, or promissory notes;
(d) Inapplicability of Chapter. This Chapter does not apply to:
(2) a lien, other than an agricultural lien, given by statute for services or materials, but R.S. 10:9 — 322(h) and 9-333 apply with respect to priority of the lien;
|s(e) Certain sales. The application of this Chapter to the sale of accounts, chattel paper, payment intangibles, or promissory notes is not intended and shall not be used to recharacterize that sale as a transaction to secure indebtedness, but is intended to protect purchasers of those assets by providing a notice filing system. For all purposes, in the absence of fraud or intentional misrepresentation, the parties’ characterization of a transaction as a sale of accounts, chattel paper, payment intangibles, or promissory notes shall be conclusive that the transaction is a true sale and is not a secured transaction and that title has passed to the party characterized as the purchaser, regardless of whether the purchaser (secured party) has any recourse against the seller (debtor), whether the seller is entitled to any surplus, whether the purchaser has possession of the note, contract, account agreement, invoice, or other evidence of indebtedness, or any other term of the parties’ agreement.

(Emphasis added.) Louisiana Revised Statutes 10:1-201(37) defines a “security interest” as:

\A ] n interest in personal property or fixtures, created by contract, which secures payment or performance of an obligation. ... The term also includes any interest of ... a buyer of accounts, chattel paper, payment intangible, or a promissory note in a transaction that is subject to Chapter 9. A lien or privilege created by operation of law is not a “security interest.”

(Emphasis added.) In addition, the attachment of a security interest in collateral gives the secured party the rights to “proceeds” of the collateral, which includes the rights to a supporting obligation for the collateral. In “A Guide to the Provisions of Chapter Nine of Louisiana’s Commercial Code,” Thomas A. Harrell explains:

The concept of proceeds includes not only fruits, revenues, and products derived from the collateral, but also amounts received from insurance covering it as well as what is received from its sale, exchange, expropriation, or other voluntary or involuntary disposition whether or not the security interest continues in the collateral in the hands of the transferee. Furthermore, things that are acquired with proceeds or are received from or with respect to them are also proceeds of the collateral. The security interest thus acts in the manner of a general mortgage or privilege, attaching to proceeds without further action, although in some cases additional perfection as to the proceeds may be required. The security in proceeds is also generally deemed to be a continuation of the | ^security in the collateral as though the proceeds were merely a divided part of the collateral.[]

Furthermore, La.R.S. 10:9-201 declares that a security agreement (whether or not it is perfected) is generally effective when it attaches according to its terms not only between the parties, but also as to purchasers of the collateral and other creditors of the debtor, including those having privileges. However, there are many exceptions, particularly in the case of unper-fected security, where our legislature chose to protect persons who deal with the collateral without knowledge or fair notice of the security interest.

Under the Factoring Agreement, HOE granted a security interest in, and assigned, its accounts receivable to Hibernia. On June 28, 1999, Hibernia perfected its security interest in HOE’s accounts receivable by filing a UCC-1 Financing Statement.

To make a security interest fully effective against third persons a secured party must perfect their security interest.

Thomas A. Harrell describes, in detail, the benefits of obtaining perfected status:

Perfection by filing is ordinarily accomplished by filing a financing statement. ... The financing statement is neither intended nor designed to permit one to determine from the public records whether or to what extent particular collateral may actually be encumbered. The filing merely serves as a warning to the public that a security interest may exist. The statement is required only to identify the debtor, a secured party, and the collateral that may be subject to its terms.... Provision is then made for interested persons to obtain from the secured party, through the debtor, verification of the nature and extent of the security and the obligations it secures in the manner previously discussed.
... A financing statement thus serves as something in the nature of a warrant for the named secured party to thereafter extend credit to the 17debtor at will with the assurance that he will have priority over others to whom the debtor incurs similar obligations, although such priority is not absolute.
Filing a financing statement gives priority to any security interest granted by the debtor to the secured party in the property (or type of property) it describes as long as it is effective. This permits persons contemplating financing to file their statements before “closing” and having reasonable assurance that their claims will not be outranked by the claims of others who may have acquired some right or interest in the collateral shortly before closing.[]

In this instance, Hibernia (the secured party), by perfecting its security interest in HOE’s (the debtor’s) accounts receivable (the collateral described in the financing statement), warned the public that it had a security interest in this collateral; thus, Hibernia was confident that its claim to HOE’s accounts receivable would outrank the claims of others who later acquired some right or interest in this collateral.

Because Hibernia took these measures, the public records clearly evidenced its claim to all of HOE’s accounts receivable when Tetra and the Trade Creditors did business with HOE approximately two years later. To provide an additional warning of Hibernia’s ownership interest in this collateral, HOE stamped on each invoice it sent to its customers:

The account receivable evidenced by this invoice has been assigned to, sold to, is owned by and payable only to Hibernia National Bank. Please remit payments to:
Hibernia National Bank
P.O. Box 54349
New Orleans, LA 70154-4349

Therefore, the recorded UCC Financing Statement and the stamped invoices clearly put Tetra, the Trade Creditors, and all .other parties on notice of Hibernia’s secured interest in and ownership of HOE’s accounts receivable.

Generally, Chapter 9 only protects “innocent transferees for value” — those who take the collateral without knowledge of a prior unperfected security interest, before Isthey give value for their interest. Nevertheless, the Trade Creditors claim that the following provision in the Manufacturing Contract, executed by Tetra and HOE, made their claims superior to Hibernia’s:

Liens and Claims: [HOE] shall pay all Project amounts to its suppliers, ma-terialmen and mechanics when due, and further shall keep all [Tetra’s] property including the Project, free and clear of all liens, claims, and encumbrances arising out of this Agreement. In the event a lien or claim arising out of [HOE’s] performance of this Agreement is filed against [Tetra] or its property, [Tetra] shall have the right to withhold from payments due [HOE] an amount sufficient to offset such lien or claim. Such amounts shall be held until proof of payment of the lien is received, a lien release is received, [HOE] provides a sufficient bond to offset the lien amount, or [Tetra] is directed to pay the lien by [HOE] or a court of competent jurisdiction. Such amounts shall be held without interest.

According to the Trade Creditors, the fact that Tetra decided to withhold its payments to HOE made their claims enforceable, since HOE never had a right to the funds withheld; consequently, these funds cannot be considered accounts receivable of HOE. In other words, the Trade Creditors are asserting that, under the terms of the Manufacturing Contract, the funds deposited in the registry of the trial court are not HOE’s accounts receivable; thus, Hibernia’s security interest did not attach to these funds. We disagree.

Under Chapter 9, an “account” is defined, in part, as any “right (written or oral) to payment of a monetary obligation not evidenced by an instrument or chattel paper, whether or not earned by performance,” for: (1) property that has been or is to be sold, leased, licensed, assigned, or otherwise disposed of; or (2) services rendered or to be rendered. Louisiana Revised Statutes 10:9-318 further provides:

(a) Seller retains no interest. A debtor that has sold an account, chattel paper, payment intangible, or promissory note does not retain an ownership interest in the collateral sold.

(Emphasis added.) The UCC Comments to Section 10:9-318 state in part:

|t)4. Effect of Perfection. If the security interest of a buyer of accounts ... is perfected the usual result would take effect: transferees from and creditors of the seller could not acquire an interest in the sold accounts ....

(Emphasis added.) Accordingly, to protect against the seller’s creditors, the buyer of accounts must perfect their security interest in the accounts, as Hibernia did.

On June 24, 1999, when HOE (the debt- or or seller) assigned its accounts to Hibernia (the buyer), HOE lost an ownership interest in this collateral on June 28, 1999 — the day Hibernia perfected its interest. Therefore, no provision in the Manufacturing Contract could grant the Trade Creditors (creditors of the debtor or seller) an interest in the accounts HOE sold to Hibernia due to the fact that HOE had no ownership interest in its accounts receivable when Tetra and HOE executed this contract on May 13, 2002.

“There are no exceptions by which a transferee of accounts in which a security interest has been perfected may take free of the interest.” (Emphasis added.) Consequently, the trial court should have granted Hibernia’s motion for summary judgment because it was the only party with a perfected security interest in the funds that Tetra withheld. This conclusion pretermits our need to address Hibernia’s other assignments of error.

The policy, which has prevailed in Louisiana, is to deny the benefits of security to a creditor who does not take the steps the law declares are necessary to give publicity to his interest. Furthermore, our holding in the instant case does not leave creditors, like the Trade Creditors, without a means to protect their interests. Their claims could have possibly had “superpri-ority status” if they had obtained a “purchase money security interest” (PMSI) in the goods they provided to HOE. Generally, a perfected PMSI in goods and its identifiable proceeds has priority over a conflicting | insecurity interest in the same goods, if the PMSI is perfected when the debtor receives possession of the collateral or within twenty days thereafter.

Thus, we hold that Hibernia, as the only claimant with a perfected security interest in HOE’s accounts, has a priority interest in the funds deposited in the registry of the trial court. We reverse the trial court’s decision to grant the Trade Creditors’ motions for summary judgment, and grant Hibernia’s motion for summary judgment.

CONCLUSION

We reverse the granting of a summary judgment to the Trade Creditors, and grant Hibernia a summary judgment on its claim to the funds deposited in the registry of the trial court. We assess all costs of this appeal to the Trade Creditors/Appel-lees.

REVERSED.

      . La.Code Civ.P. art. 966(B).

      . See Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129.

        .See Campbell v. Markel Am. Ins. Co., 00-1448 (La.App. 1 Cir. 9/21/01), 822 So.2d 617, writ denied, 01-2813 (La. 1/4/02), 805 So.2d 204.

      . Thomas A. Harrell, A Guide to the Provisions of Chapter Nine of Louisiana’s Commercial Code, 50 La. L.Rev. 711 (1990).

      . Id.

      . La.R.S. 10:9 — 203(f).

      . Harrell, supra note 3, at 758 (footnotes omitted).

      . Id.

      . Id.

      . Id.

      . Id. at 738-39 (footnotes omitted).

      . Id. at 747.

      . La.R.S. 10:9-102(a)(2).

      . See La.R.S. 10:9-318.

      . Harrell, supra note 3, at 754.

      . Id.

      . See First Nat’l Bank v. Beckwith Mach. Co., 94-2065 (La.2/20/95), 650 So.2d 1148.

      . See Id.

      . La.R.S. 10:9-324.


source: Caselaw Access Project

author: | í SAUNDERS, Judge.

license: Public Domain

text:
    Julaine C. LeBLANC, Ovey LeBlanc, et al. v. STATE FARM INS. CO., et al.
    No. 2003-1522.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.

      Julius Willis Grubbs Jr., Haik, Minvielle & Grubbs, Iberia, LA, for Defendant Ap-pellee State of LA., DOTD.
    Dennis Ray Stevens, Gibbens & Stevens, New Iberia, LA, for Defendants/Appellees Timothy Edler, Rebecca Edler, Standard Fire Ins. Co.
    Michael G. Daiy, Toce & Daiy, Andre F. Toce, Lafayette, LA, for Intervenor/Appel-lee Toce & Daiy Law Firm.
    Stacy Skolfield Lee, Lafayette, LA, for Defendant Appellee Allstate Ins. Co.
    Barry Louis Domingue, Simon Law Offices, Lafayette, LA, for Plaintiff Appellant Julaine C. LeBlanc, Ovey LeBlanc.
    Charles Martin Kreamer, Allen & Gooch, Lafayette, LA, for Secondary Defendants/Appellants Conn Appliances, Inc., U.S. Fire Ins. Co., North Rivers Insurance Co.
    Shane Errol Romero, New Iberia, LA, for Defendant/Appellee Iberia Parish Government.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MICHAEL G. SULLIVAN, Judges.
   | í SAUNDERS, Judge.

Plaintiffs, Julaine LeBlanc and Ovey LeBlanc, appeal the judgment of the trial court granting, in part, the defendants’ Motions to Compel Enforcement of Settlement and Execution of Settlement Documents and Demand for Defense and Indemnification, filed by the Conn’s defendants, and adopted by the other defendants. Plaintiffs also appeal the trial court’s judgment that the Mediation Settlement Agreement executed on March 24, 2003 is an enforceable settlement which the court ordered enforced, but without the need for the plaintiffs to sign any additional documents. Additionally, the LeBlancs appeal the trial court’s ruling denying their Motion for a New Trial and finding it moot in light of its ruling on the Motions to Compel. We affirm.

FACTS

On Wednesday, July 30, 1997, Julaine LeBlanc was driving in a southerly direction on Louisiana Highway 86. Paul Julien, while acting in the course and scope of his employment with Conn’s Appliances, Inc., made a left turn into Louisiana Highway 86 from the private driveway of Timothy and Rebecca Edler without yielding to Ms. LeBlanc. Ms. LeBlane’s vehicle struck Mr. Julien’s vehicle.

As a result of the accident, a lawsuit was filed for personal injuries on behalf of Ju-laine LeBlanc on July 30, 1998, and a consortium claim was made on behalf of Ms. LeBlanc’s husband, Ovey LeBlanc, and on behalf of Dustin Courrege. Named as defendants in the original and/or subsequent amending petitions were the driver, Paul B. Julien, his liability insurer, State Farm Mutual Automobile Insurance Company (“State Farm”), Conn’s Appliances, Inc. (“Conn’s”) and its liability 12insurers, North River Insurance Company (“North River”) and U.S. Fire Insurance Company (“U.S. Fire”), Tim and Rebecca Edler and their insurer The Standard Fire Insurance Company (“Standard Fire”), as well as the State of Louisiana, Department of Transportation and Development (“DOTD”) and Iberia Parish Government.

Following much litigation in this matter, the parties agreed to participate in a mediation conference in the hopes of settling the lawsuit. The mediation conference was held on March 24, 2003. All parties were present or represented. Mr. Le-Blanc was not present at the mediation, but at the time of the mediation he and his wife were both represented by Mr. André Toce, who was present at the mediation. At the mediation on March 24, 2003, all parties present signed a “Mediation Settlement Agreement.” The terms of the agreement were as follows:

1) Conn’s, North River, and U.S. Fire agreed to pay the plaintiffs ’ $320,000.00;
2) DOTD agreed to pay the plaintiffs $50,000.00;
3) Iberia Parish Government agreed to pay $10,000.00; and
4) Tim and Rebecca Edler and Standard Fire agreed to pay the plaintiffs $15,000.00.

As of the date of the mediation, State Farm had already paid the plaintiffs $25,000.00, the limit of its policy, for its underlying policy on the personal vehicle of Conn’s employee, Mr. Julien. Therefore, the total settlement proceeds to the LeBlancs were $420,000.00. In addition to the financial settlement, the Mediation Settlement Agreement contained defense and indemnity language stating that the settlement “includes consortium claims of Mr. LeBlane and plaintiff to defend and to hold harmless the defendants as to same and indemnify as to consortium claims.” The agreement also stated: “The parties also agree that all claims will be dismissed | ¡¡with prejudice, and the parties agree that a formal settlement agreement will be executed at a later date.” In addition, it was a term of the agreement that DOTD’s settlement with the LeBlancs would be in the form of a Consent Judgment. A Consent Judgment regarding DOTD’s settlement was signed and filed with the Iberia Parish Clerk of Court on March 25, 2003. A Voluntary Motion and Order to Dismiss Claims of Ovey LeBlane was signed by Mr. LeBlane, ordered by Judge Keith R.J. Co-meaux, and filed with the Iberia Parish Clerk of Court’s office on March 25, 2003. As set forth in the agreement, all parties agreed that a formal settlement agreement would be executed at a later date.

On April 1, 2003, Charles Kreamer, Sr., attorney for Conn’s, North River, and U.S. Fire, faxed a letter to all parties with draft settlement documents attached, requesting notification by the parties of any necessary revisions. On the afternoon of April 1, 2003, Mr. Kreamer received a letter from Barry L. Domingue stating that his services had been retained by the LeBlancs, that Mr. Toce had been terminated by the LeBlancs, and that there was no settlement of this matter.

On April 2, 2003, all defendants received a letter from Mr. Toce, addressed to Mr. Domingue, which contained a copy of the settlement agreement, the Voluntary Motion and Order to Dismiss signed by Ovey LeBlane, the Consent Judgment on behalf of DOTD, and that advised that a Motion to Enforce Settlement Agreement would be filed and the settlement funds deposited in the registry of the court.

On April 7, 2003, Conn’s, North River, and U.S. Fire filed a “Motion to Compel Enforcement of Settlement and Execution of Settlement Documents and Demand for Defense and Indemnification.” A similar motion was filed by the Iberia Parish Government, Timothy and Rebecca Edler, and Standard Fire on April 7, 2003. |4On April 7, 2003 plaintiffs filed a Motion for New Trial.

A hearing on these motions took place May 2, 2003, in front of Judge Comeaux. The trial court held that the signed Mediation Settlement Agreement was a valid and enforceable compromise as per La.Civ. Code. art. 3071, and denied plaintiffs Motion for New Trial. On May 27, 2003, a hearing was held formulating a final judgment with regard to the trial court’s May 2, 2003 ruling. A Judgment on Rule was signed May 27, 2003.

The LeBlancs present two assignments of error for our review.

1) That the trial court committed reversible error in finding that a binding settlement agreement existed between the parties.
2) That the trial court committed reversible error in denying plaintiffs Motion for New Trial where plaintiffs prior attorney had no authority to enter the Consent Judgment or the Voluntary Motion and Order to Dismiss Claims of Ovey LeBlanc, and where the signature on the Motion purported to be that of Ovey Le-Blanc, was, in fact, not the signature of Ovey LeBlanc.

At the hearing on the Motion for New Trial and the Motions to Enforce, the trial judge stated:

The court finds that Exhibit A is a mediation settlement agreement executed by Julaine LeBlanc, Dennis Stevens, Julius Grubbs, Attorney for State of Louisiana, Dennis Stevens, Attorney for Tim and Rebecca Edler and Standard Fire, by Charles Kreamer, Attorney for Conn’s, by Shane Romero, Attorney for Iberia Parish Government, and by Andre Toce on behalf of Ms. Julaine Le-Blanc. The settlement states that the parties agree to settle all claims they have or may have in the above captioned matter in exchange for the payment of a certain amount including all special damages. In exchange for the payment referenced above, the parties agree that this will be a full and complete release of all claims against the defendants and that the plaintiffs will agree to hold harmless indemnifying defendants from and against all claims, liens, and privileges asserted by and on behalf of any health care providers, Medicare, Medicaid, and they further agree the split on how money is to be paid, when money is to be paid, and all parties will pay their own court costs. It settles the whole claim of the plaintiff. I don’t see that any other writing is needed. I don’t see that any other transaction is needed. I find that there has been a compromise to this litigation, and |fiI enforce the compromise.

LAW AND ARGUMENT

The requirements for the valid settlement of a lawsuit are provided in La.Civ. Code art. 3071, which states:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.

(Emphasis added).

LeBlanc’s Assignment Number 1

The LeBlancs do not dispute that Ms. LeBlanc’s signature appears on the Mediation Settlement Agreement, or that Ms. LeBlanc actually did sign the document. They argue, however, that the agreement signed at the mediation conference is not a legally binding compromise as specified in La.Civ.Code art. 3071. The LeBlanc’s also allege that Ms. LeBlane signed the Mediation Settlement Agreement under threats and coercion by her attorney Mr. Toce. Furthermore, they note the existence of the statement in the agreement that “a formal settlement agreement will be executed at a later date.” The LeBlancs argue that La.Civ. Code art. 1947 states: “When, in the absence of a legal requirement, the parties have contemplated a certain form, it is presumed that they do not intend to be bound until the contract is executed in that form.” As the agreement specified that a formal settlement would be prepared for signing by the parties, they claim there was no |filegally binding settlement until that formal settlement was signed by the parties. They argue the existence of such a condition indicates that the parties did not intend this agreement to be a legally binding settlement.

The plaintiffs also argue that the very fact the defendants filed motions to compel execution of a settlement agreement indicates that the defendants were, themselves, confused as to the existence of a binding and enforceable settlement agreement. The LeBlancs allege that the defendants’ need to compel the “execution of the settlement documents” indicates that no valid compromise existed.

The defendants counter that they were never in any doubt as to the existence of a valid and enforceable compromise. Their need to compel execution of the legally binding compromise enacted at the March 24, 2003 mediation conference was merely the result of Ms. LeBlanc’s failure to fulfill the obligation she undertook by signing the Mediation Settlement Agreement. As a result of her unwillingness to perform that to which she had agreed, it was necessary for the defendants in this matter to obtain an order to compel her to abide by the terms of the agreement. The defendants argue that the formal settlement agreement referenced in the Mediation Settlement Agreement was merely a formality and an additional safeguard, and Ms. LeBlane is bound by her consensual agreement to the terms set forth in the Mediation Settlement Agreement.

The defendants point to a factually similar case decided by the fourth circuit. In Walk Haydel & Assoc. v. Coastal Power Production Co., 98-193, pp. 3-4 (La.App. 4 Cir. 9/30/98), 720 So.2d 372, 373-74, the court upheld an agreement signed by parties participating in a mediation, stating:

This Court has held that a compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended |7when the compromise was reached. Pat O’Brien’s Bar, Inc. v. Franco’s Cocktail Prods., Inc., 615 So.2d 429 (La.App. 4th Cir.1993), writ denied, 617 So.2d 909 (La.1993). In the instant case the parties were involved in a full day of mediation at the end of which they signed a memorandum of settlement which contained several handwritten terms upon which the parties had agreed. The fact that q whole day of negotiations was capped off by the signing of a document which memorialized the agreement between the parties signifies that there had been a meeting of the minds. Otherwise the document would not have been signed, particularly considering who signed.
We must also determine whether this document was sufficient to constitute a legally binding and enforceable agreement. “The only formal essential for a compromise is a writing.” Audubon Ins. Co. v. Farr, 453 So.2d 232, 234 (La.1984). This Court has said “there is no sacrosanct form which must be followed” and “it is not necessary that everything intended to be compromised be in one document.” Charbonnet v. Ochsner, 236 So.2d 86, 88 (La.App. 4th Cir.1970), aff'd, 258 La. 507, 246 So.2d 844 (La.1971). In the instant case, we have a writing and although its terms are handwritten and may encompass less than all the issues between the parties, this does not negate its enforceability. The document in question was in writing and evidenced a meeting of the minds. This Court has stated that a party’s signature on a contract establishes the presumption that he saw and understood the terms of the contract. Barcelona v. Sea Victory Maritime, Inc., 619 So.2d 741 (La.App. 4th Cir. 1993), writ denied, 626 So.2d 1179 (La. 1993). Therefore, it is our opinion that the “memorandum of settlement” is a legally binding agreement.

(Emphasis added).

The trial court agreed with the fourth circuit’s interpretation of what constitutes a binding and enforceable agreement. The LeBlancs cite Anthony v. Liberty Mutual Ins. Co., 99-1730 (La.App. 3 Cir. 4/5/00), 759 So.2d 910, and Soileau v. Allstate Ins. Co., 03-120 (La.App. 3 Cir. 10/15/03), 857 So.2d 1264, writ denied, 03-3170 (La.2/6/04), 865 So.2d 724, as support for their contention that, within this circuit the agreement to reach a settlement, which at most is what they claim the March 24, 2003 Mediation Settlement Agreement actually was, is not a valid, legally binding compromise as required by La.Civ.Code art. 3071.

The defendants note that Anthony and Soileau are easily distinguishable from |sthe present matter in that the “settlement agreements” relied upon in those cases involved the exchange of vague and arguably unprecise letters between counsel, without participation by any clients, as being the alleged writings conferring a settlement. In the present matter, the Mediation Settlement Agreement contains specific terms and conditions and was executed by the parties and their counsel after a full day of mediation.

We find no error in the trial court’s determination that the Mediation Settlement Agreement signed by the parties is a valid and legally binding compromise as provided within the terms of La.Civ.Code art. 3071. By the clear language of the statute, this Mediation Settlement Agreement signed by the parties to this suit constitutes a legal and binding compromise. There was absolutely no evidence presented by the LeBlancs to support their contention that Ms. LeBlanc signed the agreement under threat or coercion by her attorney, or against her free will. For the reasons stated above, this assignment of error is without merit. We affirm the finding of the trial court that the Mediation Settlement Agreement constitutes a meeting of the minds of all parties who signed it, and therefore is legally binding on the LeBlancs.

LeBlanc’s Assignment Z

The LeBlanc’s allege that their pri- or attorney, Mr. Toce, had no authority, either express or implied, to file the Consent Judgment or the Voluntary Motion and Order to Dismiss Ovey LeBlanc’s claims. They allege that their consent was not | gobtained or freely given with respect to those documents, and that the signature appearing on the Voluntary Motion and Order to Dismiss was not the signature of Ovey LeBlanc.

The defendants note that the trial judge found the Mediation Settlement Agreement valid and legally binding, and therefore, by one of the specific terms of the agreement signed by Ms. LeBlanc, her attorney had express authority to file the Consent Judgment with respect to Ms. LeBlanc’s claims against DOTD. Ms. Le-Blanc’s signature appears on the Mediation Settlement Document which declares that a consent judgment will be entered as to the agreement between DOTD and Ms. LeBlanc. By Ms. LeBlanc’s own admission, Mr. Toce was her attorney until April 1, 2003, several days after the Consent Judgment and Voluntary Dismissal were filed at the Iberia Parish Clerk of Court. The defendants argue that Mr. Toce clearly had, not only implied authority to undertake these actions, but express authority to file the Consent Judgment with the court.

The defendants also note that the Le-Blancs present no evidence to support their contention that the signature appearing on the Voluntary Motion and Order to Dismiss Claims of Ovey LeBlanc is not the signature of Mr. LeBlanc. Therefore, the LeBlancs have completely failed to meet their burden of proof and the trial court did not err when it decided that the Consent Judgment and the Voluntary Dismissal were enforceable.

We agree with the defendants. Ms. LeBlanc’s signature on the Mediation Settlement Agreement gave her attorney express authority to file the Consent Judgment that was specified by its terms. Additionally, after a review of the record, we are unable to find any evidence presented by the LeBlancs to support their selij-servingm contention that the signature appearing on the Voluntary Motion and Order to Dismiss was not the signature of Mr. LeBlanc. They have simply failed to meet their burden of proof on this matter. As noted by the trial court, once the Mediation Settlement Agreement is found to be legally binding, and the validity of their attorney’s actions in this matter is established, the request for a new trial becomes moot. We find no basis for reversing the trial court’s decisions in this matter.

Conn’s Assignment of Error

Conn’s asserts one assignment of error for our review. It contends that the trial court was manifestly erroneous in failing to order Julaine LeBlanc to defend and indemnify all defendants against the actions taken by Ovey LeBlanc, including, but not limited to, the payment of fees, costs, and expenses in prosecuting the defendant’s motions to enforce settlement and defense of the plaintiffs motion for a new trial.

The clause of the Mediation Settlement Agreement dealing with defense and indemnity was cited above, but we will provide it again here in order to address this specific assignment of error. The agreement provided that the settlement “includes consortium claims of Mr. Le-Blanc and plaintiff to defend and hold harmless the defendants as to same and indemnify as to consortium claims.” As a general rule, Louisiana law does not provide for the recovery of attorney’s fees absent either a specific statutory provision providing for such relief, or a contractual agreement by the parties to pay attorney fees.

The provision quoted above is quite specific, and clearly shows that, at most, the settlement agreement provides for Ms. Le-Blanc to defend and hold harmless as to Mr. LeBlanc’s consortium claims. As the LeBlanc’s were specifically arguing the validity of the Mediation Settlement Agreement containing the indemnity language, |nand the validity of the Voluntary Motion and Order to Dismiss filed by Mr. Le-Blanc, the trial court was not manifestly erroneous in finding that Ms. LeBlanc was not liable to defend and indemnify the defendants in the present action.

DECREE

The judgment of the trial court is affirmed. All costs of this appeal are cast against the Plaintiffs, Julaine LeBlanc and Ovey LeBlanc.

AFFIRMED.

      . Plaintiffs dismissed the claims of Dustin Courrege, with prejudice, because he is not the child of either plaintiff and was not within the formal custody of either plaintiff.

      . One judge on the panel in Soileau felt that the letters exchanged were sufficiently precise to create a binding agreement to settle, namely the writing judge in this matter, however the majority disagreed. Despite the disagreement among the panel members, the writing judge finds the facts in the present matter are sufficiently distinguishable from Soileau, and the majority's opinion in that case does not preclude our finding that a valid compromise was created in this instance.


author: | THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Daniel PICKETT.
    No. 2003-1492.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 2004.

      G. Paul Marx, Lafayette, LA, for Defen-danVAppellant — Daniel Pickett.
    Earl B. Taylor, District Attorney— Twenty-Seventh Judicial District Court, Alisa Ardoin Gothreaux, Opelousas, LA, for Plaintiff/Appellee — State of Louisiana.
    Daniel Pickett, Opelousas, LA.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., SYLVIA R. COOKS, and OSWALD A. DECUIR, Judges.
   | THIBODEAUX, Chief Judge.

The Defendant, Daniel Pickett, was convicted of second degree murder following a jury trial. He was sentenced to life imprisonment at hard labor, without benefit of probation, parole, or suspension of sentence.

The Defendant appeals his conviction. We affirm.

FACTS

On the evening of July 25, 1991, Susie Lee Pickett, the eighty-six-year-old great-aunt of the Defendant, was beaten and shot. She was found dead the next morning in the bedroom of her home in the rural community of Morrow in St. Landry Parish. Deputies discovered that her attacker had entered her home by breaking a porch window and then kicking in a panel on the door to her kitchen. During the investigation, the Defendant, who lived in a nearby home, submitted DNA samples and the shoes he was wearing to deputies. Several years later, DNA testing revealed the Defendant’s blood sample was a match to a blood smear sample that had been collected from the panel of the victim’s door. Further analysis of the Defendant’s shoe revealed a blood droplet that was matched to the victim’s blood sample. In addition, glass particles collected from the bottom of the Defendant’s shoes were similar to the glass from the broken window at the murder scene.

Failure to Suppress Shoes

The Defendant contends the trial court erred in not suppressing his shoes that he claims were unconstitutionally seized without probable cause or reasonable suspicion. He argues that he did not resist the seizure of his shoes, but acquiesced when the seizing officer told him he had to give them up. The State asserts the Defendant voluntarily gave up his shoes after he was asked by an officer to do so.

12At the hearing on the motion to suppress, St. Landry Parish Detective Vernon Marks testified that on July 28,1991, a few days after the murder of the victim, a mobile command unit had been set up in Morrow. He stated the murder investigation had not centered on a suspect, but that they were interviewing many people in the area. As part of the investigation, Detective Marks met with the Defendant at the command post.

Detective Marks identified the waiver of rights form signed by the Defendant on July 28, 1991, at 4:45 p.m. He stated he read the rights to the Defendant and signed the form as a witness. Detective Marks testified that the Defendant was not threatened, coerced, pressured, induced, or promised anything in exchange for his cooperation. He stated the Defendant was calm and cooperative. Detective Marks testified he asked the Defendant if he understood his rights and if he wished to talk and he said “yes.” Two hours after the interview began, the Defendant signed a written statement denying his involvement in the crime.

Detective Marks stated the Defendant indicated he would do anything to cooperate with the investigation. The Defendant agreed to give blood, saliva, and other samples. He mentioned to the Defendant that he wanted his clothing and he consented. Detective Marks testified the Defendant did not ask any questions or express any hesitation or reservation concerning the request. The Defendant was not asked to submit his clothing, but his shoes were taken into evidence.

Detective Marks testified at the hearing as follows:

Q. And so you, did you communicate to the defendant you were interested in him voluntarily turning over those shoes?
A. Yes.
Q. And his response was?
| oA- He was cooperative.

The Defendant was transported to an area hospital for the collection of his DNA samples. Detective Marks asked Detective Rivette to take the Defendant’s shoes after the samples were obtained.

On cross examination, Detective Marks stated the Defendant was not a suspect nor under arrest at the time he was questioned. The end of Defendant’s written statement reads: “I am willing to take a polygraph, submit saliva, head hair, pubic hair, blood and information on my grandfather’s 22 caliber pistol which was reported stolen a few months ago.” The statement does not mention anything about the Defendant’s shoes. Although the statement specifically lists other items the Defendant had agreed to provide, it does not indicate that the shoes were requested or voluntarily given. Detective Marks testified that he did not tell the Defendant that he had to give up his shoes, but did tell him that “we needed the shoes.” He denied telling the Defendant that he was going to take the shoes. Detective Marks stated he told the Defendant he wanted the shoes.

Detective Marks testified that Detective Rivette met him later and turned over the evidence collected from the Defendant. He stated he did not think Rivette brought the Defendant back to the command post with him at the time.

Chief Detective Rene Speyrer testified at the hearing that he was in and out of the office when the Defendant was being interviewed. He and Detective Marks discussed taking the Defendant’s shoes as part of the investigation. Detective Speyrer was not present when the Defendant was asked for his shoes. He stated that after Detective Rivette returned from the hospital, he brought the Defendant to the command post. With the Defendant standing there, Detective Rivette was told to take the Defendant’s shoes when he brought him home. Detective Speyrer testified the | ¿Defendant did not state any objection. Detective Speyrer stated that he told Rivette not to forget the Defendant is giving “us” his shoes, and to pick up the shoes when he brought the Defendant home. He added that he told Detective Rivette “We need his shoes.” “He’s cooperating.” “He’s giving us everything that we asked for.” Detective Speyrer thought Detective Marks was present for this conversation.

Detective Roland Rivette testified that after he transported the Defendant to the hospital and returned him to the command post Detective Speyrer said “we needed his shoes.” When he brought the Defendant home, he asked him for his shoes and he voluntarily gave them to him without hesitation. On cross examination, Detective Rivette said he told the Defendant they needed his shoes and he gave them to him and walked barefoot into his grandfather’s house. He testified he did not tell the Defendant he did not have to give him his shoes.

The Defendant testified at the hearing that a few days after the murder the police contacted his mother and told her they were coming to pick him up for questioning. He stated he stayed at his mother’s house until a deputy arrived and took him to the mobile command post. The Defendant testified that Detective Marks questioned him. The Defendant stated that he agreed to give a blood sample. He explained that once at the hospital other samples were collected from him. The Defendant testified he consented only to the blood samples.

After leaving the hospital, the Defendant stated he did not remember being returned to the command post, but Detective Rivette had taken him to his uncle’s house in Krotz Springs where his mother was. The Defendant testified as follows:

A. Well, I was getting out of the car, Roland Rivette said, “I hope you’re not planning on going dancing anywhere because I got to have your shoes.” I told him, I lssaid, “That’s the only shoes I got.” He said, “Well you still got to give em up.”
Q. Alright. And did you do that?
A. Yes, sir. I gave em up not knowing if I had any choice to give em up or not. I ...

The Defendant testified that the taking of his shoes was never discussed at the command post, and the first time it was brought up was when he was dropped off by Detective Rivette. He stated that was his only pair of shoes.

On cross examination, the Defendant stated that at the time of the investigation he was on probation for simple burglary. He testified that he moved from his grandfather’s house to his mother’s house the day after the murder because she asked him to move in with her.

In denying the motion to suppress, the trial court stated:

The Court also finds that the physical evidence was properly seized without search warrants. Particularly the shoes. The defendant’s voluntarly [sic] surrendered those items to the Sheriffs Deputies.
Detective Roland Rivette testified and said he asked the defendant for the shoes. He gave them voluntarily. The defendant had offered to cooperate. He gave a number of statements over a period of years. He submitted to polygraph.
When you consider the totality of the circumstances, the defendant freely and voluntarily surrendered the shoes. He wanted to cooperate.

The State bears the burden of proof to show the admissibility of any evidence seized without a warrant. La.Code Crim.P. art. 703(D). In State v. Bargeman, 98-617 (La.App. 3 Cir. 10/28/98), 721 So.2d 964, writ denied, 99-33 (La.5/28/99), 743 So.2d 658, this court stated:

When a trial court rules on a defendant’s motion to suppress, the appellate court must look at the totality of the evidence presented at the hearing on the motion to | (^suppress. The appellate court should not overturn a trial court’s ruling, unless the trial court’s conclusions are not supported by the evidence, or there exists an internal inconsistency in the testimony of the witnesses, or there was a palpable or obvious abuse of discretion. State v. Burkhalter, 428 So.2d 449 (La.1983), and State v. Gaspard, 96-1279 (La.App. 3 Cir. 2/11/98); 709 So.2d 213. The admissibility of evidence seized without a warrant is a question for the trial court. Its conclusions on credibility and the weight of testimony regarding the voluntariness of a consent for admissibility purposes will not be overturned on appeal, unless the conclusions are unsupported by the evidence. State v. Gachot, 609 So.2d 269 (La.App. 3 Cir.1992), writ denied, 617 So.2d 1180 (La.1993), cert. denied, 510 U.S. 980, 114 S.Ct. 478, 126 L.Ed.2d 429 (1993).

Id. at 967.

Based on the totality of the circumstances, the State met its burden of proving the Defendant’s surrender of his shoes was voluntary. Three detectives testified that the Defendant was cooperating with the investigation. Detective Marks and Detective Rivette stated that they asked the Defendant to give up his shoes and he consented. Detective Speyrer testified that he reminded Detective Rivette to get the shoes in front of the Defendant and he did not object. The Defendant denied talking to Detectives Marks or Speyrer about his shoes. He testified that Detective Rivette told him he had to give up his shoes.

The issue of consent in this case turns on the credibility of those testifying and the weight of the evidence. It is not the role of this court to second-guess these determinations of the trial court. Therefore, it cannot be said the trial court abused its discretion in denying the motion to suppress.

Inadmissibility of Expert Testimony

The Defendant complains the trial court erred in allowing expert witness testimony which reached conclusions that were solely within the province of the jury. |7In his brief to this court, the Defendant states: “The State relied on the head of the crime lab to comment on the inferences to be taken from the cumulative forensic evidence.... This witness simply recounted testimony of other experts and reached a conclusion that the science added up to prove what the D.A. suggested.”

The Defendant specifically complained about the expert forensic scientist testimony of Acadiana Crime Lab Director Ray Wickenheiser. The Defendant argues that Wickenheiser made an improper comment on the credibility of the evidence by acting as an “evidence gauge” and presenting argument for the State regarding the weight of the evidence against him. The Defendant does not specify what testimony he is complaining of, but instead cites three pages of the record as evidence of the improper comments.

During direct testimony at trial, Wicken-heiser testified as follows:

Q. Assuming that Ms. Bergen stands up and testifies that the fingerprint, the latent prints that Ms. Colomb testified that she picked up, that they can’t make an identification. They can’t conclude that any one (1) person gave the fingerprints found at the scene. And also assuming that there is expert testimony that the blood found on the shoes and you’ve seen the shoes and we’ve gone through the shoes. That that blood is Susie Pickett’s blood to a scientific certainty ok, so, let me take you through. 1) If the blood as a Scientist, if the blood on the shoe is Ms. Pickett’s shoe, Ms. Pickett’s blood, right?
A. Right.
Q. That’s a scientific, we assume that?
A. Yes, sir.
Q. If glass is scientifically, using the term optically and microscopically indistinguishable from the glass on the apparent point of entry to the Pickett Residence, if one (1) more, I’mma add one (1) more thing, if we assume that those shoes are brand new, they were brought [sic] the day Ms. Pickett was murdered ok?
A. Yes, sir.
IsQ. As a Scientist, is that overwhelming evidence that those shoes or that shoe was in that house when Ms. Pickett was dead?
A. Yes, sir. It’s very significant evidence. It all links to one another. They all make sense as far as you’ve got a broken window. We have glass. You have a person who has been beaten and is bleeding. We have droplets of blood on the top of the shoe versus the bottom of the sole of the shoe which means there is blood that’s being, it’s coming from someone. Either from their mouth or from the nose or it’s being. And then you have not only the victim’s blood and the suspect’s blood involved. It’s very significant. It’s a very, this is good, good evidence that’s comes into the crime laboratory. These are, this is what Forensic Chemistry, Forensic Science is all about. It is to be able to associate these types of evidence in a Court of law.
Q. Can you, I’m talking about the shoes. I’m only talking about the shoes. We’re not talking about the person wearing the shoes. Is there any other reasonable explanation?
BY MR. LOPEZ: Your Honor, I mean this is totally improper now. I mean the last thing was totally improper. This is even more totally improper than it was five (5) seconds ago. This is a, a decision for this Jury to make when they evaluate the testimony. We might as well, Mr. Richard is, we might as well have just allowed all of these people to sit around and then we’ll put em all up here and they make a decision. That’s not what we do in these cases. We’re having this man pass on stuff that he heard in the courtroom. That he didn’t even work on. And now he is, he is asking about the exclusion of every reasonable hypothesis of innocence. Asking him to, to decide for this Jury what the evidence proves and doesn’t prove and the circumstantial nature of it. This is totally improper.
BY THE COURT: Objection overruled Mr. Lopez.
RE-DIRECT EXAMINATION CONTINUES:
Q. Do you know from a scientific stand point as an Expert in the field of Forensic Investigation is there any explanation for that confluence of circumstances other than that shoe was at the place where Ms. Pickett was murdered?
|SA. No, sir. I cannot think of any other, any other explanation for this.

The expert was questioned further as follows:

Q. Let’s talk about the blood. What as an Expert Forensic Scientist what struck you about the fact the blood was on top of the shoe and there was no blood on the bottom of the shoe? What conclusions did you draw as an Expert?
A. One of the things we look at and particularly there is a lot of information outside of the fact that it’s blood and whose it might come from. One of the things we might also look at is how did it originate there. Blood is just, carries a lot of information and how did it, was it wiped on the surface? Was it cast off of a weapon? Did it drop there? Where was it located on an item also can be very important depending on the nature. If someone steps in blood you know obviously it’s going to be on the bottom of a shoe. But if they’re actually actively there when something is going on the blood will be transferred to their clothing items. Perhaps in a very, very, I guess is coming out may squirt and splash; arterial spirting or if it’s coming flying very, very small specks. We’ve had cases where someone indicated they weren’t anywhere near a crime and they actually had little pen dots of blood underneath the brim of their hat. Which is going to show that they were actually there when, when the blood was flying around so to speak. So, by finding blood on top of an item, an actual scene it just indicates that they had to be there when the blood obviously was likely falling on the item and a stain indicating that it was something that was in a liquid form that would actually form a droplet or a stain on the top of the shoe itself.

At trial, the Defendant testified that on July 25, 1991, he was living at his grandfather’s house just down the road from the victim’s house. He stated he had not been at the victim’s house except for visiting many years before she was killed. The Defendant testified that on July 25, 1991, he went to Ville Platte with Tim Sylvester and bought a new shirt and a pair of shoes so he could bartend at Sylvester’s sister’s wedding the next day. He identified the shoes in evidence as the ones he bought and wore that day and evening.

ImThe Defendant explained that he spent the evening drinking and doing drugs with Chris Morgan. He stated Morgan took him home around midnight and he spent the rest of the night there. He denied killing the victim. The Defendant testified that it was not possible that the victim’s blood was on his shoe or that his blood was at the crime scene.

Generally, expert opinion testimony is admissible if “scientific, technical, or other specialized knowledge will assist the trier of fact....” La. Code Evid. art. 702. Specifically, La.Code Evid. art. 704 provides: “Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.”

The Louisiana Supreme Court in State v. Deal, 00-0434 (La.11/28/01), 802 So.2d 1254, cert. denied, 537 U.S. 828, 123 S.Ct. 124, 154 L.Ed.2d 42 (2002), found the expert’s opinion regarding the specific intent for first degree murder to be harmless. The state’s forensic pathologist testified that the injuries inflicted upon the infant victim involved the specific intent to kill or inflict great bodily harm. The expert’s opinion was couched in a hypothetical that mirrored the defendant’s case. The defendant admitted he injured his child; therefore, his specific intent was tantamount to the ultimate issue of his guilt or innocence. The court found the trial court erred, but found the error harmless because the jury could conclude from the defendant’s own statements what his intent toward the infant was when he injured it. The court stated:

Thus, in the absence of Dr. McCormick’s opinion concerning the defendant’s intent, the jury surely could have found that the defendant acted with specific intent to kill or inflict great bodily harm based on the manner in which the infant’s airway was obstructed and that the infant was deliberately “slung” into his crib, causing his Inhead injuries. Dr. McCormick’s testimony was merely stating the obvious.

Id. at 1264-65.

Similarly, in State v. Irish, 00-2086 (La.1/15/02), 807 So.2d 208, cert. denied, 537 U.S. 846, 123 S.Ct. 185, 154 L.Ed.2d 73 (2002), the Louisiana Supreme Court distinguished an expert opinion from a legal conclusion. The court stated:

The first degree murder statute, La. R.S. 14:30, requires a finding of specific intent and, therefore, a defendant lacking this cannot be found guilty under the statute. Thus, the expert’s opinion that the person who shot the victim “intended” to cause immediate death came “exceedingly close to testimony that [in his opinion] the accused was guilty of the crime charged.” State v. Deal, supra at p. 7, 802 So.2d at 1261 (citing Pugh, Handbook on Louisiana Evidence Law, 1998, art. 704, p. 442). However, the testimony about which the present defendant complains was little more than the expert’s assessment of the likely medical impact of a gunshot wound to the head, and not a legal assessment of the defendant’s state of mind at the time of the shooting or an opinion of his guilt or innocence. Further, unlike Deal, the jury in this case had to determine that the defendant was the shooter.
In any event, assuming any error occurred, it was harmless. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1993) (“The inquiry [for purposes of harmless-error analysis] is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.”) Regardless of what words the expert chose to use in responding to the prosecutor’s question, credit should be given to the common sense and fairmindedness of the jurors who understand that the likely purpose of shooting someone in the head at close range with a high-powered rifle is to cause immediate death. State v. Green, 81-2661, 416 So.2d 539, 541 (La.1982) (recognizing “the common sense and fairmindedness of jurors and their ability to distinguish meaningful evidence from unwarranted comments”). The fact that the expert underscored this obvious result in no way prejudiced the defendant. State v. Deal, supra (expert’s “testimony regarding the defendant’s intent was merely stating the obvious”); (emphasis in original); State v. Sanders, 93-0001, p. 18 (La.11/30/94), 648 So.2d 1272, 1286-1287; State v. Code, 627 So.2d 1373, 1384-1385 (La. 1993). This assignment of error lacks merit.

Id. at 212-13.

In this case, Wickenheiser testified that as a forensic expert the evidence supported the scenario that the shoe was at the place of the victim’s murder. Wicken-heiser also testified that the evidence was overwhelming that those shoes were in that house when the victim was dead. Wickenheiser gave a summarizing opinion of the evidence before the jury and concluded that the State’s theory of the case was the only reasonable explanation. The expert’s opinion invaded the province of the jury as fact-finder.

The State argues that the expert testified only about the shoe and its presence at the crime scene and did not state how the presence of the shoe related to the murderer. The State contends that the expert did not testify regarding the ultimate issue in the case. The State cited State v. Code, 627 So.2d 1373 (La.1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1870, 128 L.Ed.2d 490 (1994), and distinguished it from this case.

In Code, the Louisiana Supreme Court found that experts had given improper opinion testimony, but found the error to be harmless. A fingerprint expert testified that he believed the prints left by the defendant on the victim’s bathtub were left when he drowned the victim. The court found the expert’s testimony “expressly violated the prohibition against expert testimony on an ultimate issue of fact.” Id. at 1384. Another fingerprint and crime scene investigation expert testified that the bathtub palm prints were matched to the defendant’s and had been left by the murderer. The court found this expert’s statements implicitly violated the same rule. Finding error, the court conducted a harmless error analysis and stated: “Considering the admissible evidence concerning the palm prints, no rational juror could find those facts without also finding the ultimate fact of the defendant’s guilt.” Id. at 1385.

113The State asserts that in the Code case an expert stated the palm prints were left at the murder scene by the perpetrator. The State distinguishes this case because, it says, the experts only testified about the shoe’s presence at the crime scene and did not specifically relate the shoe to the Defendant. This argument is centered on semantics as the evidence at trial had already established that the shoe in question was the Defendant’s. Therefore, the expert’s opinion that the shoe was at the murder scene was tantamount to a pronouncement that the Defendant committed the murder. The expert’s opinion testimony was in violation of La.Code Evid. art. 704.

Because the expert opinion invaded the province of the jury by addressing the Defendant’s guilt or innocence, a harmless error analysis is necessary. At trial, the physical evidence tying the Defendant to the crime scene was uneontroverted. The Defendant’s DNA was found in a blood smear on the panel of the door that was kicked in at the victim’s house. The Defendant’s shoe contained a blood droplet with the victim’s DNA and glass particles similar to the glass found in the broken window of the house.

Additional evidence at trial revealed the Defendant was seen the day after the murder with fresh cuts on his leg. The Defendant testified he had cut his leg on a weedeater at work. The morning after the murder Defendant told a family member that a deputy told him the victim had been shot. Family members testified they were not told the cause of death until hours after Defendant’s statement. Chief Detective Speyrer testified that he told his deputies to initially withhold all information on the victim’s cause of death.

A forensic scientist testified that the shoeprint on the door panel of the victim’s house was similar to the Defendant’s shoes. However, she stated that insufficient detail on the print prevented her from making a positive identification 114match. The Defendant testified that the shoes taken by deputies were a new pair that he had purchased on the day of the murder. He denied committing the murder, and stated he did not know how his blood was found at the scene or how the victim’s blood got on his shoes. The Defendant testified that he did not go to the victim’s house after the murder.

Given this evidence, a reasonable jury could have concluded that the Defendant was at the scene of the crime. Even without the expert’s opinion, the answer to the ultimate issue in the case was obvious and the guilty verdict was unattributable to the erroneous testimony. Therefore, the expert’s opinion was harmless error.

Failure to Conduct a Daubert Hearing

The Defendant contends that the trial court erred in allowing DNA evidence at trial without conducting a proper Dau- bert hearing concerning the reliability of the evidence. In its brief to this court, the State argues that the Defendant cannot raise this issue on appeal as the evidence was not objected to at trial. It is true that the trial record is void of any objections to the admissibility of the DNA evidence. In addition, a review of the record reveals that the Defendant did not file a motion requesting that a Daubert hearing be held.

Therefore, this issue was not preserved at trial and is not properly before this court. See La.Code Crim.P. art. 841.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction is affirmed.

AFFIRMED.

      . The standard of admissibility for determining the reliability of expert scientific evidence is set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995).


author: hDECUIR, Judge.

text:
    Matthew BRAXTON v. RYAN’S FAMILY STEAKHOUSE.
    No. 2004-148.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      Matthew J. Ungarino, David I. Borde-lon, Ungarino & Eckert, L.L.C., Metairie, LA, for Defendant/Appellant, Ryan’s Family Steakhouse.
    Payne Williams, Williams Family Law Firm, Natchitoches, LA, for Plaintiff/Ap-pellee, Matthew Braxton.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   hDECUIR, Judge.

Defendant, Ryan’s Family Steakhouse, appeals a judgment of the workers’ compensation judge finding it liable for benefits, penalties, and attorney fees arising from a job-related accident suffered by the claimant, Matthew Braxton.

FACTS

On February 26, 2002, Braxton alleges that he injured his back while lifting containers of potatoes and onions in the course and scope of his employment as a grill cook at Ryan’s. He claims to have verbally notified his supervisor and at least one witness saw him speaking to the general manager, David Pinkston. None of the managers recall being notified and an accident report was not filed. The workers’ compensation judge found that Brax-ton suffered a job-related injury and awarded medical and compensation benefits as well as penalties and attorney fees. Ryan’s lodged this appeal.

JOB-RELATED ACCIDENT

Ryan’s first contends that the workers’ compensation judge erred in finding that Braxton proved he suffered a job-related injury. We disagree.

Appellate review in workers’ compensation cases is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. The appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one in light of the entire record. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1998). Deference 12is due to the factfinder’s determinations regarding the credibility of witnesses “for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell, 549 So.2d at 844.

The worker’s burden of proof in establishing the occurrence of a job-related accident is preponderance of the evidence. Bruno v. Harbert Int'l, Inc., 593 So.2d 357 (La.1992). When an accident is unwit-nessed, the worker’s testimony alone may be sufficient to establish the accident occurred if, (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by circumstances following the alleged accident.

In the present case, the accident was unwitnessed. However, at least one coworker confirmed that Braxton told them of the alleged injury on the day it occurred and that she saw him tell the general manager. All of the Ryan’s managers that testified denied that Braxton reported the accident to them. They also disputed elements of Braxton’s story regarding the weight and number of potatoes. These assertions were rebutted by Braxton’s personnel file, which contained excuses for missing work and a test which contained answers tending to corroborate Braxton’s story. It is evident from our review of the record that the workers’ compensation judge found Braxton’s testimony more credible than that of Ryan’s managers.

Accordingly, we find no error in the workers’ compensation judge’s determination that Braxton proved a job-related accident by a preponderance of the evidence. This assignment has no merit.

PENALTIES AND ATTORNEY FEES

Ryan’s next contends that the trial court erred in awarding penalties and attorney fees. We disagree.

|sThe determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact, and the trial court’s finding must not be disturbed on appeal absent manifest error. Wiltz v. Baudin’s Sausage Kitchen, 99-930 (La.App. 3 Cir. 6/19/00), 763 So.2d 111, writ denied, 00-2172 (La.10/13/00), 771 So.2d 650. “To avoid penalties and attorneys fees for the nonpayment of benefits, the employer or insurer is under a continuing duty to investigate, to assemble, and to assess factual information before denying benefits.” George v. Guillory, 00-591, p. 13 (LaApp. 3 Cir. 11/2/00), 776 So.2d 1200, 1209.

The workers’ compensation judge found that Ryan’s never conducted sufficient investigation into Braxton’s claims and essentially decided to deny the claim from the outset. Under these circumstances, we find no manifest error in the award of penalties and attorney fees. This assignment has no merit.

Braxton answered this appeal requesting additional attorney fees for defense of this appeal. Finding such fees to be warranted, we award $1,000.00 in attorney fees for defense of this appeal.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Appellant is taxed with all costs of these proceedings and ordered to pay an additional $1,000.00 in attorney fees to claimant’s counsel for defense of this appeal.

AFFIRMED AS AMENDED.


author: BGREMILLION, Judge.

text:
    Travis Lee STEVENS v. Darren Keith BRUCE, et al.
    No. 2004-133.
    Court of Appeal of Louisiana, Third Circuit.
    June 2, 2004.

      R. Chadwick Edwards, Jr., Edwards & Edwards, Abbeville, LA, for Plaintiff/Appellant, Travis Lee Stevens, Kim Stevens.
    Charley Hutchens, Lafayette, LA, for Defendants/Appellees, Darren Keith Bruce, Tina Elizabeth Bruce.
    Charles R. Minyard, Lafayette, LA, for Defendants/Appellees, Minos Breaux, Janet Breaux.
    Vincent J. Saitta, Colomb & Saitta, Lafayette, LA, for Defendants/Appellees, Vesta Breaux Pellerin, Judy Breaux Tou-chet, Elaine Breaux Broussard, Darrell Breaux.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   BGREMILLION, Judge.

The plaintiffs, Travis and Kim Stevens, appeal the judgment of the trial court sustaining an exception of prescription in favor of the defendants, Darren and Tina Bruce, and an exception of no right of action in favor of the defendants, Vesta Breaux Pellerin, Judy Breaux Touchet, Cynthia Breaux McAdams, Elaine Breaux Broussard, and Darrell Breaux (the Vesta Breaux defendants). For the following reasons, we reverse and remand.

FACTS

The Stevens purchased their tract of property from the Bruces on October 25, 2000. Prior to that, the Bruces had purchased two tracts comprising the subject tract from the Vesta Breaux defendants and Minus and Janet Breaux (the Minus Breaux defendants), on June 25, 1998 and June 30, 1998, respectively. On October 21, 2001, the Stevens began excavating the tract in order to construct a pond and raise the elevation of the surrounding property prior to constructing a home. In doing so, they discovered several buried drums of hazardous waste, which had previously been placed there by John Brous-sard of Broussard Chemical, Inc., a previous co-owner and/or lessee of the property. The Stevens notified the Louisiana Department of Environmental Quality (DEQ), which later discovered other caches of buried hazardous waste. Due to the contamination caused by the hazardous waste, the Stevens have been prevented from utilizing their property.

On September 9, 2002, the Stevens filed a Petition in Redhibition against the Bruces and the Vesta Breaux defendants alleging that the presence of the hazardous waste on their property was a redhibitory defect pursuant to La.Civ.Code I,,art. 2520. They further alleged that the Bruces and the Vesta Breaux defendants knew that the Breaux property had been the subject of a DEQ investigation and that they failed to register the property with DEQ as required by La.R.S. 30:2039. Finally, the Stevens stated that had they known of Broussard Chemical’s use of the property or that a DEQ clean-up site was located adjacent to this tract, they would not have purchased the property.

In response, the Vesta Breaux defendants filed a peremptory exception of prescription alleging that the Stevens’ claim of redhibition had prescribed. In the alternative, they urged a peremptory exception of no right of action. The Bruces answered the petition and filed a cross claim against their ancestors-in-title to the first tract, the Vesta Breaux defendants, and a third party demand against their ancestors-in-title to the second tract, the Minus Breaux defendants. In response, the Minus Breaux defendants filed peremptory exceptions of prescription against the principal and third party demands and a peremptory exception of no cause of action against the Bruces. Thereafter, the Bruces filed a peremptory exception of no cause of action against the Stevens’ claims.

Following a hearing on the exceptions, the trial court sustained the Bruces’ peremptory exception of prescription and the Vesta Breaux defendants’ peremptory exception of no right of action. The Stevens sought writs based on the trial court’s judgment, however, this court denied their writ application as being premature since they had an adequate remedy through appeal. Thereafter, the Stevens moved for a final judgment in this matter; an order designating the rulings as final and appeal-able was rendered by the trial court on November 13, 2003. This appeal 13by the Stevens followed.

ISSUES

On appeal, the Stevens argue that the trial court erred in sustaining the peremptory exceptions of prescription and no right of action.

REDHIBITION

An action in redhibition is found in La. Civ.Code art. 2520. A redhibitory defect is one which “renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale.” La.Civ.Code art. 2520. A redhibitory action prescribes against a seller, who was unaware of the defect, four years from the date of delivery of the thing to the buyer or one year from the date of discovery of the defect by the buyer, whichever occurs first. La. Civ. Code art. 2543(A)(1). Louisiana Civil Code Article 2534(A)(2) provides that, “when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.”

In reviewing prescriptive statutes:

Prescriptive statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it. Bouterie v. Crane, 616 So.2d 657 (La.1993); Bustamento v. Tucker, 607 So.2d 532 (La.1992). The burden of proof on the prescription issue lies with the party asserting it; however, where the petition shows on its face that the claim has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended.

Amoco Prod. Co. v. Texaco, Inc., 02-240, pp. 7-8 (La.App. 3 Cir. 1/29/03), 838 So.2d 14821, 829, writ denied, 03-1102, 03-1104 (La.6/6/03), 845 So.2d 1096.

The Stevens first argue that the trial court erred in transferring the burden of proof from the Bruces to them to prove that their cause of action had not prescribed.

The petition reveals that the Stevens purchased their tract of land from the Bruces on October 25, 2000. On October 10, 2001, they discovered the buried hazardous waste on their property and, thereafter, filed their redhibitory action against . the Bruces on September 9, 2002. A review of the petition on its face reveals that the petition has prescribed. In the petition, the Stevens stated that they were utilizing the property for a homesite, thus, on its face, La.Civ.Code art. 2534(A)(2) would apply, as it appears that residdntial immovable property was involved. Since the petition has prescribed on its face, the burden of proof shifted to the Stevens to prove that the applicable prescriptive period was interrupted or suspended. We find no error in the trial court’s requirement that the Stevens rebut the presumption of prescription.

The Stevens next argue that the .trial court erred in holding that “residential” and “commercial” immovable property, as used in La.Civ.Code art. 2534(A)(2), applies to all sales of immovable property.

In sustaining the exception of prescription in favor of the Bruces, the judgment of the trial court states that “the legislative intent in creating a one (1) year prescriptive period for actions in redhibition relating to sale of residential and commercial immovable property under Civil Code Article 2534 A(2), applies to all sales of immovable property.” We disagree.

|sThe rules pertaining to statutory interpretation were recently laid out by the supreme court in Palmer v. Louisiana State Board of Elementary and Secondary Education, 02-2043, pp. 5-6 (La.4/9/03), 842 So.2d 363, 367-68:

Principles of judicial interpretation of statutes are designed to ascertain and enforce the intent of the legislature in enacting the statute. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294[c]iting Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819 (La.1992). The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. Succession of Boyter, 99-0761, p. 9 (La.1/7/00), 756 So.2d 1122, 1128. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further inquiry made in search of the legislative intent. La. C.C. art. 9; La. R.S. 1:4. However, when a law is susceptible of different meanings, “it must be interpreted as having the meaning that best conforms to the purpose of the law.” La. C.C. art. 10.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the provision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. Bond, supra at 302; Boyter, supra at 1129; Stogner, supra at 766. The statute must therefore be applied and interpreted in a manner that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Boyter, 756 at 1129. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. Langlois v. East Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761 So.2d 504, 507; Boyter, 756 at 1129. Furthermore, “the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065, p. 8 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).
The starting point for the interpretation of any statute is the language of the statute itself. Cat’s Meow, Inc. v. City of New Orleans, 98-0601, p. 15 (La.10/20/98), 720 So.2d 1186, 1198; Touchard v. Williams, 617 So.2d 885 (La.1993).

| ^“Residential” is defined in Merriam Webster’s Collegiate Dictionary, 996 (10th ed.1993), as “used as a residence or by residents”; “restricted to or occupied by residences”; and “of or relating to residence or residences.” “Residence” is defined as “a building used as a home.” Id. “Commercial” is defined as “occupied with or engaged in commerce or work intended for commerce.” Id. at 231. Blacks Law Dictionary, 270 (6th ed.1990), defines “commercial” as “[rjelates to or is connected with trade and traffic or commerce in general; is occupied with business and commerce.”

Considering these definitions, we find that residential property pertains to property used for residences or dwellings, whereas commercial property applies to areas where trade or business is conducted. Thus, immovable property may be classified as residential or commercial. However, these two types of classifications are not exclusive of the ways in which immovable property may be classified. Other types include agricultural, farm, or range land, park or recreational land, and swamp, marsh, or wetlands. Thus, strictly construing this statute against prescription and in favor of the Stevens’ claim, we find that “residential” and “commercial” do not apply in all instances where immovable property is conveyed. Had the legislature intended such, it would have said “all immovable property.” Accordingly, we find that classifications of immovable property exist other than residential and commercial.

At the hearing on the exceptions, counsel for the Stevens argued that the property at issue was raw, unimproved land. However, we find that whether the property was classified as residential or some' other type of property, the Stevens’ claim has not prescribed based on the application of the doctrine of contra non 17valentum.

In Picard v. Vermilion Parish School Board, 00-1222, pp. 3-6 (La.App. 3 Cir. 4/4/01), 783 So.2d 590, 594-95, writ denied, 01-1346 (La.6/22/01), 794 So.2d 794, we stated with regard to contra non valentum:

According to this theory, prescription does not begin to run until “a plaintiff either knew or should have known of a cause of action, even if that knowledge does not occur until long after the wrongful conduct at issue has occurred.” Simmons v. Templeton, 97-2349, 98-43, p. 4 (La.App. 4 Cir. 11/10/98), 723 So.2d 1009, 1012, writs denied, 98-3050, 98-3060 (La.2/5/99); 738 So.2d 4, 738 So.2d 5. Louisiana jurisprudence considers contra non valentum to be “an exceptional remedy ... in direct contradiction to the articles in the Civil Code” which must be “strictly construed.” Harsh v. Calogero, 615 So.2d 420, 422 (La.App. 4 Cir.1993).
Under Louisiana law, the doctrine of contra non valentum halts the running of prescription when the circumstances of the case fall into one of the four categories:
(1) when courts are legally closed; (2) when administrative or contractual restraints delay the plaintiffs action; (3) when the defendant prevents the plaintiff from bringing suit; and (4) when the plaintiff does not know nor reasonably should know of the cause of action.
In re Med. Review Panel Proceeding Vaidyanathan, 98-0289 (La.App. 4 Cir.9/23/98); 719 So.2d 604, writ denied, 98-2674 (La.12/18/98); 732 So.2d 1238; Chaney v. State Through the Department of Health and Human Resources, 432 So.2d 256, 258-59 (La.1983). Although contra non valentum is a legal principle, its application to the facts of the case and a determination of whether or not the Plaintiffs were indeed prevented from filing their claim under one of the four circumstances is an issue of fact. Therefore, the trial court’s finding of fact on this issue is subject to the manifest error, clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840 (La.1989).
The principles of contra non valentum do not halt the running of prescription “if the plaintiffs ignorance is the result of his own willfulness or neglect.” Matthews v. Sun Exploration & Prod. Co., 521 So.2d 1192, 1197 (La.App. 2 Cir. 1988). That is, the plaintiff will be | adeemed to know what he could by “reasonable diligence” have learned. Id. Prescription runs from the time that the plaintiff has actual or constructive knowledge of the act, which has been defined as “the time at which the plaintiff has information sufficient to excite attention and prompt further inquiry.” National Council on Compensation Ins. v. Quixx Temporary Serv., Inc., 95-725, p. 7 (La.App. 4 Cir. 11/16/95), 665 So.2d 120, 124. Prescription does not begin to run at the first indication that the plaintiff may have suffered harm, but rather it begins to run “when plaintiff has reasonable basis to pursue claim against specific defendant.” Jordan v. Employee Transfer Corp., 509 So.2d 420, 424 (La.1987). The heart of the inquiry into constructive knowledge is the reasonableness of plaintiffs inaction. Id.

Here, we find that the facts of this case fall squarely under the fourth category of contra non valentum. This category, known as the “discovery rule,” provides that “prescription does not accrue against a party ignorant of its rights provided that ignorance is not willful, negligent or unreasonable.” Amoco Prod. Co., 838 So.2d at 830. In this instance, the Stevens purchased their tract of land from the Bruces and commenced excavating a pond one year later. It was at that time that they discovered the buried hazardous waste on their property. Thus, they were ignorant of their redhibition claim until they dug it up. After unearthing the hazardous waste, the Stevens filed suit against their ancestors in title within one year of their discovery. The judgment of the trial court finding that the application of contra non valentum was unavailable to the Stevens due to an absence of bad faith on the part of the Bruces is clearly wrong. Such a showing is not required by the discovery rule. Accordingly, we find that contra non valentum applied to suspend the running of prescription against the Stevens’ claim. Since they filed their petition in redhibition within one year of their discovery of the buried hazardous waste, their petition was timely. The trial court’s judgment sustaining the peremptory exception of prescription in favor of the Bruces is reversed, and this matter is remanded for further proceedings.

BRIGHT OF ACTION

In their final assignment of error, the Stevens argue that the trial court erred in granting the peremptory exception of no right of action in favor of the Vesta Breaux defendants.

In Hargroder v. Columbia Gulf Transmission Co., 290 So.2d 874, 875 (La.1974), the supreme court distinguished between an exception of no right of action and an exception of no cause of action:

In Roy O. Martin Lumber Co. v. St. Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954), this Court distinguished the two exceptions as follows:
‘Generally speaking, an exception of no right of action serves to question the right of a plaintiff to maintain this suit, i.e., ... his interest in the subject matter of the proceeding, whereas an exception of no cause of action addresses itself to the sufficiency in law of the petition and the exhibits attached thereto. Outdoor Electric Advertising v. Saurage, 207 La. 344, 21 So.2d 375[ (1945)]; Termini v. McCormick, 208 La. 221, 23 So.2d 52[ (1945)] and Bartholomew v. Impastato, La.App., 12 So.2d 700[ (1943)]. The latter is triable entirely on the face of the papers, while evidence may be received under an exception of no right of action for the purpose of showing that plaintiff does not possess the right he claims or that the right does not exist. Soniat v. White, 153 La. 424, 96 So. 19[ (1923)]; Schmidt v. Conservative Homestead Association, 181 La. 369, 159 So. 587[ (1935)]; Duplain v. Wiltz, supra (La.App.[1937], 174 So. 652) and La Casse v. New Orleans, T. & M.R. Co., 135 La. 129, 64 So. 1012[ (1914)].’

(Emphasis added).

The trial court sustained the exception of no right of action and dismissed the Stevens’ claim under La.R.S. 30:2039, based on an absence of evidence relating |into the Vesta Breaux defendants’ knowledge of the hazardous waste located on their property. We reverse the trial court’s finding as it went beyond the parameters of a hearing on an exception of no right of action. The Vesta Breaux defendants were Inlimited to presenting evidence showing that the Stevens did not possess the right they claim or that the right did not exist. Here, the trial court enquired into the merits of the matter by requesting evidence pertaining to their knowledge of the hazardous waste. This was error. The Stevens clearly have a . right of action to bring this suit against the Vesta Breaux defendants. The judgment of the trial court is reversed and the matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the peremptory exceptions of prescription and no right of action are reversed and this matter is remanded for further proceedings. The costs of this appeal are assessed fifty percent to the defendants-appellees, Darren and Tina Bruce, and fifty percent to the defendants/appellees, Vesta Breaux Pelle-rin, Judy Breaux Touchet, Cynthia Breaux McAdams, Elaine Breaux Broussard, and Darrell Breaux.

REVERSED AND REMANDED.

      . Louisiana Revised Statute 30:2039 provides:
      A. If a landowner has actual or constructive knowledge that his property:
      (1) Has been used for the disposal of hazardous waste or as a solid waste landfill, except as provided in rules, and such wastes remain on the properly, and if recording of the notice provided for herein is required by the Louisiana Solid Waste Regulations or the Louisiana Hazardous Waste Regulations; or
      (2) Has been identified by the department as an inactive or abandoned solid waste landfill or hazardous waste site, he shall cause notice of the identification of the location of the waste site to be recorded in the mortgage and conveyance records of the parish in which the property is located. Such notice shall be made in a form approved by the secretary and within the time specified by the secretary. If a landowner fails or refuses to record such notice, the secretary may, if he determines that the public interest requires, and after due notice and an opportunity for a hearing has been given to a landowner, cause such notice to be recorded. The clerk of court shall forward to the Department of Environmental Quality a copy of each notice recorded by a landowner in accordance with this Subsection.
      B.(1) If any person wishes to remove such notice, he shall notify the secretary prior to requesting the removal from the clerk of court in the parish where the property is located. The request shall specify the facts supporting removal of the notice, including any evidence that the waste no longer poses a potential threat to health or the environment. Upon finding that the waste no longer poses a potential threat to health or the environment, the secretary shall approve removal of the notice.
      (2) If approval is granted by the secretary, the request may be made by affidavit to the clerk of court for the removal of the notice and it shall be removed. Within ten days after removal, the clerk of court shall send a notice of the removal to the secretary. If the secretary objects to the removal of such notice, or fails to make a final determination upon the request within ninety days, the person desiring to have the notice removed may petition the court in the parish where the property is located for removal of the notice and after a contradictory hearing between the landowner, the clerk of court, and the secretary or his designee, the court may grant such relief upon adequate proof by the petitioner that the property no longer contains the waste which may pose a potential threat to health or to the environment.
      C. This Section shall not apply to any facility which is operating under a permit issued by the department until such time as such notice is required by an order of the secretary, by a permit, or by rule or regulation applicable to such facility.
      D. The failure of a landowner to file the required notice may constitute grounds for an action in redhibition under the applicable provisions of Civil Code Articles 2520 et seq., unless the purchaser has actual or constructive knowledge that the property has been used for such purposes.
      E. Any action under this Section must be commenced within one year from the date the purchaser first knows of the existence of the fact which gives rise to the action, but in any event within three years of the date upon which the purchaser acquired his ownership interest in the property. Venue shall be in any parish in which the property or any portion thereof is located.