author: 13GAIDRY, J. |, KUHN, Judge, ^DOWNING, J.,

text:
    MOTOROLA, INC. v. ASSOCIATED INDEMNITY CORPORATION, Continental Casualty Company, National Surety Company, Transportation Insurance Company, Zurich American Insurance Company.
    No. 2002 CA 1351.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.

      S. Gene Fendler, Harold J. Flanagan, New Orleans, J.W. Montgomery, III, Pittsburgh, PA, Counsel for Plaintiff/Appellant Motorola, Inc.
    David P. Salley, New Orleans, Philip R. King, Chicago, IL, Counsel for Defendant/Appellee Zurich American Insurance Co.
    Robert A. Vosbein, William J. Kelly, III, New Orleans, Counsel for Defendants/Ap-pellees Continental Casualty Company and Transportation Insurance Co.
    Michael Durand, Lafayette, Counsel for Defendants/Appellees Associated Indemnity Corporation and National Surety Corporation.
    Edward A. Rodrigue, Jr., New Orleans, Counsel for Defendant/Appellee St. Paul Surplus Lines Insurance Company.

      Eavelyn T. Brooks, New Orleans, Counsel for Defendants/Appellees National Union Fire Insurance Company of Pittsburgh, Pennsylvania and Illinois National Insurance Company.
    Before: CARTER, C.J., KUHN, DOWNING, GAIDRY, and McDONALD, JJ.
   13GAIDRY, J.

This appeal addresses the merits of partial summary judgments rendered in a declaratory judgment action, relating to the issues of liability insurers’ coverage and duty to defend their insured in various class action lawsuits. The plaintiff-appellant, Motorola, Inc. (Motorola), appeals those summary judgments in favor of its insurers, Associated Indemnity Company (Associated), Hartford Insurance Company (Hartford), and Continental Casualty Company (Continental). We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Motorola is a manufacturer of cellular wireless handheld telephones (“cell phones”). It was named as defendant in a number of class action lawsuits (the “Class Actions”) seeking recovery of sums of money allegedly owed by Motorola and other cell phone manufacturers to alleviate customers’ allegedly harmful exposure to radio frequency radiation. As we have already observed in our prior decisions in this appeal and the related appeal, all of the Class Actions share a common conceptual framework in terms of their factual allegations and the relief sought. Additionally, Motorola was named as a defendant in two separate individual actions seeking damages for brain cancer alleged to have been caused by Motorola cell phones.

Motorola filed this action for declaratory judgment and breach of contract against ten of its primary and excess liability insurers seeking a determination that their policies provide coverage for the claims in the underlying Class Actions and individual lawsuits, that they have the duty to defend Motorola for those claims, and that they are liable for damages to ^Motorola for their failure to defend it in the Class Actions and the two individual actions.

The trial court initially granted partial summary judgment in favor of Zurich American Insurance Company (Zurich) on November 28, 2001, dismissing it as a party defendant, and denied Motorola’s motion for summary judgment as to the merits of the coverage dispute. On March 28, 2002, the trial court similarly granted the motions for partial summary judgment of Associated, Hartford, and Continental, and denied Motorola’s cross-motion addressing the same issues. Unlike the motions filed by Associated and Hartford, Continental’s motion expressly excluded consideration of issues relating to the two individual lawsuits, as Continental had previously consented to defend Motorola under a reservation of its rights to later challenge applicability of coverage. Thus, the partial summary judgment in its favor did not have the effect of dismissing Continental or terminating the declaratory judgment action as between it and Motorola. Motorola appealed the partial summary judgments rendered against it in two separate appeals. In Motorola, Inc. v. Associated Indemnity Corporation (Motorola III), 02-0716 (La.App. 1st Cir.6/25/04), 878 So.2d 824, we reversed the partial summary judgment in favor of Zurich. This appeal involves the subsequent summary judgments rendered on March 28, 2002.

PROCEDURAL DISCUSSION

This court, sitting en banc, previously examined our subject matter jurisdiction herein sua sponte, given the character of the judgments at issue 1 fias partial summary judgments. Motorola II, 02-1351, p. 5 (La.App. 1st Cir.10/22/03), 867 So.2d 723, 725. Because the judgments in favor of Associated and Hartford resolved the merits of all issues between them and Motorola presented in the context of the declaratory judgment action, those judgments were held to be partial final judgments under La. C.C.P. art. 1915(A)(1) and (A)(3), immediately appealable without the need for a designation of finality or “certification” by the trial court. Motorola II, 02-1351 at p. 7, 867 So.2d at 727. As to the partial summary judgment in favor of Continental, we held that the trial court’s designation of that judgment as final, without express written or oral reasons for such determination, was adequate compliance with La. C.C.P. art. 1915(B)’s mandate. Motorola II, 02-1351 at p. 16, 867 So.2d at 732. Finally, we held that where the reasons for certification of a partial judgment are neither provided by the trial court nor otherwise apparent from the record, the appellate court should conduct a de novo review of the propriety of the certification. Id.

Even though the trial court did not articulate the reasons for its certification of the partial summary judgment in favor of Continental, both its reasons for doing so and the policy factors supporting appeala-bility are self-evident. The same coverage issue here has already been determined in the context of the related appeal in Motorola III, and will be determined with regard to the judgments in favor of Associated and Hartford. Additionally, the issue is of great importance to the progress and cost of defense of the Class Actions and is clearly ripe for consideration. There is therefore “no just' reason for delay” in addressing the merits of the judgment in favor of Continental as such delay would only needlessly fragment the posture of this declaratory judgment action. Cf. Van ex rel. White v. Davis, 00-0206, pp. 7-8 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 484-85. Accordingly, there is | fino need for us to conduct a de novo review of the propriety of the certification. Motorola II, 02-1351 at p. 16, 867 So.2d at 732.

ANALYSIS

The insurers who are parties to the present appeal have conceded in brief that the relevant coverage provisions in their policies at issue are virtually identical for practical purposes with those of the Zurich policies at issue in Motorola III, and have in large part adopted by reference the description of the issues and argument presented in Zurich’s brief in Motorola III. Thus, the same considerations which prompted our reversal of the partial summary judgment in favor of Zurich in Motorola III apply with equal force here, including the considerations relating to the various “business risk” exclusions. Accordingly, the partial summary judgments in favor of Associated, Hartford, and Continental must be reversed. Examination of additional policy language in the policies at issue here only reinforces our ultimate conclusions in Motorola III relating to the primary issue.

Like the policies issued by its co-defendant, Zurich, Associated’s policy requires that damages covered under its liability coverage be caused by an “occurrence.” An “occurrence” is defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Our emphasis.) Thus, the policy clearly contemplates coverage for bodily injury resulting from “repeated exposure to conditions.” There is no requirement that each incident of exposure result in injury, only 17that the cumulative or progressive effect of repeated exposure result in injury.

The term “bodily injury” is defined in Associated’s policy as “bodily injury, sickness or disease sustained by any person which occurs during the policy period, including death at any time resulting therefrom.” “Sickness” is generally considered synonymous with “illness,” and has been defined as “a disordered, weakened, or unsound condition,” Merriam-Webster’s Collegiate Dictionary 1069 (10th ed.1993), or “an ailment of such a character as to affect the general soundness and health.” Black’s Law Dictionary 1380 (6th ed.1990). “Disease” may be defined as “a condition of the living animal or plant body or one of its parts that impairs normal functioning,” Merriam-Webster’s Collegiate Dictionary 332 (10th ed.1993), or a “[djeviation from the healthy or normal condition of any of the functions or tissues of the body.” Black’s Law Dictionary 467 (6th ed.1990).

We conclude, as we did in Motorola III, that the allegations of the class action plaintiffs are broad enough to be reasonably interpreted as asserting claims for “damages because of bodily injury,” thereby invoking the duty to defend the insured for such damages as may be covered by each | «policy. If the insurers intended to specifically limit the scope of damages covered by their policies to “traditional” bodily injury damages, they could have chosen narrower, more precise language. Certainly, the task of ultimately apportioning the insurers’ respective shares of any liability for the damages sought will be formidable, but not insurmountable. But that issue is for another court, at another time, as is the tenuous issue of any liability for such damages to future cell phone users.

CONCLUSION

The judgment of the trial court granting summary judgment is reversed, and the case is remanded to the trial court. All costs of this appeal are assessed equally against the defendants-appellees, Associated, Hartford, and Continental.

REVERSED AND REMANDED.

KUHN, J., concurs with reasons.

McDONALD, j., dissents.

DOWNING, J., dissents and assigns reasons.

|, KUHN, Judge,

concurring.

I concur because I disagree with the majority’s conclusion that the grant of a partial summary judgment in favor of Zurich American Insurance Company dismissing the insurer from this lawsuit is a final judgment under La. C.C.P. art. 1915 A. But this court concluded otherwise, see Motorola, Inc. v. Associated Indem. Corp., 2002-0716, pp. 10-11 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 720-21, and I am duty bound to adhere to that en banc determination.

^DOWNING, J.,

dissents and assigns reasons.

If a man purchases a Coke with a deceased cockroach therein, drinks it and becomes ill, then his injury would be covered under a bodily injury policy. However, if he does not drink the Coke then his claim is only for the replacement cost of the Coke and recovery is excluded. This would be a business risk because of a defective product not a “bodily injury” claim, even though there was potential for bodily injury, and recovery would be excluded under the bodily injury policy.

Similarly, you can’t sue Ford in tort for a Pinto gas tank alleging you could be killed if it blows up. That is a product claim, not causing bodily injury, for the gas tank and not covered under this type of policy.

Never have I seen pleadings so intentionally and meticulously crafted to not claim damages because of bodily injury than the pleadings of the class action plaintiffs.

The result of this case will be that a person who has not yet suffered symptoms of carpal tunnel syndrome, but who may have microscopic ^cellular injury and desires to have a pad for the keyboard, may sue in tort for the cost of the pad. The insurer will now have to defend every red-hibition claim where a creative lawyer can allege some potential but asymptomatic injury.

Interpreting these policies in this strained and liberal manner will convert every redhibition claim where there is potential for future bodily injury into a covered claim. That is not the purpose of this type of insurance and this opinion will cause havoc in the insurance industry.

I would affirm the trial court that there is no coverage and no duty to defend.

      . All of the defendant insurers provided primary or excess liability coverage to Motorola at various times over the alleged period of use of the members of the classes of plaintiffs in the Class Actions. Associated issued a policy of comprehensive general liability (CGL) insurance to Motorola, in effect from July 1, 1983 through July 1, 1985. Hartford issued a CGL policy in effect from July 1, 1986 through July 1, 1987. Continental issued a series of six primary CGL policies in effect from July 1, 1987 through July 1, 2001, as well as an umbrella liability policy in effect from July 1, 1987 through July 1, 1988.

      . Hartford's policy defines "occurrence” in the same manner, but Continental's policies define "occurrence” as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” There is no temporal limitation of coverage to the policy period within the latter definition, although such a limitation is stated elsewhere in Continental's policies.

      . A pertinent example of relevant allegations is that of the Naquin plaintiffs' allegations that the class members "are exposed to [radio frequency radiation] which causes physical effects, changes and the risk of long-term injury including the potential for very significant long-term health problems,” and that the radio frequency radiation "creates health risks and adverse effects by causing nerve damage, cellular damage, cellular dysfunction and/or other injury to humans.”

      .This definition does not limit coverage for death occurring after the policy period, as long as the "bodily injury, sickness or disease” contributing to death were "sustained” during the policy period. Continental's policies generally define "bodily injury” in the identical language. Hartford’s policy evidently contains the same definition of "bodily injury,” according to the allegations of its answer to Motorola's petition, quoting the same language. However, the page of its basic policy agreement containing that definition, page 4, was inadvertently omitted from the record on appeal, due to the failure to photocopy the reverse pages (pages 2, 4, 6, and 8) of the double-sided policy agreement. A similar error in Zurich’s policy did not prevent our resolution of the issues in Motorola III, however. See Motorola III, 02-0716 at p. 10, n. 7, 878 So.2d at 831, n. 7.


source: Caselaw Access Project

author: j#uhn, j.

license: Public Domain

text:
    MULL & MULL v. Charles KOZAK.
    No. 2003 CA 0668.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.

      Bruce S. Kingsdorf, New Orleans, Counsel for Plaintiff/Appellee Mull & Mull.
    Frank Tomeny, III, Baton Rouge, Counsel for Defendant/Appellant Charles Ko-zak.
    Before: WHIPPLE, KUHN, and McDonald, jj.
   j#uhn, j.

Defendant-appellant, Charles Kozak, appeals a judgment, which: (1) denied his declinatory, dilatory, and peremptory exceptions; (2) granted the request of plaintiff-appellee, Mull & Mull (a Louisiana Partnership) (M & M) for supplemental relief for a “decree” ordering a third-party escrow agent to disburse funds described in a previously-rendered, devolutively-ap-pealed declaratory judgment; and (3) ordered disbursement of attorneys’ fees on deposit in an escrow fund in accordance with the terms of the previously-rendered judgment. We reverse.

BACKGROUND

Kozak and M & M were awarded $8,833,435.37 in attorneys’ fees for their representation of ninety Hemophiliac/AIDS clients who had opted out of a global settlement in a federal class action proceeding. After disagreement on the division of the attorneys’ fees arose between the parties of this appeal, Kozak and M & M filed various claims against each other seeking, among other things, declaratory relief.

On April 22, 2002, the trial court rendered a declaratory judgment, addressing, among other things, the division of attorneys’ fees between Kozak and M & M; decreeing that Kozak and M & M had entered into a quantum meruit fee sharing arrangement; and allocating 85% of the total attorney fee to M & M with the remaining 15% to Kozak. Kozak devolu-tively appealed the April 22, 2002 declaratory judgment. See Barham & Arceneaux v. Kozak, 2002-2325 (La.App. 1st Cir.3/12/04), 874 So.2d 228 (awarding M & M further damages in an amount equal to the legal interest on $292,128.02 and otherwise affirming the trial court’s judgment).

Prior to this court’s disposition on appellate review of the April 22, 2002 judgment, M & M filed a petition for further relief based on the declaratory judgment in the trial court. According to the allegations of the supplemental relief petition, the total attorneys’ fees were escrowed into a joint account at Hibernia National Bank, and an escrow agent (the Escrow Agent) was appointed pursuant to an agreement between M & M and Kozak (the Escrow Agreement). The Escrow Agreement expressly stipulated conditions for which the escrow agent was authorized to disburse the funds held in the Hibernia National Bank joint account. Noting that the April 22, 2002 judgment had been de-volutively appealed, M & M averred entitlement to a judgment executing or giving effect to the declaratory judgment under the terms of the Escrow Agreement. Claiming that the April 22, 2002 declaratory judgment was “now executory,” M & M specifically requested a “decree” ordering and authorizing the third-party escrow agent to disburse the funds held in the Hibernia National Bank joint account.

Kozak filed declinatory, dilatory, and peremptory exceptions, answered M & M’s pleading, and asserted affirmative defenses. After a hearing, the trial court denied the exceptions, granted M & M the requested relief, and signed a [¿judgment in conformity with its rulings. This suspen-sive appeal by Kozak followed, and M & M has answered the appeal.

DISCUSSION

Louisiana Code of Civil Procedure article 1878 provides:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

M & M filed its petition seeking supplemental relief based on the April 22, 2002 declaratory judgment, attaching to its pleading the Escrow Agreement executed between the parties. The supplemental petition specifically requests distribution of the funds held in the Hibernia National Bank joint account in accordance with the terms of the earlier-rendered declaratory judgment, averring that the amounts to which M & M is entitled were fixed, determinable, and “now executory” under the provisions of the April 22, 2002 judgment, and that a decree directed to the Escrow Agent ordering disbursement of the funds held in the Hibernia National Bank joint account was necessary and/or proper relief.

The Escrow Agreement, which is undated, states that the Escrow Agent shall only disburse funds from the joint account:

A. Upon written consent of [M & M’s expressly-identified representative]; and [Kozak or his expressly-identified attorney]; or alternatively,
B. Within thirty (30) days of execution of a final judgment ordering said disbursement, assuming no suspensive appeal is taken within thirty days; or . alternatively,
|fiC. Within ten days after an interlocutory decree ordering said disbursement, in the event there is not notice of filing of a writ application within the ten days.

Relying only on the terms of the Escrow Agreement and acknowledging that Kozak appealed the April 22, 2002 judgment, M & M urges that under La. C.C.P. art. 2088(7), the trial court retained jurisdiction to execute or give effect to the judgment because the appeal taken by Ko-zak was merely devolutive. Thus, M & M reasons, the “[f]urther relief’ the trial court is permitted to grant under La. C.C.P. art. 1878 includes issuance of an order of disbursement of the funds held in the Hibernia National Bank joint account.

Although nothing under La. C.C.P. art. 1878 prevented M & M from introducing evidence to support its claimed entitlement to the requested relief, at the hearing of this matter neither M & M nor Kozak chose to do so. M & M acknowledges that Kozak has not provided written consent, and it does not contend that the judgment under scrutiny is an interlocutory decree ordering disbursement. Instead, M & M urges the stipulation allowing for the funds on deposit in the Hibernia National Bank joint account to be withdrawn “within thirty (30) days of execution of a final [j]udgment ordering said disbursement, assuming no suspensive appeal is taken within the thirty day period,” has been satisfied by the April 22, 2002 declaratory judgment, which expressly “allocated the funds in dispute between [M & M] and Kozak.”

The function of a declaratory judgment is simply to establish the rights of parties or to express the opinion of the court on question of law without ordering anything to be done. See La. C.C.P. arts. 1871 and 1881; Williams v. City of Baton Rouge, 2002-0339, p. 6 (La.App. 1st Cir.2/14/03), 848 So.2d 9, 13. The | ^distinctive characteristic of a declaratory judgment is that the declaration stands by itself with no executory process following as a matter of course, so that it is distinguished from a direct action in that it does not seek execution or performance from the defendant or the opposing litigants. Billingsley v. City of Baton Rouge, 95-2162 (La.App. 1st Cir.4/30/96), 673 So.2d 300, 302, writ denied, 96-1490 (La.9/20/96), 679 So.2d 439.

Because the function of a declaratory judgment is simply to establish the rights of the parties or to express an opinion of the court on a question of law without ordering anything to be done, the devolu-tively-appealed, April 22, 2002 declaratory judgment could not — as a matter of law-— include an order of disbursement. Lacking an order of disbursement, on the showing made, the stipulation permitting the Escrow Agent to disburse the funds on deposit in the Hibernia National Bank joint account “within thirty (30) days of execution of a final [¡Judgment ordering said disbursement, assuming no suspensive appeal is taken within the thirty day period” is not fulfilled by the April 22, 2002, declaratory judgment. Thus, resting solely on the terms of the Escrow Agreement, M & M has failed to prove a decree authorizing and ordering the Escrow Agent to disburse the funds is necessary or proper so as to satisfy its evidentiary burden under La. C.C.P. art. 1878 as determined by the parties through their Escrow Agreement.

We expressly note that our holding does not preclude M & M from seeking appropriate supplemental relief based on the April 22, 2002 judgment founded on a proper evidentiary showing. M & M’s prayer for supplemental relief did not request, and the trial court did not issue, a money judgment in conformity with the | ./allocations set forth in the April 22, 2002 declaratory judgment. Moreover, the parties did not introduce any testimonial evidence lending insight into the confection of or the terms utilized in the Escrow Agreement. And in this review, the validity of the terms of the Escrow Agreement or the propriety of its application to the parties has not been asserted. The judgment under review purported to apply the terms of the Escrow Agreement as support of the order of disbursement of the funds in the joint account and to authorize the Escrow Agent to disburse the funds ostensibly in accordance with the allocations stated in the April 22, 2002 judgment. But this record demonstrates that by the terms of their agreement, the disbursement and the Escrow Agent’s authority to disburse hinged on an order of disbursement, which the April 22, 2002 declaratory judgment did not declare.

Additionally noteworthy is that nothing in this record establishes that the Escrow Agent was joined in the hearing or otherwise made a party to the requested relief directed at him. See La. C.C.P. art. 641 (mandating the joinder of a person as a party in the action when, in his absence, complete relief cannot be accorded among those already parties). Furthermore, based on only the four corners of the Escrow Agreement, we cannot ascertain the scope of the Escrow Agent’s duties so as to determine whether his role includes any contractually-delegated responsibility for “any adverse party whose rights have been adjudicated by the declaratory judgment,” thereby requiring his appearance before issuance of supplemental relief under La. C.C.P. art. 1878.

We find additional problems with the judgment under review. While the judgment grants M & M’s request for supplemental relief, ordering that the funds | ^deposited in the Hibernia National Bank joint account “shall be disbursed in accordance with the allocations set forth in the April 22, 2002 Judgment,” there are no specific monetary amounts accompanying that provision. The November 14, 2002 judgment includes that the Escrow Agent:

is hereby authorized to disburse funds on deposit in accordance with the terms of the [April 22, 2002, declaratory] Judgment and [the] Escrow Agreement, with Charles Kozak being entitled to receive distribution in the sum of $1,367,121.61, which sum includes a proportionate share of interest earned in the [joint account] through November 3, 2002, and with [M & M] being entitled to receive a distribution of the remainder of the funds in the [joint account] as of November 3, 2002, including a proportionate share of the interest earned in the [joint account] through November 3, 2002, or the sum of $6,570,752.20.

But according to the terms of the April 22, 2002 declaratory judgment, the total amount of attorneys’ fees for which the parties were making claims was $8,833,435.37, with Kozak having been declared entitled to the sum of $1,325,015.21, or fifteen percent, and M & M’s eighty-five percent share amounting to $7,508,420.16. Although M & M’s petition for supplemental relief claimed that portions of the total attorneys’ fees for which Kozak did not have a claim have been withdrawn from the Hibernia National Bank joint account — presumably by the written consent of the parties — -nothing establishes the amount that has been removed. Therefore, this record fails to establish that the order of disbursement in the sum of $6,570,752.20 is in conformity with the April 22, 2002 judgment. And while the November 14, 2002 judgment authorized disbursement of proportionate. | flamounts of interest to the sum each party is purportedly entitled to receive, imputed amounts lack evidentiary support.

For all these reasons, we find that M & M failed to establish through evidence that it is entitled to the supplemental relief it requested. Accordingly, the trial court’s judgment is reversed.

ANSWER TO APPEAL

Because the trial court’s judgment is reversed, M & M is not entitled to damages for frivolous appeal. The relief requested in M & M’s answer is denied.

DECREE

The trial court’s judgment is reversed. Appeal costs are assessed against plaintiff-appellee, Mull & Mull (a Louisiana Partnership).

REVERSED. ANSWER TO APPEAL DENIED.

      . Barham & Arceneaux v. Kozak, 2002-2325 (La.App. 1st Cir.3/12/04), 874 So.2d 228, fully sets out the factual and procedural history of this case.

      . Kozak intervened in the lawsuits of the Hemophiliac/AIDS clients filed in the Nineteenth Judicial District Court and the Civil District Court for Orleans Parish, asserting entitlement to a portion of the awarded attorneys' fees. Pursuant to signed orders of those district courts, the claimed attorneys’ fees were permitted to be escrowed into the joint account at Hibernia National Bank.

      . Two documents, presumably reflecting interest activity for the Hibernia National Bank joint account, were filed into the record before the hearing. Mindful that the date the Escrow Agreement was executed is not established by this record, we note that the documents indicate that total interest paid on the account for the year ending 2001 amounted to $114,049.64, and that the amount of interest paid on the account through September 30, 2002, was $102,429.84. Assuming these unsubstantiated documents duly reflect the amounts of interest paid from inception of the account, the record simply is devoid of evidence supporting an amount attributable to the period between September 30, 2002, and November 14, 2002. Calculating Kozak’s fifteen percent of $216,479.48, which is the total interest paid for 2001 through September 30, 2002, $32,471.93 would be his portion. But the difference between the April 22, 2002 allocation of fifteen percent (i.e., $1,367,121.61) and the amount awarded in the November 14, 2002 judgment is $42,106.40, leaving unaccounted the sum of $9,634.47. And while the unsubstantiated documents setting forth interest reflect the amount of $10,624.56 for the single month of September 2002, even if we were to impute that single month's earned interest to the remaining 45 days between September 30, 2002, and November 14, 2002, when the trial court signed this judgment, the proportionate share of fifteen percent for which Kozak is entitled amounts to $2,390.40. Thus, under the most relaxed standards, the difference between the sum allocated by the April 22, 2002 declaratory judgment and the amount the trial court authorized the Escrow Agent to disburse in the November 14, 2002 judgment fails to account for a minimum of $7,244.07. Furthermore, because M & M withdrew unspecified sums from the joint account, this court cannot calculate interest on the balance or mathematically ascertain the propriety of the authorization of disbursement of the sum of $6,570,752.20 to M & M. We are also unable to determine whether the sum of $6,438,431.02, stated in the November 14, 2002 judgment as the principal amount due to M & M from the joint account, for which the trial court also decreed M & M was entitled to recover legal interest from Kozak, accurately reflects the purported allocation stated in the April 22, 2002 declaratory judgment.


author: LGAIDRY, J.

text:
    STATE of Louisiana v. Jamey Joseph ALBARADO
    No. 2003 KA 2504.
    Court of Appeal of Louisiana, First Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 18, 2004.

      Donald Gandell, Assistant District Attorney, Gonzales, Counsel for Plaintiff/Ap-pellee State of Louisiana.
    M. Michele Fournet, Baton Rouge, Counsel for Defendant/Appellant Jamey Joseph Albarado.
    Before: FOIL, FITZSIMMONS, and GAIDRY, JJ.
   LGAIDRY, J.

The defendant, Jamey Joseph Albarado, was charged by grand jury indictment with one count of aggravated crime against nature (count I), a violation of La. R.S. 14:89.1, and with one count of indecent behavior with a juvenile (count II), a violation of La. R.S. 14:81. Pursuant to a plea bargain, the State agreed to nolle prosequi count I, and the defendant pled guilty to count II. On count II, the defendant was sentenced to seven years at hard labor and ordered to complete all sex offender notifications and registrations upon his release from prison. He moved for reconsideration of sentence, but the motion was denied. Albarado appealed, designating two assignments of error. However, one of the assignments of error was withdrawn by the appellant prior to oral arguments in this case. We affirm the conviction and sentence.

FACTS

Due to the defendant’s guilty plea, there was no trial testimony concerning the facts in this matter. However, the State set forth a factual basis for count II at the Boykin hearing in this case. The defendant agreed with the factual basis.

The factual basis was as follows: On various occasions between October 25, 2001 and December 2, 2001, the defendant, date of birth February 18,1969, committed indecent behavior with a juvenile, date of birth January 15, 1986, by open-mouth kissing her, by touching her breasts and vaginal area both over and under her clothing, by having the juvenile touch the defendant’s penis both over and under his clothing, and by performing oral sex upon the juvenile. The indecent acts occurred with the juvenile student at Ascension Catholic High School on the school grounds, at school sponsored events, on bus trips, and at a private residence in the parish of Ascension.

\ .EXCESSIVE SENTENCE

In his sole remaining assignment of error, the defendant contends the trial court violated his constitutional right against excessive punishment by imposing the maximum sentence upon him. He cites a host of other decisions, claiming the defendants therein received lesser sentences than he did in the instant case for conduct more reprehensible than the conduct in the instant case.

Article I, section 20, of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one’s sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 99-2868, pp. 10-11 (La.App. 1st Cir.10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La.10/5/01), 798 So.2d 962.

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. La. R.S. 14:81(C). The defendant was 1¿sentenced to seven years at hard labor and ordered to complete all sex offender notifications and registrations upon his release from prison.

The trial court filed extensive reasons for sentence in this matter, to-wit:

This is the case of a thirty-four (34) year old white male officially classified as a first felony offender who pled guilty to the offense of Indecent Behavior with a Juvenile on February 18, 2003. Sentencing was deferred and a Pre-Sen-tence Investigation Report was ordered and is filed herein and attached hereto and made a part hereof by reference and has been made available to the defendant and his counsel.
On various occasions between October 25, 2001 and December 2, 2001, Jamey Albarado committed indecent behavior with a juvenile by open-mouth kissing her, touching her breasts and vaginal area, both over and under her clothes and having the victim touch his penis both over and under his clothes, and by performing oral sex upon the victim. The indecent acts occurred with this juvenile student at Ascension Catholic High School on school grounds, at school sponsored events on bus trips and at a private residence within the Parish of Ascension.
The Court has decided to incarcerate this defendant and will state for the record, its reasons therefore as mandated by Article 894.1 of the Code of Criminal Procedure.
The Court believes that there is an undue risk that during the period of a suspended sentence or probation that this defendant would commit another crime; that he is [in] need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that any lesser sentence than the one to be imposed herein would deprecate the seriousness of this offense.
Aside from the serious nature of the crime perpetrated by this defendant upon this naive student is the fact that he exploited his position as a teacher who supervised this child and who betrayed this trust.
Obviously the scarring effect of the defendant’s actions upon the victim is of monumental proportion and it is quite possible that the life of the victim will never be the same.
The totality of circumstances in this case persuades this Court that there is an undue risk that the defendant may become involved in similar crimes in the future were he placed on probation and such a risk with the precious lives of our community is not one that this Court is prepared to take.
|fiIn considering the facts relative to suspension of sentence or probation, this Court makes the following findings:
As [has] been previously mentioned, the defendant caused serious harm to the victim. It would be hard for this Court to convince itself that he was not aware of the serious harm being inflicted upon the student and the only justification or provocation which the Court finds is the defendant’s desire to satisfy his own feelings of lust. Therefore, there are no substantial grounds tending to excuse or justify the defendant’s conduct.
According to the Pre-Sentence Investigation Report, this defendant does not have a history of prior delinquency or criminal activity prior to the instant offense and just the opposite, he has led a law abiding life for a substantial period of time before the commission of the present [offense]. However, he has serious charges pending as previously mentioned.
The Court believes that the criminal conduct resulted from criminal circumstances that would likely recur and this defendant would possibly commit similar crimes in the future and for these reasons, the Court feels that he may not likely affirmatively respond to probationary treatment.
The Court firmly believes to inflict such serious physical, as well as psychological harm upon this young victim, is a crime of the magnitude which requires incarceration. It is hoped that this incarceration, together with whatever treatment this defendant may receive, may enable him to control his problems and perhaps at some point, become a respected member of the community.
The Court is keenly aware of the crisis proportion of the problem in this country of sexual child abuse and molestation of children in general.
Failure to incarcerate this defendant would seriously deprecate the seriousness of these crimes, and in some measure, would perpetrate [sic] this problem in general.
One of the factors listed under Article 894.1 is that the offender knew or should have known that the victim of these offenses was particularly vulnerable or incapable of resistance due to youth. Clearly this factor applies in this case, as the defendant had gained the trust of his student. Mr. Albarado clearly took advantage of her and her vulnerability. Teachers have incredible influence on their students. Mr. Albarado also betrayed the trust of his students, their parents and his employer.
|fiAs has been previously mentioned, this offense has resulted in a significant permanent psychological injury to the victim.

The sentencing comparisons made by the defendant are of little value. It is well settled that sentences must be individualized to the particular offender and to the particular offense committed. State v. Banks, 612 So.2d 822, 828 (La.App. 1st Cir.1992), writ denied, 614 So.2d 1254 (La. 1993). The sentence imposed on count II was not grossly disproportionate to the severity of the offense, and thus, was not unconstitutionally excessive.

Further, the record fully supports imposition of a maximum sentence for count II. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040, p. 4 (La.App. 1st Cir.11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La.5/15/98), 719 So.2d 459. Count II was the most serious offense because, as noted by the trial judge, “the scarring effect of the defendant’s actions upon the victim [was] of monumental proportion and it is quite possible that the life of the victim will never be the same.” The defendant was the worst offender because, also as noted by the trial judge, “[the defendant] exploited his position as a teacher who supervised [the victim] and who betrayed this trust.”

Additionally, in imposing a maximum sentence, a court may consider the fact that the defendant’s penalty exposure was significantly reduced due to plea-bargaining. See State v. Lanclos, 419 So.2d 475, 478 (La.1982). The plea bargain in the instant case resulted in the defendant avoiding a penalty on count I of imprisonment at hard labor for not less than three nor more than fifteen years without benefit of suspension of sentence, probation, or parole. See La. R.S. 14:89.1(B).

[7Although the sentence imposed in this case is severe, we cannot say that the trial court abused its wide discretion, considering defendant’s reduced penalty-exposure due to the plea bargain, as well as the gravity of the offense and the position of control that the defendant was in as the victim’s teacher and coach. This assignment of error is without merit.

DECREE

For the above reasons, the defendant’s conviction and sentence are affirmed. Costs of this appeal are assessed to defendant, Jamey Joseph Albarado.

CONVICTION AND SENTENCE AFFIRMED.


author: I,PEATROSS, J. B CARAWAY, J.,

text:
    Gregory M. TAYLOR, Plaintiff-Appellant v. TOMMIE’S GAMING and Bridgefield Insurance Company, Defendants-Appellees.
    No. 38,568-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    June 25, 2004.
    Rehearing Denied Aug. 12, 2004.

      Fischer & McMahon, by Mark K. Man-no, for Appellant.
    Eskridge E. Smith, Jr., by Eskridge E. Smith, Jr., Linda S. Blackman, Bossier City, for Appellees, Tommie’s Novelty Gaming and Bridgefleld Casualty Insurance Company.
    The Wanko Law Firm, LLC, by D. Steven Wanko, Jr., for Appellee, U.S. Specialty Insurance Company.
    Before CARAWAY, PEATROSS & DREW, JJ.
   I,PEATROSS, J.

This appeal arises out of a disputed claim for workers’ compensation benefits between claimant, Gregory Taylor, and his employer, Tommie’s Novelty and Gaming (“Tommie’s”). The WCJ dismissed Taylor’s claim for benefits and awarded Tommie’s, Bridgefleld Insurance Company (“Bridgefleld”) and U.S. Specialty Insurance Company (“Specialty”), restitution under La. R.S. 23:1208. The WCJ denied Defendants’ request for penalties and ordered the parties to brief the issue of the amount of restitution due and set that matter for later hearing. The WCJ signed a subsequent judgment setting restitution due to Bridgefleld at $12,833.62 and the amount due to Specialty at $62,340.37. Taylor now appeals and Defendants Tommie’s and Bridgefleld answered the appeal. For the reasons stated herein, we reverse and remand in part and affirm in part.

FACTS

Taylor was injured in a car accident during the course and scope of his employment with Tommie’s on November 9, 2000. His injuries included herniated disks and Dr. Marco Ramos performed surgery on Taylor’s neck. No disputed workers’ compensation claim was filed for this injury; Specialty, Tommie’s then workers’ compensation insurer, paid Taylor medical and indemnity benefits in the amount of $40,432.14. In May 2001, Taylor returned to light duty work at Tommie’s; and, in August 2001, he began his regular duty work as a video poker technician. Taylor alleges that, on September 14, 2001, he sustained another work-related injury to his neck while moving a 700-pound pool table at Tommie’s place of business. Either the same or next day, Taylor claims to have |2injured his neck again moving a pin ball machine to Tommie’s residence. Collectively, these events form the basis of Taylor’s injury for which he seeks compensation in the present' suit. Taylor claims the second injury was actually a “re-injury” of the prior herniated disks suffered in the November 2000 work-related automobile accident. Between the two injuries, Tommie’s changed workers’ compensation carriers from Specialty to Bridgefleld, so Bridgefleld was the carrier at the time of the injury providing the basis for the instant workers’ compensation claim. Taylor initially named only Bridgefleld as defendant in the suit, but later added Specialty as a defendant on the theory that the second injury was an aggravation of the first, which occurred while Specialty covered Tommie’s. Specialty disputed the claim and refused to pay benefits. Bridgefield paid medical expenses in the amount of $3,746.11 and disputed the remainder of the claim. Bridgefield filed a cross-claim against Specialty alleging that, to the extent the current injury was a result of the prior neck injury from the November 2000 automobile accident, Specialty was liable for medical and indemnity benefits and penalties and attorney fees.

Specialty and Bridgefield filed reconven-tional demands against Taylor alleging that he made false statements in order to obtain compensation benefits and, therefore, under La. R.S. 28:1208, he forfeited his right to any benefits and should be ordered to pay full restitution for any benefits paid to him and reasonable costs of the investigation plus attorney |3fees. Taylor filed an exception of vagueness in response to Specialty’s reconventional demand, which was denied.

Trial was held on this matter on April 15, 2003. At the close of Taylor’s testimony, Defendants moved for an involuntary dismissal which was granted by the WCJ. The WCJ found that Taylor had violated La. R.S. 23:1208 and that Specialty and Bridgefield were entitled to restitution. The WCJ refused to cast Taylor with a civil penalty and did not award attorney fees. A judgment was entered to that effect, holding the amount of restitution open pending a hearing and submission of briefs on the issue. Following that hearing, a second judgment was entered awarding restitution to Bridgefield in the amount of $12,833.62 and to Specialty in the amount of $62,340.37. Taylor’s motion for new trial was denied.

This appeal ensued, with Taylor raising the following assignments of error:

1. The trial court erred granting defendant’s Motion for Involuntary Dismissal before the close of plaintiffs case-in-chief.
2. The trial court committed manifest error by denying plaintiffs Motion for New Trial.
3. The trial court erred in failing to sustain plaintiffs Exception of Vagueness.
4. The trial court erred in denying plaintiffs request to proffer exhibits.
5. The trial court erred in refusing to set a hearing on the issue of whether a successor Judge should have decided the Motion for New Trial.
6. The trial court erred in ruling that appellant committed fraud in violation of La. R.S. 23:1208.
7. The trial court committed manifest error in ruling that restitution is owed by the plaintiff to the defendant.
14,8. The trial court erred in setting the amounts of restitution owed by the plaintiff to the defendants.

Defendants Tommie’s and Bridgefield answered the appeal asserting that the restitution award in favor of Tommie’s and Bridgefield should be increased and the restitution award in favor of Specialty should be reduced. Alternatively, Tommie’s and Bridgefield urge that, if the restitution awards are affirmed, this court remand the matter for a ruling on their claim filed against Specialty.

DISCUSSION

Fraud, Forfeiture of Benefits and Entitlement to Restitution

We will first address the substantive finding of fraud, forfeiture of Taylor’s benefits and Defendant’s entitlement to restitution. In assignments of error numbers 6 and 7, Taylor argues that the WCJ committed manifest error in finding fraud and in awarding Defendants restitution. We disagree. La. R.S. 23:1208 provides, in pertinent part:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
B. It shall be unlawful for any person, whether present or absent, directly or indirectly, to aid and abet an employer or claimant, or directly or indirectly, counsel an employer or claimant to willfully make a false statement or representation.
Q * * *
(2) Whoever violates any provision of this Section, when the benefits claimed or payments obtained have a value of two thousand five hundred dollars or more, but less than a value of ten thousand dollars shall be imprisoned, with or without hard labor, for not more than five years, or fined not more than five thousand dollars, or both.
_k* * *
(4) Notwithstanding any provision of law to the contrary which defines “benefits claimed or payments obtained”, for purposes of Subsection C of this Section, the definition of “benefits claimed or payments obtained” shall include the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expense, and the reasonable costs of investigation and litigation.
D. In addition to the criminal penalties provided for in Subsection C of this Section, any person violating the provisions of this Section may be assessed civil penalties by the workers’ compensation judge of not less than five hundred dollars nor more than five thousand dollars, and may be ordered to make restitution. Restitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This statute authorizes forfeiture of benefits upon proof that (1) there is a false statement or representation; (2) it is willfully made; and, (3) it is made for the purpose of obtaining or defeating any benefit or payment. Morton v. Wal-Mart Stores, Inc., 36,398 (La.App.2d Cir.10/25/02), 830 So.2d 533, writ denied, 02-2814 (La.2/7/03), 836 So.2d 101, citing Resweber v. Haroil Construction Co., 94-2708 (La.9/5/95), 660 So.2d 7; and Smalley v. Integrity, Inc., 31,247 (La.App.2d Cir.12/9/98), 722 So.2d 332, writ denied, 99-0072 (La.3/19/99), 739 So.2d 782. The statute applies to any false statement or misrepresentation willfully by a claimant for the purpose of obtaining benefits. Morton, supra; Resweber, supra. La. R.S. 23:1208 is generally applicable once an accident has allegedly occurred and a claim is made. Id. Further, in Morton we noted:

|fiIn enacting and amending La.R.S. 23:1208, the legislature made a policy decision that willful and deliberately false statements made specifically for the purpose of obtaining workers’ compensation benefits are an attempt to defraud the workers’ compensation system and should be dealt with harshly. The legislature has shown a continued effort over the years to make La.R.S. 28:1208 easier to enforce and to make its penalties stronger. It is clear from the history of the statute that the legislature intended that any false statements or representations willfully made for the purpose of obtaining benefits would result in forfeiture of those benefits and this legislative intent cannot be ignored. See Resweber, supra.

Whether a workers’ compensation claimant has forfeited his right to benefits by making a false statement for the purpose of obtaining benefits is a question of fact that will not be disturbed on appeal absent manifest error. Morton, supra; Bossier Electric v. Cubley, 35,852 (La.App.2d Cir.6/14/02), 821 So.2d 685.

In the present ease, the WCJ specifically described three instances of false statements or misrepresentations in support of her finding of fraud. On review, we find that the record contains ample support for each of these false statements or misrepresentations. By way of background, we note that, after resigning from Tommie’s, Taylor went to work for Louisiana Gaming, owned by Harold Rosbottom. The last paycheck he received from Rosbottom was dated February 28, 2002. The first misrepresentation by Taylor concerns his testimony that he had not been employed or received any wages for work since February 2002. Taylor acknowledged that he was receiving $1,000 per month from Ros-bottom beginning in March 2002, but Taylor characterized this money as “hush money” or payments to ensure Taylor would keep confidential trade secrets, etc., to which he had been privy while working for Louisiana Gaming. Taylor testified that he was not |7performing any work for this money in terms of servicing video poker machines or locations or setting up video poker contacts for Rosbottom. Several items of email correspondence were introduced, however, that specifically indicate that Taylor was performing such services for this monthly payment. The WCJ’s conclusion that Taylor was engaging in work activity in exchange for this payment after February 2002 is unquestionably supported by the record and we find no error in her decision that Taylor made false statements in this regard. The WCJ further found that this false testimony was willful and made for the purpose of obtaining benefits, a finding with which we concur. Taylor is not a novice to the workers’ compensation system, having been on both the claimant and employer side of similar disputes on several occasions in the past. Taylor was aware that he could not obtain benefits if he was working. We find no error in the conclusion that Taylor’s attempt to characterize his receipt of money from Rosbottom as something other than wages was designed to allow him to obtain benefits in contravention of the statute.

Second, the WCJ found that Taylor made false statements regarding prior accidents and injuries and specifically cited his statements concerning an automobile accident that occurred on January 25, 2002, in which Taylor was injured. During a deposition taken in June 2002, he characterized the accident as a “fender-bender” and stated that he was not injured and did not seek medical treatment following the accident. In his deposition taken in September 2002, he admitted making a police report at the time of the | ^January 25, 2002 automobile accident, but maintained that he was not injured. In his trial testimony, however, he admitted that he did in fact seek medical treatment at the emergency room the night of that accident, which is borne out by the emergency room record. The WCJ found that the mischaracteriza-tions of the seriousness of the accident to the insurance companies was willful and an attempt to conceal his injuries from the accident so that it would not affect his benefits. We agree with the WCJ that Taylor knew that an intervening injury would be an obstacle in his workers’ compensation claim against Tommie’s.

Third, the WCJ found that Taylor had not told Dr. Ramos that he had gone to the emergency room after the January 25, 2002 automobile accident. Taylor can-celled a re-check appointment with Dr. Ramos scheduled for just six days after the accident for the stated reason that his attorney had advised him not to return to Dr. Ramos until financial matters had been resolved. When Taylor next saw Dr. Ramos, on March 4, 2002, the doctor’s record indicates that Taylor described his condition as deteriorating with only a brief mention that he was involved in an automobile accident. No details of the accident or injury were reported and there is no indication that Dr. Ramos knew that Taylor had sought emergency room treatment for injuries resulting from the accident.

The WCJ also describes a misrepresentation about a prior injury and ensuing workers’ compensation claim arising out of an offshore accident that occurred in 1981. Taylor testified at trial that he did not recall the |fldetails of the injury or treatment, but what he did recall was that he suffered an injury to his head in this offshore accident. The medical records, however, reveal that he suffered a head, neck and shoulder injury, with long-term complaints of severe neck pain and pain in the upper shoulder region. This evidence squarely contradicts Taylor’s testimony that he had suffered prior neck injuries from car accidents. The WCJ further found that these false statements regarding prior injuries were willful and made in an attempt to obtain benefits. We find no error in this conclusion.

In summary, this record contains overwhelming support for the WCJ’s finding that (1) false statements were made; (2) the statements were willful and (3) the statements were made for the purpose of obtaining workers’ compensation benefits. Accordingly, we find no error in the WCJ’s conclusion that Taylor forfeited his right to benefits under La. R.S. 23:1208(E) and that Defendants are entitled to restitution as allowed under La. R.S. 23:1208(C)(4). Assignments of error numbers 6 and 7 are without merit.

Involuntary Dismissal, Proffer, Motion for New Trial and Successor Judge

We now address the timing and procedural component of the WCJ’s decision in this case. As previously stated, the WCJ granted Defendants’ motion for involuntary dismissal at the close of Taylor’s testimony. In assignments of error numbers 1 and 4, Taylor argues that it was improper for the WCJ to grant the motion for involuntary dismissal because he had not completed presentation of his case; and, further, after granting the 1 ^dismissal, he asserts that it was error for the WCJ to refuse to allow him to proffer the deposition testimony of an additional witness. In assignment of error number 2, Taylor challenges the denial of his motion for new trial on the grounds that he was denied the opportunity to present all of his evidence. We find no merit in Taylor’s arguments.

An involuntary dismissal should not be reversed absent manifest error or unless clearly wrong. Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 00-0201 (La.3/24/00), 758 So.2d 151; Darton v. Kroger Co., 30,-771 (La.App.2d Cir.8/25/98), 716 So.2d 974; Keller v. Odin Management, Inc., 31,305, 30,682 (La.App.2d Cir.8/19/98), 716 So.2d 962, writ denied, 98-2434 (La.1/8/99), 734 So.2d 1228. A trial judge has much discretion in the granting of an involuntary dismissal. Locke v. Sheriff, Parish of Jefferson, 94-652, 94-653 (La.App. 5th Cir.12/28/94), 694 So.2d 257, writ denied, 95-0268 (La.3/24/95), 651 So.2d 293; Vernon Parish Police Jury v. Buckley, 00-00045 (La.App. 3d Cir.11/2/00), 776 So.2d 17.

La. C.C.P. art. 1672(B) provides, in pertinent part: .
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right for relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

While an involuntary dismissal is usually determined at the close of the plaintiffs case or at the conclusion of the trial, this court has recognized N that, where there is a finding that no additional evidence would alter the ruling, a dismissal may be proper. See Gould v. Gould, 28,996 (La.App.2d Cir.1/24/97), 687 So.2d 685.

In the case sub judice, the WCJ specifically stated that there was no other conceivable evidence that could be presented by Taylor to alter her finding that he violated La. R.S. 23:1208 in making willful fraudulent statements for the purpose of obtaining workers’ compensation benefits. As discussed above, the WCJ outlined three instances of specific misrepresentations by Taylor during his testimony at trial, depositions' and statements to Dr. Ramos regarding his work history ánd prior injuries. Taylor’s counsel argued to the WCJ that he intended to call an additional witness, Jason Gates, an employee of Rosbottom’s, who would corroborate Taylor’s testimony that he did not in fact “work” for the $1,000 monthly payments made by Rosbottom to him. The WCJ, however, properly responded that the question was not whether or not Taylor actually worked for the payments from Rosbottom, i.e. was employed by Rosbot-tom after February 2002, but the fact that he had acknowledged that he was performing employment type services in prior email correspondence with Rosbottom and others, but then testified to the contrary, stating at trial that he did not work for the payments from Rosbottom and that he was not employed after February 2002. This fraudulent statement at trial formed part of the basis for the WCJ’s conclusion and she properly determined that no further evidence from any witness could cure this fraud. We find no manifest error in the WCJ’s decision to dismiss Taylor’s suit at that | ^juncture. We agree with Defendants that the WCJ’s finding was in actuality a favorable ruling on their recon-ventional demands; and, as previously discussed, we find no manifest error in the WCJ’s finding of fraud under La. R.S. 23:1208.

Likewise, we find no reversible error in the WCJ’s decision to refuse Taylor’s proposed proffer of the deposition testimony of Mr. Gates. La. C.C.P. art. 1636 provides, in pertinent part:

A. When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.

If the record reveals the nature of the excluded evidence, the requirements of this article are satisfied. Gulf Outlet Marina, Inc. v. Spain, 02-1589 (La.App. 4th Cir.6/25/03), 854 So.2d 386, writ denied, 03-2075 (La.11/7/03), 857 So.2d 497. The record in this case contains the substance of Mr. Gates’ testimony and the WCJ concluded, and we agree, that such testimony would not have altered the result in this case. Taylor’s fraud was evident from his own testimony and nothing contained in Gate’s deposition could have affected this result. There was no abuse of discretion in the WCJ’s disallowing the proffer of Mr. Gates’ deposition.

For the above reasons, we conclude that assignments of error numbers 1 and 4 are without merit. For the same reasons, we find no merit in Taylor’s assignment of error number 2, wherein he argues that the WCJ should have granted his motion for new trial because he did not have the opportunity to present his entire case. Finally, we find no merit in Taylor’s 1 ^assignment of error number 5, which asserts that it was-error not to have a hearing on the issue of which judge should decide the motion for new trial. Judge Warren presided over the trial and entered judgment on the merits, both finding fraud and setting the amount of restitution. She signed the judgment denying the motion for new trial and denying Taylor’s subsequent request for oral argument on the motion for new trial. The record does not support Taylor’s argument that La. R.S. 13:4209 was violated in this case.

Amounts of Restitution and Exception of Vagueness Specialty

La. R.S. 23:1208(D) states that “[r]estitution may only be ordered for benefits claimed or payments obtained through fraud and only up to the time the employer became aware of the fraudulent conduct.” The November 2000 work-related automobile accident occurred while Specialty was Tommie’s workers’ compensation carrier and Taylor’s claim for benefits based on his injuries in that accident was not disputed by Specialty. Rather, Specialty paid both medical and indemnity benefits for that injury, totaling $40,432.14. These benefits paid by Specialty ceased when Taylor returned to work. The subject matter of Taylor’s current claim is the subsequent alleged work-related accident of September 14, 2001. By the time of this second accident, Specialty had already paid benefits for the |uNovember 2000 injury. There was no evidence presented that Taylor willfully made false statements or misrepresentations for the purpose of obtaining benefits for the November 2000 injury. Accordingly, there can be no restitution for the medical and indemnity benefits paid by Specialty for that injury. See Morton, supra.

The false statements and misrepresentations properly found by the WCJ to constitute fraud in this ease concern Taylor’s attempt to get benefits for the September 14, 2001 injury. Taylor named Specialty as a defendant, alleging that additional benefits were owed by Specialty because the September 14, 2001 injury was a re-aggravation of the November 2000 injury. There has been a proper determination that Taylor violated La. R.S. 23:1208 in making fraudulent statements for purposes of obtaining these additional benefits. Had Specialty paid any additional medical and/or indemnity benefits on the current claim, it would be entitled to restitution of the same; however, this record does not indicate that any such payments were made. This court has held, however, that the civil remedy of restitution for “benefits made or payments obtained” as provided in 23:1208(D) is defined as stated in the criminal provision, subsection (C)(4), of the statute, namely, “the cost or value of indemnity benefits, and the cost or value of health care, medical case management, vocational rehabilitation, transportation expenses, and reasonable costs of investigation and litigation.” (Emphasis added.) See Yarnell Ice Cream Co. v. Allen, 33,020 (La.App.2d Cir.5/10/00), 759 So.2d 1066, writ granted, 00-1520 (La.9/15/00), 767 So.2d 699, order recalled, 00-1520 (La.1/17/01), 777 So.2d 472. We find that Specialty was required to investigate and defend this claim as a re-aggravation injury claim; and, since Taylor violated 23:1208 in seeking these additional benefits from Specialty, Specialty is entitled to restitution of its reasonable costs of investigation and litigation in defending the claim. The plain language of the statute, however, limits this award of restitution to the date the employer first learned of the fraudulent conduct. La. R.S. 23:1208(D); Dukes v. Sherwood Acres Apartments, 01-2325 (La.App. 1st Cir.11/8/02), 835 So.2d 742; Hull v. Fluker Farms, 00-0757 (La.App. 1st Cir.5/11/01), 787 So.2d 535, writ denied, 01-2291 (La.11/16/01), 802 So.2d 612. The WCJ determined this to be Taylor’s September 17, 2002 deposition and we see no manifest error in that determination. The award of restitution to Specialty is, therefore, reversed, but the issue is remanded to the Office of Workers’ Compensation for determination of the amount of restitution due Specialty for reasonable investigation and litigation expenses incurred as a result of the September 14, 2001 injury claim through September 17, 2002.

With respect to the denial of Taylor’s exception of vagueness regarding Specialty’s reconventional demand, we find that any error in such ruling was harmless in that Taylor made false statements directly to the WCJ during his trial testimony and any prejudice suffered by Taylor by failure to specify past fraudulent.statements was surpassed by his flagrant misrepresenta-tiqns during the trial of this matter.

_JjfTommie’s and Bridgeñeld

Tommie’s and Bridgefield answered this appeal seeking an increase in their restitution award and, alternatively, a remand for determination of their claim against Specialty in the event the alleged September 14, 2001 injury is in fact found to be a re-aggravation of the November 2000 injury. We find no abuse of discretion in the WCJ’s award of $12,833.62 to Tommie’s and Bridgefield. The account summary submitted by Tommie’s and Bridgefield shows this amount for total expenses, including court costs and expenses (which includes investigation expenses), attorney fees and medical bills paid through September 17, 2002. As previously stated, the statute and jurisprudence dictate that the restitution is recoverable only through the date the employer became aware of the fraudulent conduct, which, in this case, was Taylor’s deposition of September 17, 2002. We will not disturb the WCJ’s award to Tommie’s and Bridgefield.

Finally, we agree with Tommie’s and Bridgefield that this matter should be remanded to the OWC for a ruling on their claim against Specialty. This claim requires a determination of whether the alleged September 14, 2001 injury was in fact a re-aggravation of the November 2000 injury, in which case Specialty would be liable for the injury and not Bridgefield.

DECREE

For the foregoing reasons, the judgment of the WCJ awarding U.S. Specialty Insurance Company restitution in the amount of $62,340.37 is reversed and the matter remanded to the WCJ for determination of the 117amount of restitution to which U.S. Specialty Insurance Company is entitled, i.e., the reasonable cost of investigation and litigation, incurred after the 1008 filing on the September 14, 2001 injury through September 17, 2002. The matter is also remanded for ruling on Tommie’s Novelty and Gaming’s and Bridgefield Casualty Insurance Company’s claim against U.S. Specialty Insurance Company. In all other respects, the judgment of the WCJ is affirmed. Costs of appeal are assessed against Gregory M. Taylor and U.S. Specialty Insurance Company equally.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

CARAWAY, J., concurs in part and dissents in part with written reasons.

B CARAWAY, J.,

concurring in part and dissenting in part.

While I concur with most conclusions reached by the majority, I must respectfully dissent regarding the issue of attorney fees.

Taylor appealed the restitution judgments awarded to both Specialty and Bridgefield pursuant to Section 1208(D) of the Workers’ Compensation Act. La. R.S. 23:1208(D). We have found that Specialty paid no benefits to Taylor for the September 2000 re-aggravation injury claim, that Specialty’s payments of $40,432 in benefits for Taylor’s prior work-related injury and surgery were not the subject of the false representations, and that no restitution is owed for those benefit payments. Nevertheless, since Specialty was required to defend the re-aggravation injury claim which was tainted by Taylor’s false representations, the majority rules that Specialty is entitled to attorney fees for that defense and remands for a determination of the amount of such fees under Section 1208(D).

Section 1208(D) is a penal statute. Although the Act is to be liberally construed in regard to benefits, penal statutes within the Act are to be strictly construed. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41, 46. Attorney fees are not recoverable by a litigant unless expressly authorized by statute or contract. Huddleston v. Bossier Bank and Trust Co., 475 So.2d 1082 (La.1985). Even in cases of fraud regarding a contract or for conversion, attorney fees have not been awarded. Lloyd v. Merit Loan Co. of Shreveport, 253 So.2d 117 (La.App. 2d Cir.1971), writ refused, 259 La. 1050, 254 So.2d 462 (1971); Simon v. Fasig-Tipton Co., 92-173 (La.App. 3d Cir.3/22/95), 652 So.2d 1351, writ denied, 95-1010 (La.6/2/95), 654 So.2d 1111.

From the plain wording of Subsection D of the statute, Specialty may receive “restitution” “only” “for benefits claimed or payments obtained” by Taylor. The majority’s reliance upon the special definition for the phrase “benefits claimed or payments obtained” in Subsection C of Section 1208 is misplaced. La. R.S. 23:1208(C)(4). Subsection C provides the criminal sanctions for a Section 1208 violation. It denominates three grades of fraud crimes, dependent on the value of “benefits claimed or payments obtained.” A precise definition for the phrase is needed to distinguish each grade of the crime. Yet, the definition only applies to the criminal part of the statute, as expressly indicated by the phrase, “for purposes of Subsection C of this Section.” Moreover, even the special definition of La. R.S. 23:1208(C)(4) does not list attorney fees which is a term distinguishable' from “litigation costs” or “investigation costs.” Last, the purpose of the civil restitution Subsection D clearly imposes a penalty upon the fraudulent employee which may serve to both deter the employee and award the employer. Yet, the additional award to the employer in Subsection D, over and above the amount of restitution for the “benefits claimed or payments obtained,” is given in the form of a penalty, which the OWC may assess up to $5,000, and not as an award for attorney fees.

Accordingly, I would not remand Specialty’s claim against Taylor for attorney fees but would reverse and dismiss its entire claim. Likewise, since [3the $12,833.62 restitution award to Bridgefield included $7,969.10 in attorney fees, I dissent to the affirmance of that entire award.

APPLICATION FOR REHEARING

Before STEWART, GASKINS, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.

GASKINS and CARAWAY, JJ., would grant rehearing.

      . Defendants have filed suit for damages against adverse parties arising out of this dispute and those actions are pending in district court.

      . Taylor testified that he has been involved in 16 separate lawsuits, including prior workers' compensation claims.

      . Apparently, there was an ongoing collection matter regarding Taylor's account with Dr. Ramos.

      . La. R.S. 13:4209 provides, in pertinent part:
      A. In all cases heard and taken under advisement of the district judge or judges of the city courts, if the judge before whom a case is tried dies, resigns, or is removed from office, or if his term expires before rendering his judgment in the case, his successor in office shall decide the case from the evidence in the record....

      . We note that the WCJ did find that, in his trial testimony, Taylor misrepresented his injury from the 1981 offshore accident. While this prior injury pre-dates the November 2000 accident, there is no evidence that Taylor made the same misrepresentation to Specialty when he sought benefits for the November 2000 injury.


author: | -/THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. John L. AINSWORTH.
    No. 04-CA-177.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Kenneth J. Beck, Julie C. Tizzard, Gret-na, LA, for Intervenor/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   | -/THOMAS F. DALEY, Judge.

Appellant, Diamond State Insurance Company, appeals the trial court’s denial of its Motion to Set Aside Judgment of Bond Forfeiture. We affirm.

The record shows that defendant, John L. Ainsworth, was arrested for simple burglary in Jefferson Parish on May 18, 2001. On the same day, Ainsworth obtained an appearance bond with Bail Bonds Unlimited in the amount of $10,000.00. The surety on the bond was Diamond State Insurance Company, the appellant. The bond gave an appearance date of July 2, 2001.

Ainsworth’s arraignment hearing was in fact set for and held on July 12, 2001. When Ainsworth did not appear in court, the Court ordered that an attachment be issued for him, and also ordered that the appearance bond be forfeited. This judgment was read and signed in open court on July 12, 2001. Notice was mailed to Diamond State Insurance Company and other pertinent parties, including Ainsworth, on July 20, 2001.

laOn October 1, 2001, Diamond State Insurance Company filed a Motion to Set Aside Judgment of Bond Forfeiture, arguing that the record contained no proof of actual service upon defendant of notice for the court date of July 12, 2001, as required by LSA-R.S. 15:85, and thus the bond forfeiture was a nullity. The motion also argued “any and all other reasons which may be shown at the trial on this matter.” The hearing was set for December 13, 2001, but was continued and reset for March 14, 2002.

The record reflects that at the hearing on March 14, 2002, the trial court denied the Motion to Set Aside Judgment of Bond Forfeiture, but gave no reasons. The following day, Diamond State Insurance Company filed its Notice of Appeal.

On appeal, Diamond State Insurance Company argues that the trial court erred in denying the Motion to Set Aside Judgment of Bond Forfeiture on two grounds. First, Diamond State Insurance Company argues that it presented evidence that defendant, Ainsworth, was in fact incarcerated in Hinds County, Mississippi, on- his appearance date of July 12, 2001, which is a grounds for non-forfeiture under LSA-R.S: 15:87(A)(2). Further, appellant argues that the record contains no evidence that Ainsworth was actually served with notice of his July 12, 2001 appearance date, as required by LSA-C.Cr.P. art. 344.

Concerning the first Assignment of Error, Diamond State Insurance Company argued at the hearing that Ainsworth was incarcerated in Hinds County jail on the date of his arraignment in Jefferson Parish (July 12, 2001), which is a cause for non-forfeiture of the bond. They presented a “Detention Letter” purporting to be from Hinds County, Mississippi, which stated Ainsworth had been incarcerated there since July 4, 2001. The State objected to this line of defense on the grounds that it was asserted untimely. The State argued that under LSA-R.S. 15:85(5), Diamond State Insurance Company had six months from the date the |4notice of bond forfeiture was mailed on July 20, 2001, to file a Motion to Set Aside the Bond Forfeiture and/or amend the motion to assert valid grounds in support of its position, and while Diamond State Insurance Company’s motion was filed within six months, it failed to raise this particular defense, the motion was never amended to include it, and the defense was not raised until the morning of the hearing, March 14, 2002, some eight months following July 20, 2001. LSA-R.S. 15:85(5) states:

(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.'

The defense asserted in Diamond State Insurance Company’s motion, lack of proper service upon the defendant of the appearance date under C.Cr.P. art. 344, was not raised until October 1, 2001, the date the motion was filed, which was more than 60 days after the mailing of the notice of bond forfeiture on July 20, 2001. Though no party raises this issue, it appears that the motion on these grounds was untimely. Only those defenses based upon C.Cr.P. art. 345 and R.S. 15:87 may be raised, in summary proceedings, as late as the six month time period found in the last sentence of R.S. 15:85(5). Other defenses, such as this one, must be raised within sixty days of the mailing of the notice of bond forfeiture. This motion, which is by summary proceeding, was filed on October 1, 2001, more than sixty days after the mailing of the notice of bond forfeiture on July 20, 2001.

|fiThe defense of incarceration is found in R.S. 15:87. It is undisputed that these grounds were not raised in Diamond State Insurance Company’s motion, nor was the motion amended at any time to assert such grounds. The first notice and evidence of this defense came at the hearing on March 14, 2002, well after the six month period had elapsed.

Further, on the merits, though the State did not object to the “Detention Letter” introduced by Diamond State Insurance Company, this letter appears to be inadequate proof -of the defendant’s incarceration under R.S. 15:87(B), which states:

B. A sworn affidavit of the jailer, warden, physician, commanding officer, or other responsible officer where the principal is detained, who attests to the cause of the defendant’s failure to appear shall be considered adequate proof of the defendant/principal’s inability to appear.

The “Detention Letter” is unsigned, has no seal, and is not accompanied by a sworn affidavit, nor was its authenticity verified by competent testimony. It does not comply with R.S. 15:87(B).

This case is clearly distinguishable from State v. West, 384 So.2d 784 (La.1980), wherein the Motion to Set Aside was filed timely, based upon the defense of incarceration in R.S. 15:87, but proof was not presented to the court until two days after this six months had elapsed. The court found that the timely filed motion clearly alleged the grounds of incarceration as a defense and counsel had vigorously urged this motion early in the proceedings. Further, the evidence of incarceration was a sworn affidavit from the United States Marshal. In this case, though the Motion to Set Aside was filed within six months of the mailing of the notice of forfeiture, it did not raise the R.S. 15:87 defense of incarceration.

Accordingly, we find that Diamond State Insurance Company’s Motion to Set Aside was filed untimely, based upon the defenses asserted in the motion, as not being filed within the time delays allowed in R.S. 15:85 in the use of summary | (¡proceedings, sixty days of the notice of mailing of bond forfeiture, and additionally introduction of evidence of incarceration was untimely because it was not asserted until well after the six month time period in which to assert that defense had elapsed, nor was the evidence authenticated.

Diamond State Insurance Company argues that the trial court erred in denying its motion because the State failed to properly serve Ainsworth with the notice of his appearance date, as per C.Cr.P. art. 344. As previously noted, their motion was untimely on that ground as well. On the merits, their argument also fails.

The pertinent part of LSA-C.Cr.P. art. 344 states:

B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, shall be given written notice of the time, date, and place the principal is required to appear.
(2) The notice may be delivered to the defendant and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.

LSA-C.Cr.P. art. 322 states:

Art. 322. Declaration of residence by defendant and surety; waiver of notice
A. The defendant when signing a bail bond shall write under his signature the address at which he resides. The address shall be conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.
B. A personal surety signing a bail bond shall write under his signature the address at which he resides. The address shall be ^conclusively presumed to continue for all proceedings on the bond, until he files in the proceeding in which the bond was given a written declaration changing the address.
C. A commercial surety shall inscribe on the face of the power of attorney used to execute the bond its proper mailing address. This address shall be conclusively presumed to continue for all the proceedings on the bond, until a written declaration changing the address is filed in the proceeding in which the bond was given.
D. The agent or bondsman posting the bond shall write under his signature his proper mailing address. This address shall be conclusively presumed to continue for all the proceedings on the bond, until a written declaration changing the address is filed in the proceeding in which the bond was given.
E. By signing the bail bond, the defendant and his surety waive any right to notice, except the notice provided for in Article 344 and R.S. 15:85.

Regarding service, the State argues that they presented evidence that Ainsworth provided a false address on the appearance bond on May 18, 2001. They submitted evidence that Ainsworth moved from this address in March prior to time in May when he used this address on his appearance bond. This evidence, a return of service on a subpoena, does not appear in the record, but counsel for the State recited it into the record:

The State is opposing Mr. Beck’s motion on both grounds.
No. 1, on the service issue, there is a subpoena return in the record which shows — well, the subpoena shows that the Jackson County, Mississippi, Sheriffs Office attempted to serve the defendant at the address on the bond, which was 227 Western Hills, and noted on the return, “Moved in March,” and that, “A Michael Anderson now lives here.” And it’s signed by the deputy.
So the State did try to serve the defendant at the address that he gave us. And because he wasn’t there, we should not be penalized for that.

In its brief, the State reprints the return more fully:

STATE OF MISSISSIPPI
COUNTY OF HINDS
John Ainsworth
NOT FOUND IN HINDS COUNTY, After
Diligent search and inquiry.
This 20th day of June, 2001.
M.E. McMillin, Sheriff
J^By R.C. Alford, D.S.
Moved in March
Michael Anderson now lives here
R.C. Alford

Diamond State Insurance Company did not object to this evidence.

The State argues in brief that this is evidence that Ainsworth furnished a false address on his appearance bond in May of 2001, contrary to the requirements of LSA-C.Cr.P. art. 322. In response to Diamond State Insurance Company’s argument that the State should have served Ainsworth by U.S. Mail so that he would have had the opportunity to receive the notice via the mail at any forwarding address, the State points to the notice of bond forfeiture mailed via certified mail; the bond forfeiture notice, which was mailed on July 20, 2001, was returned “Moved, no forwarding address” as proof that any attempt of service via the U.S. Mail would have been futile. We find that the State complied with the notice requirements of C.Cr.P. art. 344.

For the foregoing reasons, we find that the trial court’s judgment denying the Motion to Set Aside Judgment of Bond Forfeiture was not error. Accordingly, we affirm.

AFFIRMED.

      . He was charged by Bill of Information with simple burglary on June 5, 2001.

      . The ruling is evidenced by the transcript of the hearing, where the trial judge ruled in open court, and in a minute entry. No separate written judgment appears in the record.