author: _J^KUHN, J. ^DOWNING, J.,

text:
    STATE of Louisiana v. Robert “Bob” ODOM
    No. 2002 KW 2701.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Writ Denied Oct. 17, 2003.

      Doug Moreau, District Attorney, Baton Rouge by Sandra Ribes, Assistant District Attorney, Counsel for Respondent State of Louisiana.
    Mary Olive Pierson, Karl Koch, Baton Rouge, Counsel for DefendanVApplicant Robert “Bob” Odom.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   _J^KUHN, J.

Relator, Robert “Bob” Odom, the Commissioner of the Louisiana Department of Agriculture and Forestry (Department), was indicted by a grand jury and charged with 21 counts of various felony offenses including public bribery, conspiracy to commit public bribery, felony theft, conspiracy to commit felony theft, extortion, malfeasance in office, maintaining false public records, money laundering and conspiracy to commit money laundering. The respondent, the State of Louisiana (“the State”), subsequently dismissed Counts 4, 5, 9, 10, 12, 13, 14, 15, 16, 17, and 21. The background and facts of the case are stated in State v. Odom, 02-2404 (La.App. 1st Cir.06/27/03), 861 So.2d 202, also decided this date. In this writ application, relator seeks review of the trial court’s ruling denying his motion to quash Counts 1, 2, 6, 7, 8, and 11 based upon improper venue.

For the reasons that follow, we affirm the ruling of the trial court denying the motion to quash based upon improper venue.

Relator contends that despite the testimony of three State witnesses, the State failed to meet its burden of proving that the charged offenses or an element of the charged offenses occurred in East Baton Rouge Parish. He alleges that the prosecutors misunderstood the burden of proof and failed to establish that the charged offenses or an element of the charged offenses occurred in Baton Rouge.

Relator further argues that the bill of particulars “makes accusations of criminal conduct which clearly did not occur in the Parish of East Baton Rouge.” Relator states that the conduct that is the subject of the motion to quash was specified and identified on a copy of the final bill of particulars. Pursuant to his supporting memorandum, relator delineates eleven allegations in the bill of particulars about which he complains venue is improper in East Baton Rouge Parish.

As to Count 1, charging conspiracy to commit public bribery, relator lists four items which are the object of the motion to quash based upon venue: a bribe given from Tommy Roshto to relator in the form of cash and a campaign contribution check in Las Vegas in 1992, the negotiation and granting of a crawfish warehouse lease in St. Martin Parish in 1995, bribes from Roger Moore |3to relator (including one made in Las Vegas at the warehouse owners’ meeting in 1992), and the entire list of political contributions from warehouse owners to relator from 1985 though 2000. As to Count 2, charging public bribery, relator addresses two of those items, the alleged bribe from Tommy Roshto in Las Vegas and the entire list of campaign contributions.

The State contends that the charges in Counts 1 and 2 are based on allegations that warehouse owners paid bribes to relator to influence his conduct in relation to his position as the Commissioner of the Department of Agriculture and Forestry and that the Department’s state office is located in Baton Rouge. The State further argues that the conduct which the owners wished to influence was the award of contracts for warehouse food storage and that the bids for those contracts were prepared in, and the agency which awards the contracts (Louisiana Division of Administration) is in, East Baton Rouge Parish. The State further alleges that the invoices from the warehouse owners were submitted in Baton Rouge, the checks for payment of the contracts were prepared in Baton Rouge, the owners wished to influence relator’s conduct as the Commissioner, and relator’s acts were conducted in his capacity as the Commissioner, whose office is located in Baton Rouge.

Count 1 charges relator with conspiracy to commit public bribery. On November 8, 2002, the trial court granted relator’s previous motion to quash based upon time limitations as to any allegations in Count 1 that occurred before August 22, 1998. Most of the four specific items in Count 1, referred to by relator (cash and checks from Roshto in 1992, crawfish lease in 1995, contributions from Roger Moore in Las Vegas in 1992 and that portion of the campaign contributions list from 1985 through 1997), occurred before August 1998, and thus, were quashed in the November 8 ruling. Since we affirmed the November 8 ruling in State v. Odom, 02-2404 (La.App. 1st Cir.06/27/03), 861 So.2d 202, also decided this date, the issue related to the aforementioned allegations, as they pertain to Count 1, is moot. Relator’s arguments addressing that portion of the campaign contribution list which occurred after 1998 is not moot and will be addressed with relator’s argument pertaining to Count 2.

14Count 2 charges relator with public bribery by accepting cash payments from Tommy Roshto with the intent to influence conduct involving the warehouse food storage contracts. Among other allegations, the bill of particulars addressed alleged bribes by Roshto in 1992 in the form of a $5000 cash contribution and a campaign contribution in the form of a $2,500 check received by Odom in Las Vegas. In State v. Odom, 02-2698 (La.App. 1st Cir.06/27/03), 861 So.2d 187, also decided this date, we reversed that portion of the trial court’s December 5, 2002 ruling limiting the allegations in the bill of particulars regarding Count 2 to ten specific items in the campaign contribution list from 1987 through 1992. Thus, the remaining allegations of Count 2 involve payments from Tommy Roshto during the period of 1987 through 1992. This court must address whether the trial court properly determined that East Baton Rouge Parish is the proper venue for prosecuting these remaining allegations of criminal conduct.

At the hearing on the motion to quash based upon improper venue, the State presented the testimony of three witnesses. Skip Rhorer testified that he is the Assistant Commissioner for the Office of Management and Finance in the Department. He testified that all checks for payment of warehouse contracts are prepared by the Department of the Treasurer’s Office, which is located in Baton Rouge. The paperwork for the payments is processed in Baton Rouge. Once the Division of Administration approves a contract, a person in the Department of Agriculture, located in Baton Rouge, handles the ordering and transfer of the food for storage. Rhorer also testified that he was an unclassified employee and that relator’s campaigns in which he had been involved had headquarters in Baton Rouge.

IsLinda Chaney, the Fiscal Director for the Department, testified that she was an unclassified worker who also handled campaign finances for relator. She makes deposits of campaign checks in Hibernia Bank located in Baton Rouge.

Bonnie Kemp testified that she works in the State’s purchasing division of the Division of Administration, located in Baton Rouge. Her department handles matters involving any contracts for the Department that are above the amount of $10,000.00. She explained that the paperwork pertaining to the contract specifications and bid solicitation took place in Baton Rouge.

The trial court denied the motion to quash based upon improper venue. The court indicated that it did not hear any specific evidence as to where the bribes occurred. However, the court took judicial notice that the State’s indictment makes allegations against relator in his official and elected capacity.

Louisiana Constitution, art. I, § 16 requires that every person charged with a crime has the right to an impartial trial “in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.”

Louisiana Code of Criminal Procedure art. 611 provides for venue as follows:

All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.

Louisiana Code of Criminal Procedure art. 615 states:

Improper venue shall be raised in advance of trial by motion to quash, and shall be tried by the judge alone. Venue shall not be considered an essential element to be proven by the state at trial, rather it shall be a jurisdictional matter to be proven by the state by a preponderance of the evidence and decided by the court in advance of trial.

1 fiPursuant to a pre-trial motion, the trial judge is not required to find that a crime charged was committed but only that venue is proper by a preponderance of the evidence. State v. Gentry, 462 So.2d 624, 628 (La.1985). Additionally, the court may take judicial notice that a recognizable location is within a certain parish, even though the parish is never mentioned by name. See La.Code Evid. art. 201(B). See also State v. Batiste, 327 So.2d 420, 423 (La.1976); State v. Powell, 598 So.2d 454, 467 (La.App. 2d Cir.), writ denied, 605 So.2d 1089 (La.1992).

Louisiana Revised Statutes 14:118 provides for the offense of public bribery, in pertinent part:

A. (1) Public bribery is the giving or offering to give, directly or indirectly, anything of apparent present or prospective value to any of the following persons, with the intent to influence his conduct in relation to his position, employment, or duty:
(a) Public officer, public employee, or person in a position of public authority.
****
(e) Any person who has been elected or appointed to public office, whether or not said person has assumed the title or duties of such office.
(2) The acceptance of, or the offer to accept, directly or indirectly, anything of apparent present or prospective value, under such circumstances, by any of the above named persons, shall also constitute public bribery.
B. For purposes of this Section, “public officer”, “public employee”, or “person in a position of public authority”, includes those enumerated in R.S. 14:2(9), and also means any public official, public employee, or person in a position of public authority, in other states, the federal government, any’foreign sovereign, or any subdivision, entity, or agency thereof.

17Relator argues that the trial court erroneously relied on the fact that his official office and position are in East Baton Rouge Parish. He specifically argues performance of the act intended to be influenced is not an element of the crime of public bribery. He contends that the crime of public bribery does not require that the “conduct intended to be influenced actually occur” and that “it is irrelevant where it may occur.” He argues that the State must establish that the acceptance or offer to accept a bribe with the intent to be influenced must have occurred in East Baton Rouge Parish.

Relator primarily relies upon State v. Bloomenstiel, 285 La. 860, 106 So.2d 288 (1958). In that case, the defendant was a member of the Pontchartrain Levee Board, domiciled in the Parish of St. James, and was indicted in St. James Parish for public bribery. Defendant filed a motion to quash the bill contending that none of the elements -were committed or occurred within the Parish of St. James. A stipulation of facts showed that no money or anything of value was offered, given, or accepted-in the Parish of St. James and ■that there was no payment or disbursement of money or anything of value made, nor any money deposited in any bank or depository in St James. The Supreme Court concluded that no elements of the crime of public bribery occurred in St. James. The court noted the State’s argument that the only place where the defendant’s conduct is in relation to his position is where he could perform an official act, and not where the consideration is offered and accepted. The court concluded that the State’s argument, that venue was in the place in which defendant’s official conduct influenced by the bribery was exercised, was insufficient. In finding that venue was improper, the court explained:

The act complained of is public bribery. It is the giving to or receiving of money or anything of value, directly or indirectly, to a public official that, under the statute, constitutes the crime. The unmistakable object of the statute is to guard against the corruption of the mind of the officer by receiving a bribe, or being offered a bribe by another. Such corruption of the mind might, and most likely would, lead to official misconduct, and hence the first step is made criminal, without looking or waiting for results. This step, the accepting of a bribe as charged, was not committed in the Parish of St. James. This step was taken, it began and effectively completed the crime in some parish other than St. James, and without any [^relation to what might thereafter occur in said Parish, or in any parish comprising the Levee District.
Our conclusion is that the act of bribery was completed when there was a giving and acceptance of money or a thing of value under a corrupt agreement. These acts having been committed beyond the territorial limits of the Parish of St. James, the district court... was without jurisdiction of the prosecution and the motion to quash was correctly sustained and the defendant discharged.

State v. Bloomenstiel, 235 La. at 866-867, 106 So.2d at 291.

The State counters, urging that State v. Bloomenstiel addressed venue under the “substantial element” test, which was rejected by the legislature when La.Code Crim. P. art. 611 was enacted in 1962. Upon enacting Article 611, the State asserts that the legislature adopted the “act or element test.” State v. Roblow, 623 So.2d 51, 55 (La.App. 1st Cir.1993). In support of its argument, the state refers to the Official Revision Comment (b) to the statute that states:

In the above article the “act or element” test is adopted in preference to the “substantial element” test of the 1942 amendment of former R.S. 15:13. It will be noted that the act or element which confers venue must be one of several, which as a whole and united together constitute an offense.

Herein, the items at issue in Count 1 are the five 1999 campaign contributions in the list and in Count 2 are the campaign contributions from Tommy Roshto to relator in Las Vegas and the list of campaign contributions from 1987 though 1992. Linda Chaney testified that she handled the campaign finances for relator and that she made deposits of campaign checks in an account in Hibernia Bank located in Baton Rouge. Under La. R.S. 14:118(A)(2), the acceptance of a campaign contribution by a public officer under circumstances by which anything of value is given or offered to him with the intent to influence his conduct in relation to his position, employment or duty constitutes public bribery.

|9In Bloomenstiel, the court noted that there was no payment or disbursement of money made nor any money deposited in any bank or depository in the parish in which defendant was prosecuted. But herein, there was testimony that campaign contributions were deposited in a bank in East Baton Rouge Parish. The thing of value was not actually the check, but the money that relator received when the check from Roshto or others was processed and money was deposited in relator’s account. While we acknowledge that there was no specific testimony that the check from Roshto or others was deposited in and paid to the Baton Rouge bank account, we conclude that the testimony of the routine deposit of campaign checks into the Baton Rouge bank account was sufficient to prove by a preponderance of the evidence that an act or element of the questioned allegations in Count 1 and Count 2 occurred in Baton Rouge.

Additionally, our supreme court has recently analyzed venue under the “act or element test” of La.Code Crim. P. art. 611 in State v. Hayes, 2001-3193 (La.1/28/03), 837 So.2d 1195, 1199. Therein, the court reviewed a motion to quash an information that charged a defendant with felony theft. The Hayes court stated that the record was “unclear at this pretrial stage of the proceedings where the alleged acts of conversion took place .... ” State v. Hayes, 2001-3193, p. 1, 837 So.2d at 1196. However, although the defendant-employee had allegedly received $15,000 in cash under a contract for services rendered in La-fourche Parish, the court found that proper venue as to a charge relating to the missing cash was Calcasieu Parish, the parish where the defendant’s employer conducted business. In so concluding, the court examined the “essence of the offense” and instructed that “the place where the effect of the criminal conduct occurs is an important |inconsideration in determining whether the charged criminal acts have substantial contacts with the venue chosen for prosecution.” State v. Hayes, 2001-3193, p. 7, 837 So.2d 1195, 1199, citing State v. Cason, 198 La. 828, 5 So.2d 121, 123 (1941).

With respect to the offenses of public bribery and conspiracy to commit public bribery involved in the present case, the essence of these offenses is that the conduct of a public official (or other person referenced in La. R.S. 14:118) is intended to be influenced by the receipt of something of value. In this case, the alleged effect of the criminal conduct charged is the influence or potential influence of the award of the warehouse food storage contracts. The evidence established that these contracts were approved in Baton Rouge and the ordering and the transfer of the food for storage pursuant to these contracts took place in Baton Rouge. Thus, based on the evidence set forth by the State, the force of the defendant’s alleged criminal activity is felt in the Parish of East Baton Rouge. See State v. Hayes, 2001-3193, p. 7, 837 So.2d 1195, 1199.

Accordingly, we affirm the trial court’s ruling denying defendant’s motion to quash as to Counts 1 and 2.

Counts 6, 7, 8, and 11

As to Counts 6, 7, 8, and 11, relator submits that since the rulings of the trial court quashing the theft of use counts (with the exception of allegations of overdue payment for pine seedlings in Count 11) are affirmed in the State’s appeal, then the issue of improper venue of those counts is moot. Since we have In affirmed the rulings of December 5 and December 20 as to those counts, this portion of relator’s writ is moot.

DECREE

For these reasons, the writ is denied.

WRIT DENIED.

DOWNING, J., agrees in part and dissents in part and assigns reasons.

^DOWNING, J.,

dissenting.

I dissent as to Counts 1 and 2 solely on the issue of venue. In all other respects I agree with the opinion. On the issue of venue, the State has failed to present evidence to meet its burden of proving that any act or element of the offenses charged actually occurred in East Baton Rouge Parish. Accordingly, the trial court erred in denying relator’s motion to quash based on improper venue. I acknowledge that the State may file a new bill of information or indictment specifically alleging grounds for venue in East Baton Rouge Parish if it chooses, but it is not entitled to a second bite at the apple on this indictment.

As the majority states, the items at issue here are five 1999 campaign contributions listed in Count 1 and, on Count 2, campaign contributions from Tommy Roshto to Mr. Odom in Las Vegas together with the list of campaign contributions from 1987 through 1992. There is no evidence in the record to support a conclusion that any act or element of the charge in Counts 1 or 2 occurred in East Baton Rouge Parish. At best, the State has proven a possibility that bribes in the form of campaign contributions were deposited in and paid to a bank in East Baton Rouge Parish. Without testimony or other specific proof that any such contributions were deposited into a bank account in East Baton Rouge Parish, the state has failed to establish facts by a preponderance of the evidence that would make East | ¡¿Baton Rouge Parish a place of proper venue. See La.C.Cr.P. art. 615 and State v. Gentry, 462 So.2d 624, 628 (La.1985). Accordingly, the ruling of the trial court on the issue of venue in East Baton Rouge Parish should be reversed.

      . State v. Odom, 02-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, also decided this date.

      . We note that relator has not challenged venue with respect to the allegation of Count II addressing an overdue payment for pine seedlings.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    STATE of Louisiana v. Robert “Bob” ODOM.
    No. 2002 KA 2404.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Doug Moreau, District Attorney, Baton Rouge, by Sandra Ribes, Mark Pethke, Assistant District Attorneys, Counsel for Appellant State of Louisiana.
    Mary Olive Pierson, Karl Koch, Baton Rouge, Counsel for Defendant/Appellee Robert “Bob” Odom.
    Before: KUHN, DOWNING, and GAIDRY, JJ.
   KUHN, J.

Defendant, Robert “Bob” Odom, the Commissioner of the Louisiana Department of Agriculture and Forestry, was indicted by a grand jury and charged with 21 counts of various felony offenses including public bribery, conspiracy to commit public bribery, felony theft, conspiracy to commit felony theft, extortion, malfeasance in office, maintaining false public records, money laundering and conspiracy to commit money laundering. The state subsequently dismissed Counts 4, 5, 9,10,12,13, 14, 15, 16, 17, and 21. The remaining charges consisted of conspiracy to commit public bribery (Count 1), a violation of La. R.S. 14:26 and 14:118; public bribery (Counts 2 and 3), violations of La. R.S. 14:118; conspiracy to commit felony theft (Count 6), a violation of La. R.S. 14:26 and 14:67; felony theft (Counts 7, 8 and 11), violations of La. R.S. 14:67; filing or maintaining false public records (Count 18), a violation of La. R.S. 14:133; money laundering involving funds valued at twenty thousand dollars or more but less than one hundred thousand dollars (Count 19), a violation of La. R.S. 14:230; and conspiracy to commit money laundering (Count 20), a violation of La.‘ R.S. 14:26 and 14:230.

For the reasons which follow, we affirm the rulings of the trial court on November 8, 2002, granting the defendant’s motions to quash portions of Counts 1, 6, 7, 8, and 11.

Background and Facts

The indictment and the bill of particulars show that the state’s case has three components. Counts 1, 2, and 3 (public bribery and conspiracy to commit public bribery) pertain to allegations that defendant received bribes (campaign contributions, kickbacks, and a condominium “sold” to his daughter) from warehouse owners in exchange for food storage contracts. The State of Louisiana receives commodities from the federal government to be used for schools and other programs. The Department of Agriculture and Forestry (Department) contracts via the bid process with private warehouse owners to store cases of these commodities. The food is stored on a per case basis for a period of time. Each time the food comes into a particular warehouse, the Department is charged. The budget for food storage contracts is alleged to be four million dollars ($4,000,000) per year. Defendant, some of his employees, and some warehouse owners are | .-¡alleged to have conspired to manipulate the bid process so that certain owners would receive contracts.

The second part of the state’s case pertains to the use of Department employees and equipment for the personal use of defendant, his family and his church. Count 6 charges defendant with conspiracy to commit felony theft and Counts 7, 8, and 11 charge him with felony theft. The state alleges that the use of employee services and equipment and the late payment for pine seedlings constitute felony theft.

The remaining counts charge defendant with filing or maintaining false records (by failing to report income from the bribe money and items he received on his tax returns) (Count 18), and with money laundering and conspiracy to commit money laundering (by defendant’s church repaying a loan made from his campaign fund, by paying day care expenses of his grandchildren, and by making a “love offering” to his pastor) (Counts 19 and 20).

During the course of the pre-trial proceedings, the defendant filed a lengthy motion for a bill of particulars. The state filed several answers to the request for a bill of particulars. On November 8, 2002, the state filed a lengthy, revised bill of particulars, which it indicated was the final bill of particulars. Defendant also filed several motions to quash based upon numerous grounds. The motions sought to quash some counts in their entirety and to quash portions of some counts.

On November 8, 2002, the trial court ruled on the motions to quash which had been filed up to that date. The trial court granted some of the relief sought by defendant in the motions to quash, including an order that Counts 7, 8, and 11 be quashed as to allegations of theft of “employee services” and that the alleged acts |4in Counts 1, 2, 3, 18, 19, and 20 be limited to those not barred by the time limitations of La.Code Crim. P. art. 572. The trial court also ordered that language in some counts (such as “known and unknown” co-conspirators and “money of the citizens of the State of Louisiana”) be removed.

The state filed this appeal, challenging that portion of the November 8, 2002 ruling that granted the motions to quash as to five counts: conspiracy to commit public bribery (Count 1), conspiracy to commit felony theft (Count 6) and felony theft (Counts 7, 8, and 11). Defendant filed with this court a motion to dismiss the appeal or, in the alternative, to expedite this appeal or convert it to a supervisory writ. This court denied the motion to dismiss this appeal but granted the request for expedited treatment. In our action on the motion, we further stated that we “neither prohibit nor order the maintaining of the December 2, 2002 trial date on any matters not the subject of this appeal.” State v. Odom, 02-2400 (La.App. 1st Cir.11/25/02).

The state filed a motion to continue the trial, which was scheduled for December 2, 2002. The trial court denied this motion, and the state filed a writ application seeking review of that ruling. This court denied the writ, and the state sought review with the Louisiana Supreme Court. State v. Odom, 02-2594 (La.App. 1st Cir.11/27/02). The Supreme Court granted the motion for continuance and issued a per curiam stating that the district court should not reset the case until the merits of all its rulings with respect to the remaining counts have been finally resolved upon timely application for review. State v. Odom, 02-2932 (La.12/5/02), 835 So.2d 1286. Subsequently, this court issued an order setting deadlines for the state and defendant to file pretrial motions, for the trial court to hold hearings, and for the trial court to issue rulings. The order further provided that all motions for appeal and notices of application for supervisory writs were to |Bbe filed within five days of the rulings, at which time, this court would consider expediting the matters.

Subsequently, the state filed notices of appeal of the trial court’s rulings on December 5 and December 20, 2002, granting defendant’s motions to quash. Defendant filed a motion to consolidate the matters and to expedite the proceedings in the two appeals by the state (02-2404 and 02-2698) and the writ application of the defendant (02-2701). On January 28, 2003, this court issued an order granting the motion to consolidate the matters for oral argument and to expedite the proceedings. These matters were set on a docket of this court and orally argued by the parties.

In this appeal, we address the merits of two of the trial court’s rulings quashing portions of several counts. The first ruling is the trial court’s quashing of the portion of the charge in Count 1 (conspiracy to commit public bribery) that referred to conduct occurring prior to August 22, 1998. The second ruling is the trial court’s quashing of portions of Counts 6, 7, 8, and 11, which pertain to the use of employee services.

Louisiana Code of Criminal Procedure article 484 provides the authority for a bill of particulars:

A motion for a bill of particulars may be filed of right in accordance with Article 521. The court, on its own motion or on motion of the defendant, may require the district attorney to furnish a bill of particulars setting forth more specifically the nature and cause of the charge against the defendant.
Supplemental bills of particulars or a new bill may be ordered by the court at least seven days before the trial begins.
When a bill of particulars is furnished, it shall be filed of record and a copy of the bill shall be given to the defendant. La.Code of Criminal Procedure article

485 includes a provision for granting a motion to quash if it appears from the bill of particulars and the indictment that the offense charged was not committed, that defendant did not commit it or if there is another ground for quashing the indictment. Article 485 provides:

Uf it appears from the bill of particulars furnished under Article 484, together with any particulars appearing in the indictment, that the offense charged in the indictment was not committed, or that the defendant did not commit it, or that there is a ground for quashing the indictment, the court may on its own motion, and on motion of the defendant shall, order that the indictment be quashed unless the defect is cured. The defect will be cured if the district attorney furnishes, within a period fixed by the court and not to exceed three days from the order, another bill of particulars which either by itself or together with any particulars appearing in the indictment so states the particulars as to make it appear that the offense charged was committed by the defendant, or that there is no ground for quashing the indictment, as the case may be.

La.Code of Criminal Procedure article 532 provides the general grounds for a motion to quash:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

|7Count 1

Count 1 charged defendant with conspiracy to commit public bribery from “on or about January 1985 continuing through July 2002.” The indictment specifically states:

COUNT ONE: CONSPIRACY TO COMMIT PUBLIC BRIBERY, violating Louisiana Revised Statutes 14:26 and 14:118, in that
From on or about January 1985 continuing through July 2002, Robert “Bob” Odom, Jr., a person elected to public office, Commissioner of Agriculture and Forestry, knowingly and intentionally conspired with B. Lehman Williamson, Tommy Roshto, Ann Marie Williamson, Robert Moore and others, known and unknown to accept, directly or indirectly, anything of apparent present or prospective value, including but not limited to cash payments and a condominium, with the intent to influence his conduct in relation to his position, employment, or duty, involving warehouse food storage contracts;

The state’s bill of particulars contains over ten pages addressing Counts 1, 2, and 3. The bill of particulars states that defendant’s “involvement in the conspiracy began in 1987 and continued into July 2002” and that defendant conspired with some warehouse owners “to manipulate the process for warehouse food storage.... ” The bill alleges that in exchange for the award of contracts, these owners paid bribes to defendant in the form of direct payments, campaign contributions and a condominium given to defendant’s daughter. The state submits a list of warehouse owners’ campaign contributions to defendant from November 1985 through September 1999. The state contends that the contributions are “acts in furtherance and some are bribes.” The bill further contains a list of seven items which it contends are “additional acts in furtherance.”

The court quashed any allegations in Count 1 referring to activity that occurred before August 22, 1998, a date four years prior to the date of the indictment, based upon the time limitations for prosecution in La.Code Crim. P. art. 572. The trial judge further found that the exception in Article 573(3) to thej^time limits applicable to the crime of public bribery was not applicable to the charge of conspiracy to commit public bribery. The judge reasoned that the offenses of public bribery and conspiracy to commit public bribery are separate and distinct offenses.

La.Code of Criminal Procedure article 572 provides for the time periods applicable to defendant’s offenses, in pertinent part:

[N]o person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
* * *
(2)Four years, for a felony not necessarily punishable by imprisonment at hard labor;

La.Code of Criminal Procedure article 573 provides for specific exceptions to the time periods established in Article 572. Article 573 states:

The time limitations established by Article 572 shall not commence to run as to the following offenses until the relationship or status involved has ceased to exist when:
(1) The offense charged is based on the misappropriation of any money or thing of value by one who, by virtue of his office, employment, or fiduciary relationship, has been entrusted therewith or has control thereof.
(2) The offense charged is extortion or false accounting committed by a public officer or employee in his official capacity.
(3) The offense charged is public bribery.
(4) The offense charged is aggravated battery (R.S. 14:34) and the victim is under seventeen years of age.

In its brief, the state presents several reasons for its assertion that the trial court’s ruling was erroneous. First, the state argues that the time limitation for prosecution of the offense of conspiracy falls within the exception of La.Code Crim. P. art. 573(3). It specifically argues that the underlying offense for the conspiracy offense is contained in subsection (3) and that there is public policy for applying the exception to conspiracy in addition to the offense of public bribery. The state argues that policy considerations for the public bribery exception are ^equally applicable to and remain the same as those for conspiracy to commit public bribery. The state further argues that Article 573 recognizes that the time limitations should not commence to run until officials are out of their offices.

Defendant counters that the exception in La.Code Crim. P. art. 573(3) only applies when the charge is public bribery, not conspiracy to commit public bribery, as charged in Count 1. We agree.

The offense of conspiracy to commit public bribery, La. R.S. 14:26 and 118, is punishable by a fine of not more than $500.00, imprisonment with or without hard labor for not more than two and one half years, or both. Thus, this offense is one which is not necessarily punishable at hard labor and has a four year time period for prosecution.

La.Code of Criminal Procedure article 573(3) provides that when the offense charged is public bribery, the time limitations in Article 572 shall not commence to run until the relationship or status involved has ceased to exist. It is clear from the wording of Article 573(3) that it expressly provides for the exception in the offense of public bribery; the offense of conspiracy to commit public bribery is not listed in the statute. Although the state argues that the public policy concerns warrant an interpretation that the exception applies to defendant, a public official at the time of his indictment, it has cited no authority for its proposition. We cannot find any authority for extending the exception in subsection (3) to the crime of conspiracy to commit public bribery. Nor has the state shown that the legislature meant the exception to apply to conspiracy to commit public bribery.

Furthermore, the state quotes a portion of the Official Revision Comment (a) to Article 573, which states:

Even under the policy of definite periods of limitation, adopted in Art. 572, consideration must be given to certain particular types of cases in which that policy does not properly operate. Most states that have a definite time system have seen the necessity for so doing....

We do not interpret this comment as authority for the state’s interpretation of the statute. Rather, we believe that it is an explanation as to why there are exceptions to the definite periods of limitation of prosecution provided in Article 572.

Moreover, in determining the meaning of a criminal statute, penal statutes must be “given a genuine construction, according to the fair import of their words, Imtaken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” La. R.S. 14:3; State v. Pierre, 500 So.2d 382, 384 (La.1987). Nevertheless, it is a well-established tenet of statutory construction that criminal statutes are subject to strict construction. Any ambiguity in the substantive provisions of a criminal statute is resolved in favor of the accused and against the state. State v. Carr, 99-2209, p. 4 (La.5/26/00), 761 So.2d 1271, 1274. Therefore, we decline to interpret the exception in La.Code Crim. P. art. 573(3) to apply to the offense of conspiracy to commit public bribery.

Additionally, the state argues that the trial court’s ruling amounted to a prohibited pre-trial motion in limine excluding evidence. The state cites State v. Smith, 590 So.2d 58 (La.1991), and State v. Allen, 99-3257 (La.11/17/99), 750 So.2d 207, as authority for its argument.

In both Smith and Allen, the Louisiana Supreme Court reversed pre-trial rulings granting motions in limine to exclude evidence. In State v. Smith, the court ruled that the evidence at issue might be relevant regarding a particular issue raised in that case and that the trial court should make rulings on relevancy during the course of the trial as the questions were presented. Likewise, in State v. Allen, the court generally stated in a per curium opinion that relevancy of evidence is determined at the time it is offered.

The state also argues that the trial court’s ruling ignores the fact that “the evidence which the trial court has precluded under count one still remains validly admissible for counts two and three.” It contends that under State v. Prieur, 277 So.2d 126 (La.1973), or La.Code Evid. art. 404(B)(1), the evidence is admissible because it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

We do not find that the trial court’s ruling quashing portions of Count 1 is actually a pretrial ruling that certain evidence cannot be admitted as to Counts 2 and 3. The record indicates that the ruling pertains solely to Count 1. From our reading of the record, the trial court has not made any determination as to any questions of admissibility of evidence relevant to the charges of public bribery in Counts 2 and 3. There is a distinction between the prohibition against prosecuting defendant as to certain acts and the use and admissibility of evidence about those acts in the prosecution of another crime. The fact that the state is prohibited from charging defendant with conspiracy to commit public bribery as to certain |71 campaign contributions does not automatically exclude the introduction of relevant and admissible evidence of the campaign contributions at a trial on the related charges of public bribery. We do not express an opinion here on the admissibility of such evidence.

Thus, the state’s assignment of error number one lacks merit.

Counts 6, 7, 8, and 11

Count 6 charges defendant with conspiracy to commit felony theft. Counts 7, 8, and 11, charge him with felony theft of Department equipment, the services of Department employees, and items such as pine seedlings. The counts as stated in the indictment are as follows:

COUNT SIX: CONSPIRACY TO COMMIT FELONY THEFT, violating Louisiana Revised Statute 14:26 and 14:67, in that
From 1980 continuing through June 2002, Robert “Bob” Odom, Jr., a person elected to public office, Commissioner of Agriculture and Forestry, knowingly and intentionally conspired with Richard Herrin, Eric Gates, Tom Jacocks, Robert Rozanski, Melvin Lyons, David Stil-ley, Terrell Delphin, David Fields, Randall Johnson, Kevin Hopper and others known and unknown, to misappropriate through fraudulent conduct, practices, or representations, through various means, the money of the citizens of the State of Louisiana, with the intent to deprive them permanently of their money in an amount over $500.00;
COUNT SEVEN: FELONY THEFT, violating Louisiana Revised Statute 14:67, in that
From 1980 continuing through June 2002, Robert “Bob” Odom, Jr., a person elected to public office, Commissioner of Agriculture and Forestry, misappropriated through fraudulent conduct, practices, or representations, by the misuse of airplanes and airplane pilots for his personal use, the money of the citizens of the State of Louisiana, with the intent to deprive them permanently of their money in an amount over $500.00;
COUNT EIGHT: FELONY THEFT, violating Louisiana Revised Statute 14:67, in that
From January 1996 through December 1997, Robert “Bob” Odom, Jr., a person elected to public office, Commissioner of Agriculture and Forestry, misappropriated through fraudulent conduct, practices, or representations, by using Department of Agriculture and Forestry assets and personnel in the construction of his son’s house and daughter’s house, the money of the citizens of the State of Louisiana, with the intent to deprive them permanently of their money in an amount over $500.00;
ha COUNT ELEVEN: FELONY THEFT, violating Louisiana Revised Statute 14:67, in that
From 1997 continuing through August 2001, Robert “Bob” Odom, Jr., a person elected to public office, Commissioner of Agriculture and Forestry, misappropriated the value of pine seedlings and site prep work and other things of value on his property performed by Department of Agriculture and Forestry employees through fraudulent conduct, practices, or representations, the money of the citizens of the State of Louisiana, with the intent to deprive them permanently of their money in an amount over $500.00;

The pertinent part of the bill of particulars related to Count 6 alleges that defendant misappropriated state funds and conspired to give Department employees pay increases, promotions, and leave time in exchange for their work on defendant’s church and his son’s house. The state further alleges that defendant conspired to pay higher salaries to employees who worked on his campaign. Further allegations are that defendant hired the state veterinarian to write college papers for defendant’s son during the employee’s regular working hours. As part of the conspiracy, the state also alleged in subsection IV that defendant used Department employees during work hours and Department equipment for his personal projects at his church, hunting camp, farm, and children’s houses.

As to Count 7, the state alleges in the bill of particulars that defendant misappropriated state funds by the personal use of the Department airplane and the airplane pilot, a Department employee. The bill of particulars related to Count 8 alleges defendant’s use of Department employees, equipment, and assets for work on his children’s houses. This portion of the bill of particulars references the allegations under Count 6 pertaining to the use of Department employees. The Count 11 bill of particulars alleges that defendant used Department employees and equipment to complete site prep work and plant pine tree seedlings on his personal property. Additional allegations pertain to defendant’s overdue payments on Department invoices for the pine seedlings.

The trial judge granted the motion to quash “to the extent that the allegations in 6, 7, 8, and 11 are based upon [the theft of] employee services.” Specifically, the judge stated that he quashed any reference in Count 7 to the theft |13of the services of the Department’s airplane pilot. As to Count 8, the trial court also granted the motion to quash as to the allegations of the “use of personnel.” As to Count 11, the trial court quashed the portion addressing the use of employees’ labor but did not quash the allegations regarding the use of equipment.

Herein, the trial court reasoned that under State v. Gisclair, 382 So.2d 914 (La.1980), a person could not be prosecuted for theft of employee services. In Gisclair, the St. Charles Parish assessor used the labor of several employees of the parish assessor’s office to renovate his camp. This work was performed during regular working hours and the only pay that the employees received was their salaries from the state. Defendant was charged with theft and one count of public payroll fraud. The trial court found defendant was not guilty on these charges. Instead, the court found he was guilty of unauthorized use of movables (the services of state employees), a responsive verdict to theft.

In Gisclair, the Supreme Court referred to the broad definitions of “anything of value” and “services” and noted that whether services can be the object of theft does not end with that inquiry. The court stated:

The indictment charges that the services belonged to the parish and the state. The parish and the state cannot oum, the services of their employees. It has been held that ownership of services is not conveyed by a contract with the party to whom they are rendered because the knowledge or skill which a man possesses is not subject to ownership. Gonsalves v. Hodgson, 38 Cal.2d 91, 237 P.2d 656 (1951). Human effort and work are not the subject of ownership. If anyone oums them it is the employees themselves, and in this case there is no charge that the services were stolen from the employees. (Emphasis added. Footnote omitted.)

State v. Gisclair, 382 So.2d at 916.

The Gisclair court further noted that “many modern statutes make it theft to steal labor or services or the use of property” and that no such statute existed in | uLouisiana. Thus, the court concluded that a person could not be convicted of the theft of services of employees under the theft statute.

In the instant case, the state makes several arguments as to why Gisclair is not controlling in this case. The first is that Gisclair is distinguishable from the instant case; in Gisclair there had been a trial and a finding of fact that the employees made up the time spent on Gisclair’s camp, and, thus, the state was not deprived of funds. Herein, the state argues it is prepared to prove at trial that it suffered a loss and misappropriation of state funds when the value of the employees’ time was not returned to the state. The state also argues that since Gisclair has been cited only twice since rendered, it is a “relic” that should be overturned.

Defendant counters that Gisclair is still valid law and is applicable to the circumstances herein. Defendant argues that in the twenty years after Gisclair was rendered, the legislature has not chosen to amend the theft statute or enact a new statute, which would specifically provide for the theft of services.

We believe that the holding of Gis-clair is controlling in the instant case. While the Gisclair court agreed with the lower court’s analysis that the state suffered no deprivation because the employees’ services, used during traditional working hours, were returned to the state when the employees worked during other hours of the day and night, it explained that the inquiry must go further. The court found that although the indictment charged that the employee services belonged to the parish and state, the parish and state did not own the services of its employees. Thus, under the reasoning of Gisclair, because the employee services do not belong to or are not owned by the state, there can be no theft from the state when defendant uses the services of Department employees, even during working hours, for his personal benefit. There may be some other offense or offenses for which defendant may be charged related to the allegations of the indictment and bill of particulars, but theft is not the proper charge.

We do not agree with the state’s argument that Gisclair is a “relic” and should be overturned. Basic tenets of law do not provide that case law is incorrect 11fior is not authority merely because the opinion was rendered some time ago. Because our Supreme Court has provided no different interpretation of “anything of value” since Gisclair was decided, we are bound by its holding. Unless and until the Supreme Court interprets “anything of value” more broadly to encompass services, we must follow the Gisclair decision.

The state further asserts that Gisclair was legislatively overruled by the enactment of La. R.S. 42:1116 and 42:1461, which clarified public officials’ responsibilities. The state argues that these statutes are controlling as the last legislative expression on the issue.

Defendant disagrees that the legislature intended to overrule Gisclair by enacting La. R.S. 42:1461, arguing that if it had, the legislature would have amended the theft statute. He further contends that 42:1461 does not provide for the crime of theft of services. He argues rather that it creates only a civil remedy and that the terms “funds, property, or other things of value” are not broader than the definition of anything of value in La. R.S. 14:67, the theft statute.

Louisiana Revised Statutes 42:1461, which was enacted by Acts 1982, No. 786, § 1, after Gisclair was rendered, specifically delineates the duty of public officials and employees with regard to public property. The statute provides for the personal obligation of public officials and employees “not to misappropriate, misapply, convert, misuse, or otherwise wrongfully take any funds, property, or other thing of value belonging to or under the custody or control of the public entity in which they hold office or are employed.” Furthermore, the statute provides for a right of action in favor of the public entity for recovery of any funds, property or other things of value and for damages resulting from the breach of the personal obligation.

Louisiana Revised Statutes 42:1116 was enacted by Acts 1979, No. 443 and became effective on April 1, 1980, six days prior to the date of the opinion in Gisclair. The statute is in Chapter 15 of Title 42 which merely provides a code of governmental ethics. This statute was amended and reenacted by Acts 1997, No. 338 to broaden the statute. Under the current law, subsections (A) and (B) provide that no public servant shall use the authority of his office or position to compel or coerce another person to provide the public servant or other person with anything of economic value or to engage in political activity.

hfiWe conclude that Gisclair has not been legislatively overruled by the enactment of La. R.S. 42:1461 and 42:1116. The legislature certainly could not have enacted 42:1116 in response to Gisclair; that statute was enacted prior to the opinion in Gisclair. La. R.S. 42:1461 sets forth the personal obligation of public officials and employees with regard to public property and provides for the recovery of any funds, property, or other things of value and for damages which result from the breach of that personal obligation. This statute is not penal in nature and does not create an offense for which defendant may be prosecuted. Nor does it amend the theft statute under which defendant has been charged in Counts 6, 7, 8, and 11.

Thus, the state’s assignment of error number two lacks merit.

Decree

Accordingly, for these reasons, we affirm the November 8, 2002 ruling granting the defendant’s motions to quash portions of Counts 1, 6, 7, 8 and 11.

NOVEMBER 8, 2002 RULING GRANTING DEFENDANT’S MOTIONS TO QUASH PORTIONS OF COUNTS 1, 6, 7, 8, AND 11 AFFIRMED.

      . The rulings on Counts 19 and 20 were not appealed.

      . This appeal concerns only the trial court’s ruling on November 8, 2002. The trial court also issued rulings granting the motions to quash on December 5, 2002 and December 12, 2002. The state appeals those rulings in State v. Odom, 02-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, also decided this date. The district court denied defendant’s motion to quash counts 1, 2, 6, 7, 8, and 11 based upon improper venue. Defendant seeks supervisory review of that ruling in a writ application in State v. Odom, 02-2701 (La.App. 1st Cir.6/27/03), 861 So.2d 195 also decided this date.

      . The minutes refer to Count 17, but that count was previously dismissed by the state. The transcript of November 8, 2002, shows that the ruling pertained to Count 18. In the event of a discrepancy between the transcript and the minutes, the transcript prevails. State v. Lynch, 94-0543, p. 20 (La.App. 1st Cir.5/5/95), 655 So.2d 470, 481, writ denied, 95-1441 (La.11/13/95), 662 So.2d 466.

      . The rulings pertaining to Counts 18, 19, and 20 were not appealed.

      . On December 2, 2002, the trial court, ex proprio motu, continued the trial until December 4, 2002.

      . These rulings were appealed by the state and are addressed in State v. Odom, 02-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, also decided this date.

      . Under La. R.S. 14:26(c) and 14:118(c), this offense is punishable by a fine of not more than $500.00, imprisonment with or without hard labor for not more than two and one half years or both.

      . The trial judge also granted the motion as to allegations of employee services in Counts 2 and 3. The state has not appealed that portion of the judge's ruling.

      . The judge further ordered that if the state intends to assert any other crime in Count 11 "involving equipment,” an amendment to the bill of particulars was to be made by 4:30 p.m. on that day; otherwise, the entire count was to be quashed. The record does not establish that this amendment was ever made or that the entire count was ever quashed.
      In a ruling on December 20, 2002, the trial court quashed part IV of the bill of particulars as to Count 6. The court also quashed Counts 7 and 8 in their entirety and the bill of particulars as to those counts, and all portions of Count 11 and the bill of particulars, "except allegations pertaining to pine seedlings.” These rulings pertain to the remaining portions of the counts related to the use of Department equipment and assets and have been appealed by the state in State v. Odom, 02-2698 (La.App. 1st Cir.6/27/03), 861 So.2d 187, also decided this date.


author: hGREMILLION, Judge.

text:
    WESTLAKE PETROCHEMICAL CO. and Zurich American Ins. Co. v. TMG INDUSTRIAL SERVICES, INC., et al.
    No. 03-451.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Writs Denied Jan. 30, 2004.

      Robert E. Landry, Scofield, Gerard, Veron, Singletary & Pohorelsky, Lake Charles, LA, Ronald Restrepo, Stephen H. Lee, Doyle, Restrepo, Harvin & Robbins, L.L.P., Houston, TX, for Plaintiff/Appellant, Zurich American Ins. Co. and West-lake Petrochemical Co.
    Jennifer E. Michel, Preis, Kraft, & Roy, Lafayette, LA, for Defendant/Appellee, Evanston Insurance Company.
    James Anthony Blanco, Stockwell, Sie-vert, Viccellio, Clements & Shaddock, LLP, Lake Charles, LA, for Defendant/Appellee, United National Insurance Co., TMG Industrial Services, Inc. and The Meyer Group.
    Wade Thomas Visconte, The Gray Law Firm, Lake Charles, LA, for Defendant/Appellee, The Meyer Group.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The plaintiffs, Westlake Petrochemical Corporation and its insurers, Zurich American Insurance Company and AIC (West-lake), appeal the judgment of the trial court granting summary judgment in favor of the defendants, TMG Industrial Services, Inc., The Meyer Group, LLC, and their insurers, United National Insurance Company and Evanston Insurance Company, and dismissing the claims against them with prejudice. For the following reasons, we find that the grant of summary judgment was improper and remand the matter for further proceedings.

FACTS

On March 14, 2000, The Meyer Group entered into a contract with Westlake to construct a steam letdown and desuper-heat station in its Petro II unit. While The Meyer Group was in the process of constructing the station on April 5, 2000, Westlake experienced a power outage which led to the involuntary shutdown of its ethylene furnaces.

On March 20, 2001, Westlake filed a petition for damages alleging that the shutdown resulted from the actions of Michael Deshotel, an employee of The Meyer Group. Named as defendants were TMG Industrial Services, Inc., The Meyer Group, United National, and Evanston. In its petition, Westlake alleged:

TMG’s agents and employees caused the April 4, 2000 power outage when they were working in WPT’s facility and were in the process of pulling pipe through a pipe rack. At the time of the outage, Mike Deshotel, a TMG employee who was working alone in the area, was standing on a steel beam directly above the stanchion which contained [an uninterrupted power switch]. While on the steel beam approximately twenty feet above the UPS switch, Mr. Deshotel deliberately dropped a rope, chain and come-along, which struck and turned off the UPS switch. This, in turn, immediately shut off all power to WPT’s ethylene furnaces causing the furnaces to immediately and | ¡¡involuntarily shut down. As a result, WPT sustained property damages to its facility as well as business interruption losses, including loss of production and loss of business revenue and profits.

Westlake further alleged that Zurich, who provided insurance coverage for some of the damage it suffered, was subrogated to its rights in the amount of damages paid pursuant to its claim. Westlake alleged three causes of action against the defendants: breach of contract, negligence, and direct action against insurers. TMG, The Meyer Group, United National, and Ev-anston all answered this petition. In a First Supplemental Petition for Damages, Westlake amended its petition to add:

5A
At all times referenced herein, TMG Industrial Services, Inc. and The Meyer Group, L.L.C. were organized, controlled and operated in a manner so as to constitute a single business enterprise and/or alter egos of one another.

After more procedural maneuvering, TMG, The Meyer Group, United National, and Evanston filed the motions for summary judgment which are the subject of this appeal. The motions allege that the March 14, 2000 contract was the obligation of The Meyer Group, a separate juridical entity, and does not affect TMG. It further alleges that the contract does not clearly and unambiguously require The Meyer Group to provide contractual indemnification under the facts at issue, and that all of the defendants are entitled to summary judgment on the issue of damages suffered by Westlake. Following a hearing on the motion, the trial court issued judgment in favor of all of the defendants, dismissing with prejudice all of Westlake’s claims against them. It further designated the judgment as a final judgment. This appeal by Westlake followed.

|..ISSUES

Westlake raises four assignments of error on appeal. It argues that:

1.The trial court erred in resolving a disputed material fact by determining that a contract attachment was not part of the contract.
2. The trial court erred in interpreting paragraph eleven of the contract attachment by reading out the plain written words of the contract.
3. The trial court erred in resolving disputed material facts by weighing the evidence, making credibility determinations, and taking judicial notice of matters outside the summary judgment record.
4. The trial court violated La.Civ.Code P. art. 966(D) by granting summary judgment within ten days of the scheduled trial.

SUMMARY JUDGMENT

The standard of review in summary judgment cases is well settled, as is the fact that summary judgment is now favored pursuant to La.Code Civ.P. art. 966. Pursuant to Article 966(C)(2), if the mover will not bear the burden of proof at trial, then he is only required to “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Upon this showing, the burden then shifts to the adverse party to produce evidence establishing “that he will be able to satisfy his evidentiary burden of proof at trial.” Id. The threshold question in reviewing a trial court’s grant of summary judgment is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 108/97), 701 So.2d 498, writ denied, 98-0050 (La.3/13/98), 712 So.2d 882.

| ¿CONTRACT ATTACHMENT

In its first assignment of error, Westlake argues that the trial court erred in resolving a disputed material fact by finding that an attachment was not part of the March 14, 2000 contract.

In support of their motion with regard to this issue, TMG, The Meyer Group, United National, and Evanston introduced copies of both the contract and the attachment. The contract provides:

This agreement, effective as of March 12, 2000, is made and entered into by and between Westlake Petrochemicals Corporation, whose address is 900 Hwy 108, Sulphur, LA 70663, herein called “Company”, and The Meyer Company LLC, whose address is 917 Sampson Street, Westlake, LA 70669, herein called “Contractor”.
WITNESSETH
In consideration of the mutual covenants herein contained, Company and Contractor agree, promise, and obligate themselves as follows:
8.0 Attachments
All work shall be performed in strict accordance with the following attachments, attached hereto as a part of this Contract.
A. Contract Terms and Conditions This agreement supersedes any prior agreement oral or written between subscriber and Westlake Petrochemicals Corporation.
This agreement shall be controlling regardless of any other purchase orders that are in conflict with this agreement.

Attached to the contract is a document entitled “ATTACHMENT ‘A,’ WEST-LAKE GROUP of COMPANIES, CONTRACT TERMS AND CONDITIONS, |[AGREEMENT # WGC-0205.” The attachment consists of four pages of terms and conditions, and it is signed by David J. Fontana, Secretary/Treasurer of TMG Industrial Services, on June 2, 1998, and by Richard Gaudet, Senior Buyer for West-lake, on May 28,1998.

Based on this evidence, we find that The Meyer Group has established a prima facie showing that the two-year old attachment, signed by an officer of TMG, was not a part of its contract with Westlake. Accordingly, the burden shifts to Westlake to establish that it will be able to prove that the attachment was properly attached to this contract.

In opposition to the motion for summary judgment, Westlake introduced the affidavit of Rhonda Harrington, who works in the purchasing department procuring contracts and purchase orders for the various Westlake Group Companies. Harrington stated that contractors were required to sign the “Attachment A’ Contract Terms and Conditions” document before they could perform work at any Westlake Group facility. Once this document was signed, she stated that it would be attached to any subsequent contracts or purchase orders awarded to that contractor. She stated that this was the standard practice of the Westlake Group companies, and that this practice was carried out in the March 14, 2000 contract between Westlake and The Meyer Group. She further stated that she understood that TMG was a division of The Meyer Group.

Westlake further introduced the deposition testimony of Tim Meyer, the general manager of The Meyer Group. He is also the owner and president of TMG, which has existed since 1995. Although Meyer did not think the attachment was aj^part of the contract, he admitted that the terms and conditions contained in the attachment were probably those referenced in the contract. He further assumed that he would have to sign off on just such an attachment before his company could perform work for Westlake, but did not know if another such document referencing The Meyer Group existed or if the purchasing department was referencing the one signed by TMG to the contract. Meyer testified that he was not familiar with Westlake’s procedures and that he assumed someone in its purchasing department attached the document to the contract. However, he stated that he was not sure if the attachment signed by The Meyer Group’s sister company went with the contract. He then retracted his statement by stating that The Meyer Group and TMG were separate entities, although common people worked for both companies. *

Westlake also introduced into evidence the April 5, 2000 time sheets pertaining to The Meyer Group’s employees working on the steam letdown job. The time sheets are on TMG letterhead. It also introduced invoices from Rental Service Corporation for equipment which was leased by TMG. The five invoices reference job number 6237-003, which Meyer testified was the actual bid job. He stated that the equipment listed in the invoices was used on the steam letdown job. Meyer further testified that Deshotel was an employee of The Meyer Group, even though his March 8, 2000 Employee Withholding Exemption Certificate lists TMG as his employer.

Meyer was also questioned about a May 10, 1999 purchase order issued by West-lake to TMG, which he signed as a salesperson. The purchase order states, “ALL WORK TO BE PERFORMED IN ACCORDANCE WITH T & C’S I .AGREEMENT #WGC-0205 ESTABLISHED BETWEEN WESTLAKE GROUP AND TMG INDUSTRIAL.” When asked if this document refreshed his memory as to whether he would have had to sign off on such an agreement before being allowed to do work, Meyer stated that it did not.

Meyer testified that TMG is still in existence and that it owns equipment, which it leases to The Meyer Group and other companies. Meyer testified that his father owns The Meyer Group and Meyer and Associates, and that both The Meyer Group and TMG are covered under the same insurance policy.

Westlake also introduced the depositions of employees of The Meyer Group, who were working on the steam letdown job on April 5, 2000. Michael Daigle, a pipe fitter, testified that he saw no distinction between The Meyer Group and TMG. Charles Harrington, a pipe fitter for The Meyer Group for five years, testified that The Meyer Group and TMG are the same company. He stated that The Meyer Group is a newer name for TMG. Anthony Koonce, a pipe fitter and welder, testified that TMG was the sister company of The Meyer Group. He stated that The Meyer Group was involved in engineering, while TMG was involved with construction. Koonce further stated that he received his check from The Meyer Group.

Claude Aucoin, the field superintendent on the day at issue, stated that TMG stands for The Meyer Group, that it was the original name, and that it was transferred over to The Meyer Group. He stated that TMG no longer exists, that the company is now strictly The Meyer Group. He further testified that he was unsure if the March 14, 2000 contract was with The Meyer Group or TMG, but denied that lathe two companies were running simultaneously and that employees were bouncing back and forth between them. He agreed that TMG and The Meyer Group were one and the same company. James Olier, a pipe fitter, testified that he did not draw any distinction between The Meyer Group and TMG. Deshotel testified that he worked for The Meyer Group on several different occasions, but stated that he did not know if he was working for TMG or The Meyer Group.

Finally, Westlake introduced information provided to it by TMG on November 7, 1996, pursuant to its request to become an • approved vendor for Westlake. The letter sent by TMG is upon letterhead which states, “TMG Industrial Services.” Located underneath this is, “A Division of The Meyer Group.” The Vendor Questionnaire which is attached to this letter is signed by Meyer, as president of the company. Also attached is a Certificate of Insurance from the McElveen Insurance Agency, Inc., which lists the insured as being “THE MEYER GROUP INC— DBA — TMG INDUSTRIAL SERVICES INC.”

In granting summary judgment in favor of TMG, the trial court stated in its oral reasons:

The only argument against having it attached and accepted as part of the contract is the date of the attachment, number one, and the testimony of the parties that have been deposed. The lady from Westlake does not verify, does not recall whether or not she sent the attachment when she sent the contract to Mr. Meyers to sign. And Mr. Meyer’s testimony that he doesn’t recall that attachment being a part of the contract, but however, he feels like he would have, if he had to get the job, attach it is basically what he’s saying and it would’ve been part of the contract. But he doesn’t recall that being the case. That’s a close call. I have a problem with an attachment two years old being attached to a current contract and being made part of a contract. It’s sort of like saying that we’re [ 9going to be bound by contract two years past an activity going on today. That can probably be done, but there ought to be some ratification of that attachment either a letter or an endorsement or something signed saying that notwithstanding the date of this attachment, it is part of this current contract and we expect to be bound by this. I don’t find that there’s sufficient evidence in the record to support this attachment as being part of the contract.
Counsel for Westlake:
Judge,.—
The Court:
Notwithstanding argument counsel has made about the testimony of Mr. Meyers.
Counsel for Westlake:
And just so you understand, in the record there is evidence in our summary judgment opposition of other contracts—
The Court:
Doing the same thing.
Counsel for Westlake:
—doing the exact same thing and there’s the affidavit of our person saying this is our standard course of practice to attach by reference.
The Court:
This is true and let the record so reflect that fact and I did take that into consideration, but I’m only being asked to comment and make a ruling with regard to this attachment and whether it’s the custom of the business of Westlake is acceptable, is understandable. But, I’m not bound by that custom because I don’t find independent from that custom that if parties intend to be bound by an attachment two years old, there ought to be something so there can be no unambiguous acceptance of it. There ought to be signing by some current officer of the corporation, resigning it, recopying it or signing the attachment itself, the original, Imby some current member or some letter saying we understand that this thing is two years old, but we still want to be bound by it, something to corroborate the intention of the parties. Otherwise, I’m only looking at one side. I’m looking at Westlake’s custom and what Westlake says, but on the other side this person has not, to my satisfaction, accepted this attachment because he signed the contract, but he did not sign the attachment. For that reason, I don’t find that this attachment applies to this contract.

After reviewing the record and the trial court’s oral reasons, it is evident that it reached its decision only after delving into the merits of the matter and making factual determinations which are properly left to the trier of fact. “It is not the court’s function on a motion for summary judgment to determine or even inquire into the merits of the issues presented.” Lexington House v. Gleason, 98-1818, p. 6 (La.App. 3 Cir. 3/31/99), 733 So.2d 123, 126, writ denied, 99-1290 (La.6/25/99), 746 So.2d 603. The trial court, while comparing the testimony of Meyer and Rhonda Harrington on the issue of whether the attachment was a part of this contract, admitted that this was a “close call.” It further stated that it had a problem with a two-year-old attachment being made a part of this contract, without any further endorsement by The Meyer Group. The trial court is clearly weighing the evidence. Furthermore, the trial court relied on testimony which was not part of the record. It stated with regard to Harrington’s affidavit, “The lady from Westlake does not verify, does not recall whether or not she sent the attachment when she sent the contract to Mr. Meyers to sign.” Harrington’s affidavit simply states that the standard practice of Westlake was to have contractors performing work at its facility sign such a document as a prerequisite to performing work for it, which document would then be attached to any subsequent contract or purchase order performed by the contractor. She then states [ nthat this practice was implemented in the March 14, 2000 contract. Harrington never stated that she could not recall sending the attachment to Meyer as part of the contract. We further find that a genuine issue of material fact remains with regard to the question of whether TMG and The Meyer Group were, in fact, the same company. Accordingly, the grant of summary judgment on these issues was inappropriate and the matter is remanded for further proceedings.

CONTRACTUAL INDEMNIFICATION

In its second assignment of error, Westlake argues that the trial court erred in interpreting Paragraph Eleven of the attachment by reading out the plain written words of the contract. We agree.

Paragraph Eleven of “Attachment ‘A’ ” provides:

Contractor agrees to be liable for and shall indemnify, hold harmless, and defend Company, its directors, officers, employees, agents and representatives (hereinafter referred to collectively as “Company”) from and against any and all claims, losses, damages, causes of action, suites (sic) and liability of every kind, including all expenses of litigation, court costs, and attorney fees, for injury to or death of any person or damage to or destruction of any property, including the Work to be done hereunder and other property of Company, arising out of or in connection with the Work done under the contract by Contractor, its Subcontractors, employees, agents, representative, or third parties. Such Indemnity shall apply where the claims, losses, damages, causes of action, suits or liability arise in part from the negligence of Company. Contractor shall be responsible for all damage and loss sustained by Contractor to Contractor’s tools and equipment utilized in the performance of all work under this Agreement.
It is the expressed intention of the parties hereto, both Contractor and Company, that the indemnity provided for in the section is by contractor to indemnify and protect Company from the consequences of Company’s own negligence, whether active or passive, or whether such negligence is a concurring cause of the injury, death, or damage. However, the indemnify provided in the section shall have no application to any claim, loss, damages cause of action, suit, or liability where the injury, death or damage results from the sole negligence of l12Company.

In interpreting these clauses, the trial court stated:

I find that the language in the attachment, even if you accepted the attachment, when it says for and against, that conjunction seems to suggest to me that the parties intended to be bound by indemnification agreement in any loss to Westlake Group as a result of payment Westlake Group had to make to some third party. I just don’t think that they would’ve signed a contract for West-lake’s claim that it did not have to pay to a third party. Because it says for and against. Against, it’s got to be against Westlake. There’s got to be somebody making a claim against Westlake. I read that as a conjunction and both have to exist for the contract indemnification to apply. Even if the attachment was accepted as part of the contract, then I find that the language suggests that it has to be a third party involved here for indemnification to apply. I don’t find indemnification applies in this case for those reasons.

Although we agree with the trial court’s finding that “and” is a conjunction, we disagree with its finding that indemnification only exists if somebody is making a claim against Westlake. With regard to “and,” Blacks Law Dictionary, 87 (6th ed.1990), states:

A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first. Added to; together with; joined with; as well as; including. Sometimes construed as “or.” Land & Lake Ass’n, v. Conklin, 182 A.D. 546, 170 N.Y.S. 427, 428 [ (1918)].
It expresses a general relation or connection, a participation or accompaniment in sequence, having no inherent meaning standing alone but deriving force from what comes before and after. In its conjunctive sense the word is used to conjoin words, clauses, or sentences, expressing the relation of addition or connection, and signifying that something is to follow in addition to that which proceeds and its use implies that the connected elements must be grammatically co-ordinate, as where the elements preceding and succeeding the use of the words refer to the same subject matter. While it is said that there is no exact synonym of the word in English, it has been defined to mean “along with”, “also”, “and also”, “as well as”, “besides”, “together with”. Oliver v. Oliver, 286 Ky. 6, 149 S.W.2d 540, 542[ (1941)].

|-i ¡¡If the first sentence is broken down into two sentences, as it pertains to this issue, we have (a) Contractor agrees ... to ... indemnify ... Company ... from ... any and all claims, losses, damages, causes of action, suits and liability of every kind; and (b) Contractor agrees ... to ... indemnify ... Company ... against ... any and all claims, losses, damages, causes of action, suits and liability of every kind. (Emphasis added). The placement of “and” between “from” and “against,” implies that these words should have different meanings, otherwise, the use of “from” would be redundant. Reading the sentences separately, we find that it is clear that The Meyer Group agreed to indemnify Westlake from any and all damages, including all expenses of litigation, court costs, and attorney fees, for damages to or destruction of any property, including the work that was being done pursuant to the contract. Pursuant to Paragraph Eleven, The Meyer Group would only be excused from indemnifying Westlake if the damage arose as a result of the sole negligence of Westlake. “When a contract can be interpreted from the four corners of the instrument, the question of contractual interpretation is answered as a matter of law, and summary judgment is appropriate.” Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note, 01-2219, p. 13 (La.App. 1 Cir. 11/20/02), 837 So.2d 11, 24, writ denied, 03-0418 (La.4/21/03), 841 So.2d 805. The trial court’s interpretation of the sentence effectively reads out the word “from” from the contract. Since the contract is the law between the parties and, considering the plain language of the contract, we find that the grant of summary judgment on this issue was improper.

1 ^NEGLIGENCE

In its third assignment of error, Westlake argues that the trial court erred in granting summary judgment on the issue of its negligence claim against The Meyer Group, dismissing its claim with prejudice.

In support of their motion for summary judgment on the issue of negligence, TMG, The Meyer Group, United National, and Evanston introduced the depositions of The Meyer Group’s employees Deshotel, Aucoin, and William Gartman, as well as an excerpt from the deposition of Westlake employee, David Chaumont. It also introduced the letter terminating its contract with Westlake and the entrance logs for Westlake’s plant.

Deshotel testified that he was working up in the pipe rack moving pipe on the date of the incident. He stated that pipe was lifted up into the rack by a crane and then pulled along the rack by chain falls until it reached the location where it was to be welded into place. He stated that they started from the south end of the pipe rack and then worked their way north down the rack. Since there were not enough chain falls for every column, he stated that, once they were past a column, they would lower the chain fall to the ground and then move it down the alley to another column, where it would be pulled back up into the rack. Deshotel testified that a chain fall weighs approximately forty-five to fifty pounds.

Deshotel testified that Koonce threw him a rope and that he attached it to a chain fall and then lowered it until it was seven to eight feet off the ground. When he could not find Koonce, he stated that he lowered the chain fall all the way to the ground and dropped the rope to the ground. He estimated that the rope was h ¡¿fifty feet long. He testified that they were evacuated from the site approximately thirty to forty minutes later. He further stated that Olier told him that he moved the chain fall out of the middle of the alley and placed it next to the column where the switch was located.

Deshotel testified that he did not hit the switch in question with the chain fall. He stated that he lowered it slowly and that he was looking down for someone on the ground while he lowered it. He stated that he stopped lowering it when it was about seven to eight feet from the ground, to make sure that he did not hit anybody with it. Deshotel testified that there were people working around, other than The Meyer Group employees. He stated that he also saw an operator every now and then, and that he sometimes saw other people under the rack where they were working. However, he did not recall seeing anybody around when he was lowering the chain fall. He testified that he did see someone off to the side, on the other side of the column. If someone had been around, he stated that he would have asked them to catch the chain fall. Des-hotel testified that he did not see anyone enter the area and turn the switch off.

Aucoin testified that he was at the site on the morning in question, and that the shut down occurred prior to noon. He stated that they were still pulling pipe into the rack and that they had worked their way to the middle of the rack. He testified that they would normally barricade the area with yellow caution tape, unless there was a real crucial lift going on, at which time they would barricade the area with red tape. Red tape indicated that persons were to stay clear of the area. He remembered that the area where the welding was taking place was barricaded with |1fiyellow caution tape.

Aucoin stated that he heard the whistles and sirens going off and then the evacuation occurring. Sometime afterwards, he stated that he went out to the site with Olier and Westlake employees Pete Brown and David Chaumont, because they felt that a switch might have been tripped by one of The Meyer Group employees. He stated that they found a chain fall on the ground underneath the column on which the switch was located. Aucoin testified that Deshotel told him that he lowered the chain fall down from the pipe rack approximately seven feet east of the column, and that somebody moved it over to the column so that it was out of the way. He stated that Daigle said he saw Deshotel lower the chain fall away from the column. Aucoin admitted that he did not witness this.

The Meyer Group also introduced an excerpt from the deposition of its employee, William Gartman. He testified that the yellow barricade tape indicates that a person entering an area should use caution, whereas red barricade tape indicates that the area is closed and no one should enter it. He further testified that a part of their daily routine was to deal with housekeeping matters. This included picking up chain falls and moving them out of the walk area to prevent tripping. He stated that, nine times out of ten, once a chain fall was lowered, someone would pick it up and place it against a column or something out of the way. Gartman further testified that all of the employees on this job were experienced hands.

In the excerpt from his deposition, Chaumont affirmed that Westlake’s conclusion that Deshotel tripped the switch while lowering the chain fall was solely based on the fact that The Meyer Group’s equipment was found at the base of the |17column containing the switch and that they were working in that area. In its termination letter to The Meyer Group, Westlake stated the following:

An inspection following the incident found that the breaker switch that shuts down the entire facility was set to the “OFF” position. Upon further investigation, it was revealed that employees from The Meyer Group were the only persons located in the immediate area of the switch just prior to and at the time of the shut down. Because it has become increasingly evident that employees from your company were responsible for the shut down of the Petro II plant, please be advised that the above-referenced contract between Westlake Petrochemicals Corp. and The Meyer Group, LLC (the “Contract”) is hereby terminated effective immediately.

Finally, The Meyer Group introduced the entrance logs for Westlake’s plant. The April 5, 2000 logs reveal that The Meyer Group entered the plant at gate six, with their destination being the “site.” Prior to the incident, employees for The Meyer Group entered the gate at 6:44, 6:45, and 7:09 a.m. Of the sixteen persons entering the plant, whose destination was the “site,” only three were listed as working for The Meyer Group. Seven persons entered gate six heading for the Petro II Unit. The logs from the main gate show that only eleven persons checked in prior to noon, with their destination being the Petro II Unit. Three of these checked in at least twenty minutes to noon.

After reviewing this evidence, we find that the evidence presented by The Meyer Group fails to establish a prima facie showing that its employee was not negligent in hitting the switch in question while lowering the chain fall. The evidence presented raises a question of fact as to the possible cause of the incident, especially when viewed in light of the deposition testimony presented by Westlake.

Jayce Hoffpauir, a Westlake employee, testified that he found the switch in the “off’ position approximately thirty to forty-five minutes after the incident |1Roccurred. He testified that The Meyer Group’s scaffolding was located directly above and slightly to the south of the switch. He further stated that a chain fall was on the ground, which was attached to a rope connected to the rack. He stated that the rope was hanging down along the face of the switch, approximately one foot off of it. Also located nearby was a tool bucket and a safety harness.

Koonce testified that he saw the chain fall in the middle of the alley, seven to eight feet from the switch, fifteen to twenty minutes prior to the surging of the flare, which warned of the shutdown. He stated that someone picked it up and placed it against the column. He further stated that J.E. Merit Contractors were working a bit east of The Meyer Group’s job location.

Daigle recalled Deshotel lowering several chain falls to the ground, but stated that he focused on Deshotel while he was doing so, and that he did not watch the chain falls all the way down. He testified that he did not move the chain fall once it was on the ground, nor did he see anyone else do so. He further stated that he did not see how it was possible for Deshotel to hit the switch, since he was six feet away from the switch when he lowered the chain fall. Finally, he could not recall seeing any other persons or jobs going on in the same vicinity of their job.

Charles Harrington testified that he did not see anyone else working below the pipe rack while they were working there.

After considering the evidence introduced into the record, we find that genuine issues of material fact remain with regard to the issue of the possible negligence of The Meyer Group in causing the April 5, 2000 shutdown. Genuine issues of material fact remain on the issue of whether Deshotel lowered the chain fall in such a way that it hit the switch or whether the chain fall was moved after he | ¶ flowered it. Moreover, genuine issues remain as to whether any other persons were present in the area at the time the switch was shut off. Although the logs reveal that numerous persons were in the Petro II Unit, The Meyer Group’s own employees testified that no one else was in the area where they were working. Accordingly, we find that the grant of summary judgment on this issue was inappropriate. Therefore, we remand the matter to the trial court for further proceedings.

Because we are remanding the matter for trial, Westlake’s final assignment of error is rendered moot.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings. The costs of this appeal are assessed to the defendants-appellees, TMG Industrial Services, Inc., The Meyer Group, LLC, and their insurers, United National Insurance Company and Evanston Insurance Company.

JUDGMENT VACATED; REMANDED.