author: | ¡.MARION F. EDWARDS, Judge.

text:
    Gwendolyn ROBINSON, et al. v. Louis R. FRANKLIN and Allstate Insurance Company.
    No. 03-CA-236.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 19, 2003.
    Gerald J. Leydecker, Rene D. Lovelace, New Orleans, LA, for Appellants.
    Coleman T. Organ, New Orleans, LA, for Appellees.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   | ¡.MARION F. EDWARDS, Judge.

This is an appeal from a judgment dismissing claims for damages against in this automobile accident suit. For the following reasons, we reverse in part and affirm in part.

On December 20, 2000, plaintiff, Gwendolyn Robinson, and her daughters Shami-ca, Raion, and Jasmine were parked in the lot of a Kenner, Louisiana gas station. A vehicle driven by defendant, Louis Frank-Iin, backed out of a parking space in front of the convenience store at the gas station and bumped Robinson’s vehicle on the rear driver’s side above the wheel well.

On May 14, 2001, Gwendolyn, Shamica, Raion, and Jasmine Robinson (“the Robin-sons”), filed suit in First Parish Court for the Parish of Jefferson against Franklin and his insurer, Allstate Insurance company, | aalleging that they had sustained property damages and injuries as a result of the impact.

A judge trial was held on July 9, 2002. On August 9, 2002, the trial court rendered judgment in favor of defendants and dismissed the Robinsons’ case. This timely appeal followed.

LAW AND ANALYSIS

In their first assignment of error, the Robinsons assert that the trial court erred in not awarding property damages and rental expenses to Gwendolyn Robinson. In the second assignment of error, they assert that the trial court erred in failing to award damages for their bodily injuries, medical expenses and lost wages.

In regard to the first assignment of error, we note that Franklin and Allstate stipulated to liability for the accident, and do not contest on appeal the issues of the car rental expenses and the cost of car repairs related to the accident. Accordingly, we find that the trial court erred in failing to award rental expenses of $56.52 and $295.80, representing the estimate from Allstate on the property damage to Robinson’s vehicle after the accident.

In their second assignment of error, the Robinsons assert that the trial court erred in failing to award damages for their bodily injuries, medical expenses and lost wages.

When an appellate court reviews the factual findings of the trial court, it is limited to a review for manifest error. The court may only modify or set aside a factual finding of the jury when it is clearly wrong. This is resolved by determining whether the finding was reasonable in light of the record reviewed in its entirety.

|4In its reasons for judgment, the trial court in this case stated that it based its finding on two major elements: 1) “Both plaintiffs who testified were not convincing that the ‘impact’ which amounted to a ding in one vehicle’s wheel cover would cause bodily injury to four healthy individuals,” and; 2) “The medical records submitted reflected no real objective findings.”

The Robinsons first assert that the trial court erred in failing to sustain a presumption of causation, discussed by the Louisiana Supreme Court in Maranto v. Goodyear Tire and Rubber Company:

Plaintiff is aided in her burden of proving causation by the presumption described in Housley v. Cerise, 579 So.2d 973 (La.1991) wherein this court stated that:
[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

Defendants, however, cite this Court’s opinion in Kelly v. Lugo, where we noted in regard to this same presumption:

Applicability of the above rule is only appropriate when it has been established that plaintiff was healthy before the accident, was unhealthy afterwards, and there is a reasonable possibility of a causal connection between the accident and the injury.

In Kelly, the trial court found that the second element of a causal connection did not exist, and that the plaintiffs had no post accident injuries at all, in spite of the fact that the plaintiffs had all been treated by doctors for injures that were allegedly caused by the accident. We noted in that case that the trial court’s finding was a factual one subject to the manifest error standard.

| BIn the present case, the trial court was presented with the following evidence in regard to each of the Robinsons.

Gwendolyn Robinson testified at trial that she was the driver of the vehicle at the time of impact and gave two accounts of what occurred at the time that her car was struck. On direct examination, Robinson testified that the impact to her car was severe, and led her to believe that someone had landed on the roof of the car. On cross examination, however, Robinson testified that she did not know at the time of the accident that she had been hit, or what side had been hit, because she had been conversing with her daughters. After the accident, Robinson brought her daughter Shamica to work and then proceeded with her daughter Raion to Kenner regional Hospital.

In regard to her claimed injuries, Gwendolyn Robinson testified that on her initial hospital visit on the date of the accident, she was provided ibuprofen for the pain. Robinson later went to Dr. Altman, who recommended a back brace. Robinson testified that she went to therapy until February and stopped because she felt better, and that Dr. Altman prescribed medicines that helped her. Robinson stated that she had a prior accident in which she injured her back and neck, but that she suffered no residual pain from it. Robinson treated with Dr. Altman from December 22, 2000 through May 9, 2001 and testified that she continued to have the same amount of pain throughout. On March 26, 2001, Robinson fell down at home, but claimed that the fall did not exacerbate her injuries from the accident at issue.

Robinson’s medical records were introduced into evidence. Her Kenner Regional records from December 20, 2000 indicate “cervical muscle tenderness,” but that she was released in “good condition.” A March 2, |fi2001 report from Dr. Altman indicated a medical history “significant for a history of back pain.” Dr. Altman opined that all symptoms and findings “are causally related to the accident.” In her visits with Dr. Altman from January 15, 2001 through May 10, 2001, Robinson’s discomfort continued and included neck pain, low back pain, headaches, and “pins and needles” that radiated to her left arm. The medical reports indicate that on May 9, 2001, Dr. Altman recommended to Robinson that she see an orthopedic surgeon, after she indicated to him that turning with her legs was painful. Robinson advised Dr. Altman on May 10, 2001 that she would not be returning for further evaluation or treatment.

In its Reasons for Judgment, the trial court stated that when Gwendolyn Robinson testified that she twisted to the direction of the other vehicle and re-enacted the motion in court, she twisted to the right, but that the vehicle driven by defendant had bumped the left rear wheel cover.

Shamica Robinson testified at trial. She stated that at the time of the accident, she was employed by Chiek-Fil-A in Kenner, working approximately 40 hours a week. She had her seat belt on at time of accident, but did not see Franklin’s car before impact. Shamica stated that she felt pain when she twisted her body to look at the accident, but went to work immediately after the accident. She said that, upon a referral from her attorney, she started treating with Dr. Altman, who recommended that she stay off of work for a couple of weeks. Shamica initially complained of low back pain and chest pain, although she also testified that she did not hit her chest while in the car.

Shamica’s medical records indicate that Dr. Altman first saw her on December 22, 2000, when he recorded a diagnostic impression of lumber strain and trauma to the chest that, in his opinion, were causally related to |7the accident. At that time Dr. Altman ordered a back brace for Shamica and ordered her to remain off of work until the next visit. Shamica reportedly continued to have low back pain and spasms until April 18, 2001 when she told Altman that she had no further complaints.

In its Reasons For Judgment, the trial court noted in regard to Shamica Robinson’s testimony, “She claimed that she stayed off work for a few weeks, yet on cross examination she admitted that her place of employment coincidentally closed for renovations at that time.

Jasmine Robinson did not testify at trial but, according to Gwendolyn Robinson, Jasmine had been wearing a seatbelt at the time of the accident. Jasmine’s medical records were entered into evidence and showed that she was seen by Dr. Altman on December 22, 2000. In her initial visit, Dr. Altman noted lumbar strain and concluded that all symptoms and findings were causally related to the accident. Dr. Altman’s records further indicate that on January 15, 2001, Jasmine told him that her lower back felt better.

Raion Robinson did not testify at trial, but Gwendolyn Robinson testified that Raion had been wearing her seat belt at the time of the accident. Raion’s medical records were further entered into evidence. The Kenner Regional Medical report from December 20, 2000 indicates that Raion complained of muscle tenderness of the upper lumbar area, but that she was discharged in good condition. She went on to treat with Dr. Altman. In Dr. Altman’s initial report, he indicated that Raion came to him complaining of pain in her back left side and left hip, which was diagnosed by him as left chest wall muscle strain. Raion continued to see Dr. Altman with reported progress until March 5, 2001, when no further appointments were made on her behalf.

| sAlthough there was testimony by the Robinsons regarding the force of the impact and alleged subsequent injury, the trial court indicated that it did not find their testimony to be credible. In regard to a trial court’s finding of witness credibility, this court noted in Kaiser v. Western-Southern Ins. Co. :

[The trial judge] was in the best position to determine the credibility of the Plaintiff and his determination demands great deference, “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 v. ESCO, 549 So.2d 840, 844 (La.1989) (citations omitted); Gray v. Prince Dump Truck Service, 00-1925 (La.App. 5th Cir.4/25/01); 785 So.2d 1018, 1021.

Credibility determinations are subject to the strictest deference and the manifest error-clearly wrong standard demands great deference for the trier of fact’s findings. Accordingly, after a review of the record, we affirm the trial court’s judgment related to damages to the Robinsons for injuries, medical expenses, and lost wages, finding no manifest error.

The Robinsons further argue that the trial court erred in considering the minimal force of the collision in determining that they were not injured in the accident. As Franklin and Allstate point out, however, this court has affirmed verdicts in favor of a defendant in similar cases. In Breen v. Soileau, the plaintiffs introduced evidence that they had undergone treatment for nearly a year by a chiropractor, and that additionally, two of the plaintiffs had undergone treatment by orthopedic surgeons as well. After trial, however, the jury found in favor of the defendant. In affirming the jury’s verdict, this Court noted:

In this case, the jury rejected plaintiffs demand for damages, finding that they failed to prove that their injuries were caused by the accident. The medical testimony was uncontroverted, but it was based on the history given by Mr. & Mrs. Breen. Apparently, the jury did not believe that severe ^injuries could have occurred from such a minor collision. This is a factual finding, which this court may not modify in the absence of manifest error. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In this case, the Robinsons introduced a photograph at trial that showed the extent of the damage to their car, which amounted to a scratch above the driver’s side rear wheel well. Based on this evidence, as in Breen and Kelly, supra, we see no manifest error in the trial court’s finding that the accident could not have caused the injuries complained of, in spite of the un-controverted medical evidence presented at trial.

For the foregoing reasons, we reverse the trial court’s judgment and award the Robinsons $352.32, for car rental and car repair expenses. In all other respects the trial court’s judgment is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . Stobart v. State Through DOTD, 617 So.2d 880 (La.1993).

      . Stobart at 882.

      . Id.

      . 94-2603 (La.2/20/95), 650 So.2d 757.

      . 01-542 (La.App. 5 Cir. 11/27/01), 802 So.2d 952.

      . 01-1393 (La.App. 5 Cir. 5/15/02), 821 So.2d 52.

      . Lirette v. State Farm Insurance Company, 563 So.2d 850, 852 (La.1990).

      . 609 So.2d 864, (La.App. 5 Cir.1992).


source: Caselaw Access Project

author: |,WILLIAM H. BYRNES, III, Chief Judge.

license: Public Domain

text:
    Russell JOHNSON v. Donnie M. BROWN et al.
    No. 2003-C-0679.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.

      Constance C. Hobson, Borrello, Olinde & Dubuclet, Metairie, LA, for the Defendants/Relators.
    Ammon L. Miller, Jr., Law Offices of Ammon L. Miller, Jr., New Orleans, LA, for Plaintiff/Respondent.
    (Court composed of Chief Judge WILLIAM H. BYRNES, III, Judge PATRICIA RIVET MURRAY, and Judge DAVID S. GORBATY).
   |,WILLIAM H. BYRNES, III, Chief Judge.

The defendants, Donnie M. Brown, Yvette B. Brown, and Liberty Mutual Insurance Company (“Liberty Mutual”), request a review of the city court’s denial of their exception of citation and/or insufficiency of service of process, as well as an exception of prescription. We reverse in part.

Procedural History

The plaintiff, Russell Johnson, instituted the present suit seeking recovery of damages for injuries allegedly sustained in a vehicular collision that occurred on May 26, 2001. The plaintiff filed suit on May 24, 2002, naming as defendants Donnie Brown, the driver of the other vehicle, Yvette Brown, the owner of the other vehicle, and Liberty Mutual Insurance Company, the Browns’ insurer. The plaintiff noted on the petition that service and citation was to be held until further notice. The plaintiff requested service and citation on the defendants on December 6, 2002. The Browns were served with the petition and citation on January 5, 2003. Liberty Mutual Insurance Company was served with the petition and citation on January 8, 2003.

On February 5, 2003, the defendants filed exceptions of insufficiency of citation and/or insufficiency of service of process and prescription. The defendants argued that since they were not served within ninety days of the filing |2of the suit, plaintiffs suit should be dismissed. After a hearing on March 13, 2003, the trial court rendered a written judgment on March 18, 2003, denying defendants’ exceptions. The defendants timely filed a writ application.

Exception of Insufficiency of Citation and/or Insufficiency of Service of Process

The defendants contend that plaintiffs suit should be dismissed under La. C.C.P. article 1672 C. The article provides, in pertinent part:

Art. 1672 Involuntary dismissal

C. A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C), upon contradictory motion of that person or any party or upon the court’s own motion, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specific time. [Emphasis added.]
La. C.C.P. article 1201 C states in pertinent part:

Art. 1201. Citation; waiver; delay for service

Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver. [Emphasis added.]

The manifest error standard of review applies to the trial court’s dismissal of a suit for failure of the plaintiff to request timely service under the above articles. Futrell v. Cook, 2000-2531 (La.App. 4 Cir. 12/19/01), 805 So.2d 325.

In the present case, the plaintiff failed to seek service of the petition and citation on the defendants within the ninety-day period. The plaintiff claims that he held service pursuant to a request from defendants’ adjuster to hold service while she investigated the claim. The plaintiff maintains that the suit should not be dismissed because, while he did not serve defendants within the ninety-day |aperiod, he did mail a clocked copy of the petition to the defendants’ adjuster. In effect, the plaintiff is equating an oral waiver with “good cause.”

Defendants argue that the only correspondence sent to the plaintiff from the adjuster acknowledged a request for damages but made no written mention of the holding or waiving of service. The defendants submit that the plaintiff failed to show “good cause” why the plaintiff did not request service within the requisite ninety-day time period.

In Cantrelle v. Block, 2000-0540 (La. App. 1 Cir. 5/11/01), 808 So.2d 593, in a legal malpractice action, in attempting to convenience and accommodate the defendant, plaintiffs’ counsel discussed the decision to withhold service extensively with the defendant and his counsel, who were in agreement with -the decision. The First Circuit held that the professional manner and courtesies extended by the plaintiffs’ counsel to the defendant constituted “good cause” to prevent dismissal of the legal malpractice action.

In Futrell v. Cook, supra, this Court found that the defendants did not waive service within the ninety-day period following the beginning of the action, during which the plaintiffs/relatives of a patient were required to serve the defendants, the treating physician and his insurer, with a medical malpractice claim. In a written letter to the plaintiffs, the defendants agreed to waive service on the condition that they received a filed copy of the petition from the plaintiffs; however, the plaintiffs never sent the filed copy, and this Court found no waiver and no “good cause” to prevent the plaintiffs’ timely request for service on the defendants. This Court distinguished Cantrelle v. Block and stated:

The instant case is clearly distinguishable from Cantrelle v. Block, 2000-0540 (La.App. 1 Cir. 5/11/01), 808 So.2d 593, a case cited by the plaintiffs which involved extensive discussions between |4counsel and the parties regarding service and the extension of professional courtesies by the plaintiffs’ counsel to the defendant, an attorney.

Id., 805 So.2d at 328.

Fwtrell and the present case do not involve the extension of professional courtesies to an attorney regarding service that were extended to the defendant who was an attorney in a legal malpractice claim in Cantrelle v. Block. Although the holding in Cantrelle appeals to this Court’s sense of professionalism and fair play, it is difficult to reconcile it with the explicit requirement that waivers of service under La. C.C.P. art. 1201 must be in writing.

La. C.C. art. 13 states that: “Laws on the same subject matter must be interpreted in reference to each other.” If an oral waiver could constitute “good cause” under La. C.C.P. art. 1762, it would contravene the La. C.C.P. art. 1201 requirement that the waiver must be in writing. This would be contrary to the rules of statutory construction. It is clear that under La. C.C.P. art. 1201, an oral waiver is insufficient.

Louisiana jurisprudence reflects that “good cause” relates to whether there was some impediment that prevented the plaintiff from requesting timely service on the defendant.

In Anderson v. Norfolk Southern R. Co., 2002-0230 (La.App. 4 Cir. 3/27/02), 814 So.2d 659, writ denied 2002-1396 (La.9/20/02), 825 So.2d 1169, this Court noted that under the long-arm statute, where the defendant is a non-resident, the citation and petition is issued to the plaintiff. It is the plaintiffs responsibility to mail, by certified or registered mail, the citation and petition to the defendant. Plaintiffs counsel averred that despite his request for issuance of the long-arm citation in May 2001, the clerk’s office failed to forward the 1 ^citation to him. The plaintiff claimed counsel did not discover that the clerk’s office did not issue the citation until three days after the 90-day period. This Court reversed the trial court’s denial of the motion to dismiss that was based on the finding it was not through the fault of the plaintiffs that the clerk’s office did not timely produce the long-arm statute citations. This Court found that the plaintiff could not explain why he could not have ascertained the status of the citation until after the statutory period had run. This Court concluded that the request for service three days after the ninety-day period had expired strongly suggested that plaintiffs counsel either miscalculated or “mis-calendared” the deadline, and such inadvertence did not constitute “good cause.”

In Vicedomini v. Pelts & Skins, 2001-2268 (La.App. 1 Cir. 2/15/02), 808 So.2d 867, writ denied 2002-0813 (La.5/24/02), 816 So.2d 850, the plaintiffs failed to show “good cause” for not timely requesting service of citation and petition on the defendants in a tort action. Filing an answer and discovery interrogatories with a request for production did not constitute an express waiver of the service requirements. The First Circuit stated: “the legislature has provided that implied written waivers are not sufficient and express or implied oral waivers are not sufficient; the waiver must be express and written. ” The defendants specifically preserved the right too object to the insufficiency of service of process by stating in their answer that the plaintiffs petition had not been served on the defendants. The First Circuit found that there was no evidence of any impediment that would have prevented the plaintiffs from timely requesting service.

Un Bolner v. Daimler Chrysler Corp., 2001-1285 (La.App. 5 Cir. 6/26/02), 820 So.2d 1252, writ denied, 2002-2263 (La.11/15/02), 829 So.2d 480, the Fifth Circuit held that the automobile purchaser’s amended petition against the seller was ineffective for failure of the purchaser to request service within ninety days of filing the amended petition. Although the plaintiffs counsel did not request service, according to the certificate of service, counsel sent a copy by certified mail to the defendants. Where there was no service of the amending petition, the trial court entered a judgment of involuntary dismissal. The Fifth Circuit held that the defendant/seller’s actions in answering and participating in the litigation did not constitute a waiver of the declinatory exception of the insufficiency of the service of process. The defendant only filed an answer to the original petition, not the amended petition. The seller’s participation was based only on the original petition’s allegations. The amended petition was subject to involuntary dismissal. The Fifth Circuit affirmed the trial court’s dismissal of the case.

In Rollins v. City of Zachary, 2000-0160 (La.App. 1 Cir. 2/16/01), 808 So.2d 439, in May 1999, the plaintiffs filed a petition for damages in a personal injury action where a pedestrian was hit by a vehicle on the highway. In an affidavit, the plaintiffs’ attorney claimed that he mailed a letter dated July 29, 1999, to the Clerk of Court, requesting service upon all of the defendants. The plaintiffs claimed that the insurance company’s request for an extension of time led the plaintiffs to believe that the plaintiffs’ request for service on the defendants had been received by the Clerk of Court. The First Circuit held that the insurance company’s request for an extension of time did not constitute “good |7cause” as the plaintiffs could have sent the request of service by certified mail, hand-delivered the request, or placed a telephone call to verify that the Clerk of Court’s office had received the service request. It was incumbent on the party sending a request by ordinary mail to ensure or verify that the Clerk of Court received the request. The First Circuit affirmed the trial court’s judgment that granted the defendants’ motion to dismiss without prejudice.

In Rivers v. Groth Corp., 95-2509 (La. App. 1 Cir. 9/27/96), 680 So.2d 762, the First Circuit rejected the Officer of Worker’s Compensation Administration’s claim that citation and service had been waived at the end of the mediation conference where the claim was unsupported by written evidence in the form of a written waiver by the defendants or an affidavit or sworn testimony of the mediator. This could be construed to indicate that an affidavit or sworn testimony might suffice. However, in Rollins v. City of Zachary, supra, the plaintiffs counsel’s affidavit that he mailed a request for service to the Clerk’s office was not adequate to establish “good cause.”

In the present case, although the plaintiff asserts that the defendants orally had asked the plaintiff to hold request of service, the plaintiff was still bound to the requirements of La. C.C.P. arts. 1672 and 1201 to file the request of service within the ninety-day time period without a written waiver. The plaintiff showed no impairment that would keep him from sending his timely request for service. The defendant’s oral waiver is not equivalent to “good cause,” where La. C.C.P. art. 1201 requires that the defendant’s waiver of the plaintiffs request for service should be written to prevent involuntary dismissal.

. In Norbert v. Loucks, 2001-1229 (La.6/29/01), 791 So.2d 1283, the Louisiana Supreme Court held that the mere unawareness, by the personal injury 1 splaintiff s prior counsel, of the location of one purported owner, manager, or operator of the building at which plaintiff allegedly slipped and fell was not “good cause” that prevented dismissal of the action without prejudice, based on failure to timely request service of the citation on all the named defendants. The plaintiff did not contend that the address of the defendant could not be ascertained nor that the defendant willfully made efforts to conceal her location, and the plaintiffs new counsel was able to locate the defendant and request service within two months of being retained as counsel.

A personal injury action prescribes if not filed in one year unless the plaintiff shows a valid reason for the delay such as a proper claim of contra non va-lentem. The plaintiff can negotiate with an attorney for a personal injury case but must file suit within one year. Just as the plaintiff must adhere to the strict requirements of prescription, the plaintiff must adhere to the strict requirements of the time period for the plaintiffs request of service on the defendants. Without the defendants’ written waiver of service, the present case provides no showing of an impediment, constituting “good cause” (such as the example of the defendant’s concealment of her location as described in Norbert v. Loucks, id.,) that would have prevented the plaintiffs from timely requesting service.

In Naquin v. Titan Indem.Co., 2000-1585 (La.2/21/01), 779 So.2d 704, in an automobile collision personal injury action against government defendants, La. R.S. 13:5107(D) applied. That statute provides for a ninety-day limitation for the plaintiff to request service on government defendants. La. R.S. 13:5107(D) as amended by Act 518 contained language allowing the provisions to be expressly waived by written waiver. Although the Louisiana Supreme Court found that the amended statute did not apply to that suit, the Supreme Court stated that “La. RC.C.P. art. 1201, governing service of citation generally, provided that ‘[t]he defendant may expressly waive citation and service thereof by any written waiver made part of the record.’ ” Id., 779 So.2d at 709.

In Naquin, the Louisiana Supreme Court held that: “... it is well accepted that even a defendant’s actual knowledge of a legal action cannot supply the want of citation because proper citation is the foundation of all actions.” [Emphasis added.] Id., 779 So.2d at 710. While letters from the two insurance adjusters acknowledged receipt of the petition, the Supreme Court noted that:

... [N]either letter expressly states that either [defendant] waived service of the petition and citation. Thus, neither defendant “expressly waive[d] citation and service thereof.” La.Code Civ. P. art. 1201. This argument also lacks merit. Id.
The Louisiana Supreme Court stated:
Plaintiff next argues that defendants should be estopped from asserting his failure to comply with the requirements of La. R.S. 13:5197 because they had received the petition and negotiated with him toward a possible settlement. However, the fact that defendants have knowledge of the pending suit does not satisfy plaintiffs obligation to request service within ninety days of the filing of a suit against a governmental defendant. Moreover, the provisions of Act 63 did not place an unreasonable burden on plaintiff and it is not reasonable to believe, in light of the mandatory language contained in the Act, that ongoing settlement negotiations absolve a litigant of his responsibility to comply with its requirements. [Emphasis added.]

Id.

In the present case, on August 28, 2002, the insurance adjuster sent to the plaintiff a reply letter, stating the following:

This is to acknowledge receipt of your demand letter dated May 28, 2002. I will need to obtain a recorded statement and a medical authorization form in order to complete my investigation of the claim. Please contact me to schedule a convenient date/time.

|inThe defendant’s August 28, 2002 letter (in response to the plaintiffs transmittal that attached a copy of the petition) does not contain language that would constitute a written waiver of service required under La. C.C.P. art. 1201. Nor is there anything in the language of the letter that established “good cause” for withholding service.

As a matter of policy, to avoid any question as to the mandated requirements of La. C.C.P. arts. 1201 and 1672, a strict adherence to the necessary requirements is essential. Otherwise, a less strict interpretation would create confusion from various interpretations by the parties. Varied interpretations would result in “splitting hairs,” and it would be unclear to the litigants when service of process could be waived. It is just such confusion, as well as the disputes arising out of such confusion, that the La. C.C.P. art. 1201 written waiver requirement was intended to eliminate. The cases discussed in this opinion demonstrate the confusion that would arise if the legislature did not mandate that the waiver must be expressly written.

Proper citation is the cornerstone of all actions and actual knowledge cannot supplant the need for strict compliance with the requisites of proper citation. Rivers v. Groth Corp., supra, 680 So.2d at 763. The necessity for the plaintiffs timely request of service is fundamental and warrants strict compliance just as the fundamental requirements for filing an action timely must be strictly followed.

In the present case, the plaintiffs claim that he held off service of process as requested by the Liberty Mutual adjuster does not establish “good cause” showing why service could not be requested under La. C.C.P. art. 1672. In light of Naquin, negotiations with the insurance adjuster did not constitute “good cause” Inand did not absolve the plaintiff of his responsibility to request service of process within ninety days of filing the lawsuit.

In the present case, the trial court’s ruling that denied the defendants’ exception of insufficiency of citation and/or service of process was manifestly or clearly erroneous.

Prescription

The defendants also argue that since the plaintiff failed to serve the defendants with the petition and citation within the ninety-day period, prescription was not interrupted when the suit was filed and therefore, plaintiffs claims against the defendants have prescribed.

La. R.S. 9:5801 provides:

Notwithstanding the provisions of Civil Code article 2324(C), interruption is considered never to have occurred as to a person named as a defendant who is dismissed from a suit because service of citation was not timely requested and the court finds that the failure to timely request service of citation was due to bad faith. Nonetheless, as to any other defendants or obligors, as interruption of prescription, as provided in Civil Code article 3463, shall continue. [Emphasis added.]

In Futrell v. Cook, supra, this Court held that “good cause” in La. C.C.P. article 1672(C) does not equate with the “bad faith” of La. R.S. 9:5801. This Court stated that the statute (La. R.S. 9:5801) requires the trial court to make a factual finding of bad faith. Futrell, p. 6, 805 So.2d at 329. In the present case, the defendants have produced no evidence suggesting that the plaintiffs failure to timely request service was due to bad faith. Thus, the trial court did not err when it denied the defendants’ exception of prescription.

Accordingly, the trial court’s judgment denying the exception of insufficiency of citation and/or insufficiency of service of process is reversed. | ia The defendants’ exception is maintained and the plaintiffs action is dismissed without prejudice. The trial court’s judgment denying the defendants’ exception of prescription is affirmed.

WRIT GRANTED; REVERSED IN PART.

      . In the appellate opinion, the dissent maintained that the defendants had submitted to the personal jurisdiction of the court and, therefore, had waived their right to raise an objection to the insufficiency of service.

      . The dissent asserted that the fact that the defendants engaged in discovery for a one- and one-half year period, constituted appearances and participation based on the allegations of both the original and amended petitions. By these actions the defendants waived their right to object on the basis of lack of service of process.


author: JOAN BERNARD ARMSTRONG, Judge.

text:
    NEW ORLEANS REDEVELOPMENT AUTHORITY v. Dianna PETTINICCHI, Laura Standefer, Wife of/and John R. Riera and Better Builder, L.L.C.
    No. 2002-CA-2004.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.

      Rader Jackson, Jackson & McPherson, L.L.C., New Orleans, LA, for Plaintiff/Ap-pellee.
    Edward D. Cerrone, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR. and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Judge.

This is an appeal by the property owner in an expropriation case. Because we find that the property owner had adequate notice of the proceedings, that the trial court did not abuse its discretion in denying a continuance and that the trial court was not clearly wrong-manifestly erroneous as to the value of the property, we will affirm.

The property in question is a vacant lot in New Orleans. Defendant-appellant Laura Riera is one of the owners of the expropriated property. The plaintiff-ap-pellee is The New Orleans Redevelopment Authority (“NORA”). NORA is a government agency which has the authority and duty to expropriate blighted properties.

Following administrative proceedings, the New Orleans Department of Health declared the property in question to be blighted and a public nuisance, and eligible for expropriation, by an administrative adjudication of August 31, 2000. So far as the record reveals, no judicial review was sought as to that adjudication.

li>NORA obtained a December 1, 2001 appraisal report of the property which appraised the property at $22,400. NORA had a second appraiser review the December 1, 2001 appraisal report and confirm the appraisal of $22,400.

On March 27, 2002, NORA sent a letter to Ms. Riera, certified mail and return receipt requested, which: (1) informed her of the administrative adjudication that the property was blighted and enclosed a copy of the notice of judgment for the administrative adjudication; (2) informed her that NORA was proceeding to expropriate the property; (3) informed her of the $22,400 appraisal and informed her of the names and addresses of the two appraisers who had appraised the property; and (4) offered to buy the property for $22,400. Ms. Riera signed the receipt for this letter on April 4, 2002.

NORA filed a petition for expropriation on April 15, 2002. Service of process was made upon a curator ad hoc for Ms. Riera on April 17, 2002. Edward Cerrone, Esq. contacted the curator ad hoc and, on May 8, 2002, wrote a letter to the curator ad hoc and stated that he, Mr. Cerrone, represented Ms. Riera and would be filing responsive pleadings on behalf of Ms. Ri-era. On May 20, 2002, Ms. Riera, represented by Mr. Cerrone, filed an answer. The case was set for trial for June 20, 2002. On May 28, 2002, Ms. Riera filed a motion to continue the trial date.

At the outset of the trial on June 20, 2002, after questioning counsel as to the circumstances of the case, the trial court denied the motion to continue. The trial proceeded, with NORA presenting evidence, inter alia, of the $22,400 value of the 1 ¡¡property. The trial court rendered a judgment granting the expropriation and fixing the compensation at $22,400. Ms. Riera took the present appeal from that judgment.

Ms. Riera’s first argument on appeal is that she was denied due process because she did not receive notice of the expropriation proceedings sufficiently in advance of the June 20, 2002 trial date. However, Ms. Riera received actual, written notice of the appropriation proceedings and the $22,400 appraisal, with other pertinent information, no later than April 4, 2002, which was about two and a half months before trial. The only issue for trial was the $22,400 value found for the property by the appraisers. Ms. Riera had sufficient notice in light of the limited scope of the trial.

Ms. Riera’s next argument on appeal is that the trial court erred by denying her motion for continuance. Ms. Riera states that she moved for a continuance pursuant to Article 1601 of the Code of Civil Procedure which article provides that a continuance may be granted “if there is good ground therefor”. A trial court has “wide discretion” in deciding whether to grant or deny a motion for continuance under Article 1601. Hebert v. C.F. Bean Corp., 2000-1029 (La.App. 4 Cir. 04/25/01), 785 So.2d 1029, 1030. As mentioned above, the only issue for trial was the $22,400 value of the property determined by the two appraisers engaged by NORA. Ms. Riera’s motion for continuance, argument on the motion in the trial court and brief on appeal indicate only that Ms. Riera wanted additional time for unspecified discovery. No subjects of discovery were identified. There is no | ¿indication of how a continuance would have helped Ms. Riera contest the $22,400 appraisal of the property. Under the circumstance, we do not find that the trial court abused its “wide discretion” in denying the motion for continuance.

Ms. Riera’s third argument on appeal is that the property was improperly appraised as a site for a single family residence when, at one time, there had been an apartment building on the property. However, the property is in an area zoned for single family residences. The nonconforming use status, which had previously allowed the apartment building, had been lost by non-use. Therefore, the appraisal as a site for a single family residence was proper. Consequently, the trial court was not clearly wrong-manifestly erroneous in finding the value of the property to be $22,400.

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

AFFIRMED.


author: I!JOAN BERNARD ARMSTRONG, Judge.

text:
    STATE of Louisiana v. Jerry HALL.
    No. 2002-KA-1701.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.

      Harry F. Connick, District Attorney Leslie Parker Tullier, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defen-danVAppellant.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III and Judge TERRI F. LOVE).
   I!JOAN BERNARD ARMSTRONG, Judge.

STATEMENT OF THE CASE

The defendant, Jerry Hall, was charged by bill of information on April 9, 2001, with one count of armed robbery in violation of La. R.S. 14:64. The defendant pleaded not guilty at his April 12, 2001, arraignment. On June 5, 2002, a twelve-person jury found the defendant guilty as charged. On June 10, 2002, the defendant was sentenced to thirty years at hard labor without the benefit of parole, probation or suspension of sentence. On that same date, the State filed a multiple bill, and the defendant filed an oral motion for appeal, which the trial court granted. On July 25, 2002, after a multiple' bill hearing, the defendant was found to be a second felony offender. The trial court vacated its previous sentence of thirty years and re-sentenced the defendant to forty-nine years and six months without benefit of probation, parole or suspension of sentence. The defendant now appeals.

1 .STATEMENT OF THE FACTS

Noel Reimonenq, an independent Sunbeam bread distributor, testified that on December 26, 2000, after he made a delivery to K & M grocery store two individuals robbed him of sixty-six dollars. Mr. Reimonenq further testified that the two individuals grabbed him from behind as he left the store. One of the individuals wore a yellow jacket and blue jeans, and the other wore a black hooded jacket. The individual in the yellow jacket took out a gun and demanded the money. Mr. Reim-onenq complied and gave them the money he had. The two men then demanded that Mr. Reimonenq get in his truck with them, but he refused. The individual in the yellow jacket pointed the gun at Mr. Reimo-nenq who pushed it away. The individual in the yellow jacket then fired a shot at Mr. Reimonenq before the two ran away. Mr. Reimonenq identified the defendant in open court as the man who wore the yellow jacket and held the gun.

Detective David Hunter, of the New Orleans Police Department, testified that he conducted a follow-up investigation into the robbery of Mr. Reimonenq at the K & M grocery store. On the day of the robbery Detective Hunter interviewed Mr. Reimonenq and Mike Esmail, the owner of the grocery store. Mr. Esmail later testified at trial that as Mr. Reimonenq arrived to make his delivery he left his store to run an errand. As Mr. Esmail left the store he saw twins Jerry and Terry Hall standing on the side of his store wearing yellow and black jackets. Mr. Esmail gave Detective Hunter the names of the twins. As a result, Detective Hunter created a photo line-up. Detective Hunter had Mr. Reimonenq view the photographs, and he identified the defendant as the person who wore the yellow jacket and held the gun.

laTerry Hall, the defendant’s brother, testified that he and the defendant were in New Orleans East at the time of the robbery. He further testified neither he nor his brother own yellow or black jackets.

Mary Hall, the defendant’s mother, testified that she spoke to the defendant on her cell phone on the day of the robbery. According to the witness, the defendant said he was at his father’s home in New Orleans East.

ERRORS PATENT

Our review of the record reveals one error patent to wit: the minute entry of the multiple bill hearing does not reflect that the defendant’s sentence was imposed without the benefit of parole, probation or suspension of sentence. However, the transcript of the proceedings reflects that the sentence was imposed without benefits. When there is a discrepancy between the transcript and the minute entry, the transcript controls. State v. Beard, 547 So.2d 7 (La.App. 4 Cir.1989). Pursuant to La. R.S. 15:301.1 if the statutory restrictions had not been recited at sentencing they would have been included automatically.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends that the trial court erred when it restricted the defendant’s right to present a defense, and commented on defense and state evidence in the presence of the jury, which deprived the defendant of a fair trial.

To support his claim of denial of a fair trial, the defendant cites several instances in the trial court proceedings. The defendant argues he was prejudiced by the trial court’s refusal to allow his alibi witness to testify in plain clothes rather than prison attire. In State v. Marcelin, 94-2432, p. 3 (La.App. 4 Cir. 1/31/96), 669 So.2d 497, 498, this court rejected a similar argument, stating, “[o]nly sheer ^speculation supports the theory that this defendant was deprived of a fair trial because his witness, whom the jury would legitimately learn was a convicted felon, would lose his credibility because of his appearance in shackles.” See also State v. Washington, 95-771 (La.App. 5 Cir. 2/14/96), 670 So.2d 1255.

In the instant case, the defendant has cited no cases nor has he shown how he was directly prejudiced by the witness’s attire.

The defendant then cites as an error the trial court’s continuous sustaining of the State’s objections to the defense’s opening statement as argumentative, and the trial court’s continual interference in defense counsel’s cross-examination of a State witness and allowing the introduction of hearsay evidence.

A criminal defendant has the constitutional right to present a defense. Due process affords the defendant the right of full confrontation and cross-examination of the state’s witnesses. State v. Van Winkle, 94-0947, p. 5 (La.6/30/95), 658 So.2d 198, 201.

[D]efense should be allowed substantial freedom in cross-examining state witnesses. But the trial court may curtail such freedom when the questions asked are irrelevant or immaterial to the case. Questions are of material issue if they are of importance to the case. Questions are relevant if they tend to prove or negate the commission of the offense and the intent. Such rulings will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. (Citations omitted)

State v. Short, 94-0233, p. 4 (La.App. 4 Cir. 5/16/95), 655 So.2d 790, 792-793.

A conviction will not be overturned where the defendant does not show that he was prejudiced by a limitation of the cross-examination of a witness. State v. Revere, 572 So.2d 117 (La.App. 1 Cir.1990).

| ¡¡In the instant case, the defendant points to the cross-examination of State witness Detective David Hunter. The defendant contends that the trial court’s interference prevented the presentation of the defense of mistaken identity. However, the defense seems to spend a majority of the cross-examination questioning Detective Hunter on how the photo line-up was prepared. Defense counsel begins to question the officer about the possibility of another suspect named Brian, but then drops that line of questioning to focus on the photo line-up. The defendant has failed to show how the trial court’s sustaining of the State’s objections has prejudiced him.

The defendant points to the trial court’s admittance of hearsay evidence as an error.

La. C.E. art. 801(C) defines hearsay as a statement, other than one made by the declarant while testifying at the present trial or hearing, offered into evidence to prove the truth of the matter asserted. When hearsay evidence has been improperly admitted at trial, the error is deemed to be reversible and not harmless unless the appellate court determines, beyond a reasonable doubt, that the improperly admitted evidence did not contribute to the verdict. State v. White, 559 So.2d 541 (La.App. 2 Cir.1990).

During direct examination of Detective David Hunter the following exchange took place:

State: Detective Hunter, I want to take you back to the 26th day of December of the year 2000. Did you have occasion to respond to a signal 64(G)?
Witness: Yes, sir, I did. At that time I was assigned as a robbery investigator in the 5th District.
State: What happened when you responded to that signal?
| ^Witness: I met with the initial officer, Officer Dalton, the uniform officer that handled it. She briefed me on what she had. I learned that a Mr. Noel — I’m going to ruin his last name — Reimonenq, was the victim of a robbery in front of K & M food store located at Mazant and Derbigny. And that she had tentatively or she had identified two suspects in the case. And she had gone to the residence where these suspects lived but they were not there.

During re-direct examination of Detective Hunter the following exchange took place:

State: Detective, when you went to the first house, who were you looking for? Witness: The uniform officers went to both houses, sir, but they were looking for—
Defense: Objection.
Court: Overruled.
* * *

During the direct examination of state witness Mike Esmail the following exchange took place:

State: Was he able to give you a description of who had perpetrated this awful crime against him?
Witness: Yes, ma'am.
State: What description did he give you?
Defense: Objection, your honor.
Court: Overruled.

The statements admitted by the trial court appear to be hearsay because the -witnesses testified about the actions or statements of someone else, and not from their personal knowledge. However, the admission of the statements was harmless 17error because the verdict was not based on the hearsay evidence. The victim testified that he saw the gunman’s face as he demanded his money. Additionally, the victim was able to identify the defendant in a photo line-up and in court as the perpetrator.

The defendant complains the trial court made belittling comments to defense counsel. The judge is attributed with making two comments, which were:

Court: And I would sustain that objection.
Court: Well, we don’t know what she’s asking he’s aware of. Aware of what Miss Taylor?

Neither of these comments were belittling.

The defendant also complains that the trial court did not allow the defense to present the alibi testimony of the defendant’s brother Terry Hall. Specifically, he contends that the witness misunderstood the question, and therefore was prevented from giving testimony as to the defendant’s whereabouts, and the trial court prevented the defense the opportunity to clarify the question by sustaining the State’s objections. During the direct examination of Terry Hall by the defense the following exchange took place:

Defense: Let me refresh — Let me see if you can remember this date. December 26, 2000, was the day after Christmas two years ago, nearly two years ago, about a year and a half ago.
Witness: Yes, I remember.
Defense: Were you and your brother living at your mother’s home at that time?
Witness: Yes, ma'am.
Defense: And who else lived at the address along with you, your brother Jerry, and your mother?
| «Witness: My mama’s boyfriend, Kenny Wells, and my uncle, Charles Ross.
Defense: Were you at home at that address on the morning of December 26, 2000?
Witness: Yes, ma'am.
Defense: Did you see your brother Jerry that morning?
Witness: Yes, ma'am.
* * *
Defense: As clearly as you can remember, will you tell us what you remember about that morning, December 26, 2000? Witness: Well, December 25, which was Christmas day, me and my brother was together. We went out in New Orleans East to visit my dad. And we both come back home together December 26. Defense: I’m sorry, I said December 26. I may have sounded as if I said the 25th. What do you recall about the morning of December 26, the day after that Christmas in 2000?
Witness: Well, December 26 we both were home, December 26th. My brother, he have a girlfriend who stays in the next block where he goes a lot, often. Defense: And did you have a chance to wake up with your brother on the morning of December 26?
Witness: Yes, ma'am.
Defense: Did you go out to New Orleans East to visit your father on that day?
Witness: Yes, ma'am.
Defense: Can you tell me what time you left the house to go see your dad that morning, December 26?
Witness: I’m sorry, I don’t remember what time we left.
^Defense: Did you ever come to find out that" your brother, Jerry, was charged with an offense that was supposed to have occurred on December 26, 2000?
Witness: No, ma'am.
Defense: You’re not aware that your brother here is charged with the crime that was supposed to have occurred on December 26, 2000?
State: Asked and answered, Your Hon- or.
Court: Asked and answered.

During the re-direct examination of Terry Hall the following exchange took place:

Defense: So, Mr. Hall, you remember seeing your brother on December 26 in the morning of December 26 now? Witness: Yes, ma'am.
Court: We’ve been through all of this. This is nothing you can cover or [sic] redirect. We’re [sic] been through all of this and we’re not going to repeat everything that we’ve done.
Defense: Your Honor, it was addressed on cross. It was addressed on cross. She brought it out.
Court: No, I’m sorry my language is wrong. On redirect, we’re not going to deal with the same stuff again. They’ve heard all of it and we’re not going through that same stuff again. If there’s something new, you can deal with something new. Or something new that they brought out, you can deal with some of that.

The witness, Terry Hall, was allowed to testify as to his brother’s whereabouts on the morning of December 26. The trial court only prevented the defense counsel from asking the same questions on the subject to prevent repetition of evidence.

|inThe defense argues that the trial court commented on the testimony of Mary Hall and prevented testimony that would have impeached testimony given by the victim.

La.C.Cr.P. art. 772 provides:
The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
La. C.E. art. 607(D)(2) provides:
Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness’ testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice.

Defense counsel argued that Ms. Hall’s testimony would be used to impeach the trial testimony of the victim. The victim denied being unable to identify the defendant at a pretrial hearing. Defense counsel attempted to question Ms. Hall, who was present at the hearing, as to whether the victim was unable to identify the defendant at that time. In response to the State’s objection, the court asked counsel if she had a transcript of the prior hearing, and defense counsel never admitted that one existed. Thus, it is unclear that this “non-identification” actually occurred. In addition, the trial court noted that the defense had the opportunity to question the victim on cross-examination on this point and failed to do so. Therefore, the trial court did not err in prohibiting the defense from pursuing this line of questioning. There is no merit to this assignment of error.

|1TFor the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . The defendant notified this court of his desire to file a pro se supplemental brief and requested that a copy of the appellate record be forwarded to him. On April 9, 2003, this court forwarded a copy of the appellate record to the defendant and granted defendant forty-five (45) days from the date of the issuance of the order in which to file a pro se brief, but none was ever filed.


author: JjWILLIAM H. BYRNES III, Chief Judge.

text:
    MOSSY MOTORS, INC. v. CAMERAS AMERICA.
    No. 2002-CA-1536.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.

      Michael M. Christovich, Joseph E. Lee, III, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, Jerry B. Jordan, Jordan Law Firm, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   JjWILLIAM H. BYRNES III, Chief Judge.

The defendants, Cameras America, LLC, Boyd Baker and Sarah Baker, jointly appeal a default judgment in favor of the plaintiff, Mossy Motors, Inc., in the sum of $61, 202.07, plus interests and costs.

The plaintiff, Mossy Motors, Inc., filed a petition alleging the failure of the defendants to properly monitor a surveillance system, which failure resulted in the unlawful entry onto the premises of Mossy Motors who caused $59,602.07 damage to a number of motor vehicles and $1,600.00 in damage to the fence on the property. The petition described the defendants as follows:

A.CAMERAS AMERICA, L.L.C., (“Cameras America” or “Defendant”), on information and belief a Florida Limited Liability Company residing at 1176 Brampton Place, Lake Mary, FL 28746, and doing substantial business in the State of Louisiana and the Parish of Orleans;
B. BOYD BAKER, on information and belief a Florida domiciliary, and a principal and/or agent and/or officer of Cameras America, at 1176 Brampton Place, Lake Mary FL 23746;
C. SARAH BAKER, on information and belief a Florida domiciliary, and a principal and/or agent and/or officer of Cameras America, at 1176 Brampton Place, Lake Mary, FL 23746,

],I. DEFENDANTS’ ASSIGNMENT OF ERROR # 2

Taking the second of the defendants’ four assignments of error first because it is the simplest and most straightforward, the defendants contend that the plaintiffs failed to make a prima facie case against the individual defendants, Boyd and Sarah Baker. We agree. As shown above, the plaintiff alleges that Cameras America is a Limited Liability Company. The plaintiffs petition alleges that the Bakers are agents and/or officers and/or principals of the LLC. The petition gives as their address, the address of the LLC. The allegations against the LLC on the face of the plaintiffs petition create a presumption against the individual liability of the individual defendants. The burden was on the plaintiff to overcome this presumption at the confirmation of the default.

The plaintiffs failed to allege or offer any proof to support a finding of individual liability separate from that of the LLC. The plaintiffs offered only one witness at the hearing to confirm the default judgment: Roger Arthur Bacon, Jr., president and general manager of Mossy Motors. He gave the following testimony regarding the relationship between the plaintiff and Cameras America:

A. Cameras America is a company that designs and installs high tech security systems for monitoring purposes in various business with car dealerships specifically.
Q. And Mossy Motors paid Cameras America to conduct these monitoring activities?
A. For installation as well as monthly monitoring. [Emphasis added.]
Q. And part of your agreement with Cameras America, was that monitoring to be continuous 24 hours [a] day?
A. It was to be continuous with specific emphasis on after hours and weekends.
* * *
Q. And now, as part of your agreement with Cameras America, did they have the duty to report suspicious activity on the property to the police?
13A. Yes.
Q. Did they have the duty to use the loud speaker to try to deter theft?
A. Yes, they did.

The plaintiffs sole witness, Roger Bacon, Jr., further testified concerning the relationship among the parties and the duties owed by the defendants to the plaintiff. However, Roger Bacon’s testimony was limited to the LLC, Cameras America. The plaintiff offered no proof of any agreement between itself and the individual defendants. The plaintiff offered no proof of any duty owed by the individual defendants to the plaintiff. There is nothing in the record to support the decision of the trial court to cast the individual defendants in judgment along with the LLC. By way of analogy, see Concept 29 Uniform Service v. Roe, 542 So.2d 609 (LaApp. 5 Cir. 1989), in which a default judgment was set aside in part as it pertained to an individual defendant against whom the plaintiff failed to establish a prima facie case of individual liability separate from that of the corporate defendant, Pat’s Tire and Auto Service, Inc. Accordingly, it was error for the trial court to cast the Bakers in judgment.

II. DEFENDANTS’ ASSIGNMENT OF ERROR # 1

In reviewing a default judgment, an appellate court is restricted solely to determining whether the record contains sufficient evidence to support a prima facie case. Brasseaux v. Allstate Insurance Company, 97-0526 (La.App. 1 Cir. 4/8/98), 710 So.2d 826; Phillips v. Space Master International, Inc., 96-877 (LaApp. 5 Cir. 5/14/97), 696 So.2d 64; Brown v. Trinity Insurance Company, 480 So.2d 919 (La. App. 2 Cir.1985).

The presumption that the default was rendered upon sufficient evidence and is correct does not apply if testimony is transcribed and is contained in the record Las is true in the instant case. Band v. First Bankcard Center, 94-0601 (La.App. 4 Cir. 9/29/94), 644 So.2d 211; Skrantz v. Smith, 96-516 (La.App. 8 Cir. 12/11/96), 685 So.2d 492; Carroll v. Coleman, 27,861 (La.App. 2 Cir. 1/24/96), 666 So.2d 1264; Bates v. Legion Indem. Co., 01-0552 (La. App. 1 Cir. 2/27/02), 818 So.2d 176.

Moreover, this Court notes that in Ascension Builders, Inc., supra, 263 So.2d at p. 877-879, the Supreme Court held that while it is not necessary to transcribe the testimony offered at a default hearing, nor is it necessary to make a note of evidence, if the claim upon which the default is confirmed is based on written evidence that evidence must appear in the record.

The plaintiffs petition alleges in pertinent part that:

5.
On or about June 30, 2000, Mossy entered into a 5-year capital lease of video surveillance cameras for the purpose of monitoring the Broad Street Property.

This allegation and subsequent allegations contained in the petition describing certain details of the alleged lease agreement, while not specifying that the agreement was reduced to writing, admit of no other reasonable inference. The same can be inferred from the testimony of the only witness offered by the plaintiff when the default was confirmed.

On appeal, the defendants allege that the lease/contract for the video equipment with Mossy Motors was actually with another entity, Lease Corporation of America, which other entity purchased the video equipment from Crescent Diversified, Inc. The defendants also allege on appeal that Crescent Diversified, Inc. was responsible for the monitoring of the video equipment, but that agreement did not include the deterrence of suspicious activity.

IfiThe plaintiffs brief dodges the issue in this manner:

Though there was a contract here between Mossy and Cameras America, this matter was essentially a routine negligence claim[.]

The plaintiff does not deny the existence of a written agreement. The facts in this case create a striking analogy to those found in Ascension Builders, Inc. v. Jumonville, 263 So.2d 875, 878, 262 La. 519, 527-529 (1972), where the Supreme Court inferred the existence of a written contract under circumstances remarkably similar in principle to the substance of the facts of the instant case:

In order to obtain reversal of a default judgment appealed from, or to obtain a remand, defendant must overcome the presumption that the judgment was rendered upon sufficient evidence and that it is correct. When the judgment recites, as it does here, that plaintiff has produced due proof in support of its demand and that the law and evidence favor plaintiff and are against the defendant, the presumption exists that the judgment was rendered upon sufficient evidence and that it is correct. Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970); Massey v. Consumer’s Ice Co. of Shreveport, 223 La. 731, 66 So.2d 789 (1953); Nugent v. Stark, 34 La.Ann. 628 (1882).
This presumption which exists, when there is no note of evidence of parol testimony, that the judgment is well-founded and that it was based on competent evidence, is a fair and reasonable one conducive to the efficient administration of justice and should be given much weight. It has long been recognized in our law. Escurieux v. Chapduc, 4 Rob. 323 (La.1843); Hubbell v. Clannon, 13 La. 494 (1839). But it is, after all, only a presumption. It does not attach when the record upon which the judgment is rendered indicates otherwise. The presumption cannot be applied, for instance, in a case where the plaintiffs demand is one which of necessity, under the law, depends upon written proof. In such a case there should be more to support the presumption than the mere statement, more or less Pro forma, that the court, on confirmation of default, receives ‘due proof in support’ of the demand, or “the law and | fievidence being in favor thereof.” Francois v. Cloud, supra[, 149 So.2d 678 (La.App. 4 Cir.2/04/63)]; Landreneau v. Perron, 174 So. 140 (La.App.1937).
The question, then, is whether the absence from the record of the written building contract and the lien affidavit that form the basis of this suit makes it appear that the judgment was not rendered upon sufficient evidence and is not for that reason correct. If this is so, the presumption of legality which attaches to this judgment is removed, and the record must be found to be insufficient to support the judgment. A written contract was undoubtedly entered into by the parties and is the basis for the construction of the bakery building. The itemized statement annexed to the petition and made a part thereof refers to the balance ‘due on original contract.’ This language alleges a contract. Plaintiffs counsel, moreover, concedes in brief that ‘although a contract does exist it is not recorded.’ [Emphasis added.]

Id.

Just as the Supreme court in Ascension Builders inferred the existence of a written contract not in evidence, this Court is compelled to draw a similar inference in the instant case. Accordingly, it was error for the trial court to confirm the default in the absence of the written contract, or sufficient evidence to overcome the preponderating inference of the existence of a written contract.

III. DEFENDANTS’ ASSIGNMENT OF ERROR # 3

The defendants in their third assignment of error contend that it was an ill practice for the plaintiff to default them when the plaintiff knew that they were represented by local counsel, Mr. Harold Dearie. We disagree.

The question in the instant case is whether its similarities to this Court’s decision in, Conerly v. Jefferson, 2001-2220 (La.App. 4 Cir. 5/29/02), 820 So.2d 1173, outweigh its differences to such an extent that we should reach the same |7result in the instant case, i.e., was plaintiffs counsel required to give defendants’ counsel prior notice of his intent to confirm the default. The relevant part of the Conerly decision is as follows:

Further, we find that Conerly committed an “ill practice” when he did not notify Jefferson’s counsel of his intention to confirm the default. The fact that the Code of Civil Procedure does not mandate that counsel attempt to notify opposing counsel of his intent to confirm a default against opposing counsel’s client does not mean that failure to do so in an on-going petitory action is not an ill practice under La. C.C.P. art.2004. Russell v. Illinois Central Gulf Railroad, 96-2649, p. 2 (La.1/10/97), 686 So.2d 817, 819. La. C.C.P. art.2004 “is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party east in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). In Russell, the Supreme Court found it improper for the plaintiff to obtain a default judgment without notifying the defendant, when the defendant had participated in the litigation proceedings and inadvertently failed to file an answer to the plaintiffs amended petition. In the instant case, Jefferson filed a motion for extension of time to file his answer, clearly indicating his intent to contest Conerly’s claims. Although he filed his answer after the extension of time had expired, it is obvious that Jefferson was participating in the litigation. Conerly presented no evidence that he attempted to inform Jefferson of his intention to confirm the default. As such, Conerly’s actions constitute an ill practice under La. C.C.P. art.2004. [Emphasis added.]

Conerly, p. 4, 820 So.2d at p. 1176.

This case differs from Conerly and Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, in that in those cases it appears that prior to the default, although the defendant in neither case had filed a timely answer, they |shad made their legal presence felt to a significantly greater extent than the defendants did in the instant case.

In Crump v. Bank One Corp., 35,990, pp. 8-11 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1191-1193, the appellate court affirmed the default in spite of facts far more favorable to the defendant than those found in the instant case:

In this instance, FGB simply failed to file an answer. Even though its discovery responses were captioned with the case name, docket number, and court, there was no question or confusion as to whether FGB’s responses were in answer to the petition. FGB’s discovery responses were clearly captioned as answers to the discovery requests by Crump and not as answers to her petition. The denials of liability expressed by FGB in its responses were in answer to specific interrogatories and requests for admissions of fact propounded by Crump. The denials of liability were not in response to Crump’s petition. [Emphasis added.]
Having concluded that the discovery responses filed by FGB are not sufficient as an appearance or answer so as to preclude the harsh remedy of a default judgment, we also conclude that the filing of the discovery responses did not entitle FGB to notice of Crump’s intent to take a default judgment. [Emphasis added.] As amended by Acts 2001, No. 512 § 1, La. C.C.P. art. 1702(A) now provides, in pertinent part:
When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default.
According to the 2001 comments, Article 1702 was amended to conform the default procedure to the rationale of Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, which held that confirmation of a default judgment without notice |9against a party that had filed pleadings constituting an appearance of record was an ill practice. The comments further explain that “appearance of record” is intended to have the same meaning as in La. C.C.P. art. 1671. The 1997 comments under La. C.C.P. art. 1671, which pertains to voluntary dismissals, refers to appearance of record as including “filing a pleading, appearing at a hearing, and formally enrolling as counsel of record.” [Emphasis added.]
In Russell, supra, the party against whom the default judgment was rendered had participated in the ongoing litigation by filing a motion for extension of time and a dilatory exception of vagueness in response to the plaintiffs original petition. When the exception of vagueness was granted, the parties entered a consent judgment allowing the plaintiff additional time to file an amended petition and the defendants additional time to answer. The plaintiff filed an amended petition, which the defendant failed to answer. Without attempting to contact the defendant’s attorney, the plaintiff obtained a default judgment. The supreme court found the failure to attempt to notify opposing counsel in this ongoing petitory action of the intent to take a default judgment to be an ill practice under La. C.C.P. art. 2004. The court noted that opposing counsel had participated in the litigation proceedings, had inadvertently failed to file an answer to the amended petition, and had been actively attempting to defend the property rights at issue.
In this instance, the only action taken by FGB was the filing of discovery responses into the record. It did not file pleadings, appear at a hearing, or have an attorney formally enroll as counsel of record in these proceedings prior to confirmation of the default judgment. [Emphasis added.] Also, the facts here do not involve ongoing litigation as in Russell, supra. FGB’s failure to file an answer was without excuse or good cause. As a sophisticated litigant, FGB should be fully aware of the need to answer a petition and the consequences which arise from the failure to do so. Its actions in this matter do not amount to either an appearance in the record or participation in litigation which would require notice before confirmation. [Emphasis added.] Accordingly, we find that the trial court did not err in allowing Crump to proceed with the confirmation of the default judgment notwithstanding the discovery responses filed by FGB.
ImLastly, FGB argues that the trial court abused its discretion in denying its motion for a new trial. FGB argues that the “interests of justice” necessitate a new trial because its discovery responses raise a contested issued as to its liability for Crump’s account. FGB’s argument in support of a new trial again questions the adequacy of Crump’s case against it in confirming the default judgment.
In reviewing the denial of a motion for a new trial after proper confirmation of a default judgment, the reviewing court must be particularly cautious in examining the circumstances underlying the judgment. Thibodeaux v. Burton, 538 So.2d 1001 (La.1989); Lamb v. Lamb, 430 So.2d 51 (La.1983); Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App.2d Cir.10/4/00), 768 So.2d 812. The trial court has much discretion in determining if a new trial is warranted, and its ruling cannot be set aside except in a case of a manifest abuse of that discretion or where the facts convince the reviewing court that a miscarriage of justice would result. Lamb, supra; Hickman, supra. The trial court’s denial of new trial will not be disturbed on appeal even though the defendant may assert in his motion for a new trial that he has a meritorious defense. Carroll v. Coleman, supra[, 27,861 (La.App. 2d Cir.1/24/96), 666 So.2d 1264], Additionally, the mere failure to file an answer, without more, is not adequate grounds to grant a new trial. Lamb, supra; Carroll v. Coleman, supra. [Emphasis added.]

Thus, knowledge that the defendant has legal representation is not the standard for overturning a default. The proper standard is the clear, objective and reasonably predictable standard set forth in Crump, i.e., “an appearance of record” under La. C.C.P. art. 1702(A) and as defined by the 1997 Comment to La.C.C.P. art. 1671 must occur before prior notice of intent to confirm a default is required. The mere fact that a plaintiff may have knowledge that a defendant has representation is not sufficient to require notice of intention to confirm a default. In Crump the defaulted defendant’s attorney filed answers to discovery requests prior to the time the plaintiff confirmed the default, but the Crump court found that lathis was insufficient to constitute an “appearance of record” under La. C.C.P. art. 1702(A), i.e., the filing of a discovery response is not equivalent to “filing a pleading, appearing at a hearing, and formally enrolling as counsel of record.” The filing of a discovery response is not the filing of a pleading because La. C.C.P. art. 852 declares that:

The pleadings allowed in civil action, whether in principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers.... [Emphasis added.]

As a discovery response is neither a petition, exception, written motion nor an answer, Crump’s conclusion that such a filing is not a pleading and, therefore, not an appearance of record is correct.

Nothing that defendants or their counsel did in the instant case constituted an appearance of record. This establishes an objective bright-line standard that has the advantage of clarity and predictability as well as adequate safeguards for a defendant’s due process rights.

Accordingly, we find that plaintiffs counsel was not obligated to notify the defendants or their counsel of his intent to confirm the default. There is no merit to the defendants third assignment of error.

IV. DEFENDANTS’ ASSIGNMENT OF ERROR # 4

Defendants argue that under LSA-C.C.P. art. 1702(A) the plaintiff was required to send them notice by certified mail at least seven days prior to the confirmation of the default. The plaintiff is not required to do this where, as in the instant case, the defendants have made no appearance of record. There is no merit to this assignment of error.

liaFor the foregoing reasons, the judgment of the trial court is reversed and the case is remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED

      . Emphasis original.

      . Emphasis original.

      .Emphasis original.

      . Emphasis added.