author: 1 JAMES F. MeKAY III, Judge.

text:
    Barbara LYONS v. PROGRESSIVE INSURANCE COMPANY and its Insured, David A. Ripoll and State Farm Insurance Company.
    No. 2003-CA-2163.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 2004.

      Glenn E. Diaz, Carlos A. Zelaya, II, Chalmette, Louisiana, for Plaintiff/Appel-lee.
    Eric A. Bopp, Walter R. Woodruff, Jr., Edward S. Bopp — a Law Corporation, Ar-abi, Louisiana, for Defendani/Appellant, David Ripoll.
    Renee’ McGinty, Morse, McGinty, Bor-delon & Casler, Metairie, Louisiana, for Defendants/Appellants, David Ripoll and Progressive Insurance Company.
    (Court composed of Judge JAMES F. MeKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   1 JAMES F. MeKAY III, Judge.

The defendants, David Ripoll and his insurer, Progressive Security Insurance Company, devolutively appeal the judgment awarding the plaintiff, Barbara Lyons, general and exemplary damages. We affirm.

FACTS AND PROCEDURAL HISTORY

On August 16, 1997, Barbara Lyons was driving south on Rowley Boulevard in Chalmette. She crossed the intersection and turned onto St. Bernard Highway on a green light. David Ripoll was traveling west on St. Bernard Highway. Mr. Ripoll ran a red light and struck Ms. Lyons’ car. Ms. Lyons had to be extricated from her car and was transported by ambulance to Charity Hospital. At the time of the accident, Mr. Ripoll was leaning over searching for a compact disc. Prior to the accident, Mr. Ripoll, who weighs 160 pounds, had consumed one 16-ounce beer and two 12-ounce beers. Mr. Ripoll was also arrested for DWI after the accident.

As a result of the accident, Ms. Lyons suffered multiple facial contusions, internal injuries, and broken bones, including multiple fractures to the pelvis. Her | ^injuries required emergency surgery to repair her internal injuries and another surgical procedure for her pelvis as well as a third surgical procedure for a blood clot that subsequently developed. After the accident, Ms. Lyons spent about three weeks in the hospital. She also could not walk for six months after the accident. Due to her condition, she was unable to care for herself or her teenage son and she had to move in with her mother, who along with her teenage son, cared for her during this time. Ms. Lyons is still experiencing residual pain from her injuries.

On October 30, 1997, Ms. Lyons filed suit against Mr. Ripoll and his insurer, Progressive Security Insurance Company. A bench trial was held on June 2, 2003. The parties agreed to stipulate to liability so the trial court only considered the issue of damages. On August 28, 2003, the trial court awarded Ms. Lyons $500,000.00 in general damages, $100,000.00 in exemplary damages and $52,612.79 in medical expenses. It is from this judgment that the defendants appeal.

DISCUSSION

On appeal, the defendants raise the following assignments of error: “1) the trial court committed manifest error when it held that the evidence established that defendant Ripoll was intoxicated and relied upon the inadmissible hearsay evidence and opinions unsupported by any established scientific methodology, and that the other elements for an award of exemplary damages, under Louisiana Civil 13Code Ar-tide 2315.4, were present in this case; 2) the trial court abused its discretion when it made an award for general damages in the abusively high amount of $500,000.00; 3) the trial court erred, as a matter of law, when it made an award for “Present, and Future Exemplary Damages,” when the purpose for such awards is to punish past conduct and, by that punishment (not continued punishment), deter future similar acts; and 4) the trial court abused its discretion when it made an award for exemplary damages, assuming arguendo that any award should have been made therefore, when the award of $100,000.00 was abusively high under the circumstances of the instant case.”

A trial court may award exemplary damages upon proof that “the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause-in-fact of the resulting injuries.” La. C.C. art. 2315.4. Recovery of such damages requires proof of three elements: (1) that the defendant was intoxicated or had consumed a sufficient quantity of intoxicants to make him lose normal control of his mental and physical faculties; (2) that the intoxication was a cause-in-fact of the resulting injuries; and (3) that the injuries were caused by the defendant’s wanton or reckless disregard for the rights and safety of others. Lafauci v. Jenkins, 2001-2960, p. 7 (La.App. 1 Cir. 1/15/03), 844 So.2d 19, 25. Louisiana courts have recognized that a driver’s intoxication may be proven by circumstances even absent a positive alcohol test. See Drouant v. Jones, 2002-0356, p. 3 (La.App. 4 Cir. 11/26/02), 834 So.2d 518, 520. The decision to award ^exemplary damages under La. C.C. art. 2315.4 rests within the sound discretion of the trier of fact. Khaled v. Windham, 94-2171, p. 12 (La.App. 1 Cir. 6/23/95), 657 So.2d 672, 681.

In the instant case, the trial court found that Mr. Ripoll was intoxicated and that his intoxication was a cause-in-fact of the accident. In reaching these conclusions, the trial court relied upon the deposition testimony of the investigating officer, Trooper Tim MeGruder, as well as other facts. Mr. Ripoll had consumed 40 ounces of beer in the two to three hour time period just prior to getting behind the wheel of his car; Mr. Ripoll also weighed 160 pounds. At the time of the accident, Mr. Ripoll was bent over searching for a compact disk and didn’t even see Ms. Lyons’ car or the red light. Mr. Ripoll admitted these actions. Given these factors, it was reasonable for the trial court to find that Mr. Ripoll was intoxicated and that his intoxication was a cause-in-fact of the accident. As such, an award for exemplary damages was proper.

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). In the instant case, Ms. Lyons suffered multiple facial |ficontusions, internal injuries, and broken bones, including multiple fractures to the pelvis. Her injuries necessitated three surgical procedures. She spent approximately three weeks in the hospital and was unable to walk for six months after the accident. Considering the effects of the particular injuries to Ms. Lyons under the circumstances of this case, a general damage award of $500,000.00 was not beyond that which a reasonable trier of fact could assess in this case. Accordingly, we find no abuse of discretion in the trial court’s award of general damages.

Exemplary damages are given to a plaintiff over and above the full compensation for her injuries for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defendant’s conduct. Mosing v. Dumas, 2002-0012, p. 15 (La.10/15/02), 830 So.2d 967, 978. In Mosing, the Louisiana Supreme Court considered the following factors to review and uphold a $500,000.00 exemplary damage award: (1) the nature and extent of the harm to the plaintiff; (2) the wealth or financial situation of the defendant; (3) the character of the conduct involved; and (4) the extent to which such conduct offends a sense of justice and propriety. Id. at 977. Furthermore, the trial court has much discretion in setting the amount of exemplary damage awards. Selvage v. Robert Levis Chevrolet, Inc., 98-197, p. 11 (La.App. 5 Cir. 9/16/98), 719 So.2d 1088,1093.

Ifiln the instant case, the trial court awarded $100,000.00 in exemplary damages. Considering the nature and extent of harm to Ms. Lyons and the fact that the trial court awarded $500,000.00 in general damages, this award does not seem to be exceedingly high. In any event, the award in no way appears to be an abuse of the trial court’s discretion.

CONCLUSION

In light of the record before this Court, the trial court’s findings that Mr. Ripoll was intoxicated and that his intoxication was a cause-in-fact of the accident appear reasonable. The awards of $500,000.00 in general damages and $100,000.00 in exemplary damages also appear reasonable. Therefore, for the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Ms. Lyons also sued her uninsured/underin-sured motorist carrier, State Farm Insurance Company. State Farm settled with the plaintiff before trial and was dismissed from the suit.

      . The trial court amended its judgment pursuant to La. C.C.P. art. 1951. The amended judgment reflected the appearance of Renee McGinty on behalf of defendants and Kim Chatelain on behalf of Charity Hospital. It also acknowledged that Progressive deposited into the registry of the court interest, court costs, and its policy limits ($10,000.00) on behalf of Mr. Ripoll. These amendments did not alter the substance of the judgment.

      . The trial court’s judgment awarded a lump sum of $100,000.00 for what it labeled "Past, Present and Future Exemplary Damages.” This label is erroneous. Exemplary damages are by their very nature punitive and are designed to have a deterrent effect on a defendant or others from acting in the same way. Because the trial court awarded a lump sum for exemplary damages, the trial court's erroneous classification can be overlooked as an oversight or mistake. However, if separate awards had been made for past, present and future damages, such a conclusion could not have been so easily reached.


source: Caselaw Access Project

author: BMAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    Elroy ECKHARDT, Trustee of the Livia Eckhardt Trust v. Bryce W. REVELEY.
    No. 2004-CA-0288.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 21, 2004.

      Frank Sloan, Mandeville, LA, for Plaintiff/Appellant, Elroy Eckhardt, Trustee of the Livia Eckhardt Trust.
    Robert C. Lowe, David M. Prados, Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, New Orleans, LA, for Defendant/Ap-pellee, Bryce W. Reveley.
    (Court Composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   BMAX N. TOBIAS, JR., Judge.

Elroy W. Eckhardt appeals the trial court’s granting of an exception of prescription, dismissing his suit. For the following reasons, we affirm.

The plaintiff/appellant, Elroy W. Eck-hardt (“Eckhardt”), and defendant/appel-lee, Bryce W. Reveley (“Reveley”), were married on 30 June 1984 and divorced on 4 June 1998. The parties were separate in property, having executed a pre-marital contract on 28 June 1984.

On 22 December 1998, Eckhardt, in his capacity as trustee of the Livia Eckhardt Trust, filed the present suit against Reve-ley for the recovery of monies and the return of property. Specifically, Eck-hardt’s petition alleged the following: (1) prior to his marriage to Reveley, Eckhardt formed a corporation, FAB-Service Inc., of which Reveley became the sole shareholder, director, and officer; (2) prior to his marriage to Reveley, Reveley formed a corporation, T.K. Associates, Inc., of which Reveley was the sole shareholder, director, and officer; (3) Eckhardt directed rebates, credits, commissions, and payments from the purchase of pipe in his pipe fabricating business through the two corporations to Reveley; (3) between June 1982 and May 1985, Reveley received over $214,000.00 through (from) T.K. ^Associates, Inc. and FAB-Service, Inc., which she neither earned nor was she entitled to at the time; (4) on 15 June 1997 Eckhardt attempted to donate to the Livia Eckhardt Trust any rights he had against Reveley for the monies advanced to or received by Reveley through the two corporations prior to their marriage; (5) during the early 1990’s, Eckhardt advanced (a) $8,000.00 to Reve-ley for improvements to Reveley’s separate residence and (b) $85,000.00 to Reve-ley, to cover (i) business expenses for Reveley’s business, and (ii) for mortgage payments on Reveley’s separate property; and (6) Eckhardt is entitled to $1,500.00 for a set of stereo speakers that Reveley used for a trade-in. (We note that Eck-hart filed a supplemental and amending petition on 10 April 2003 naming additional parties plaintiff; however, the pleading neither sets forth nor explains how the additional parties plaintiff are in any way related to this suit.)

In response to Eckhardt’s petition, Reveley filed exceptions of prematurity, non-joinder of parties, lack of procedural capacity, no right of action, no cause of action, and prescription. On 3 July 2003, the trial court granted the exception of prescription (rendering moot the remaining exceptions) and denied Reveley’s request for sanctions. The trial court’s reasons for judgment state:

This suit seeks the recovery of money belonging to the plaintiffs donor, which was lent to and/or received by defendant. Actions for the recovery of money lent are subject to three-year prescriptive periods. C.C. Art. 3494. As suit was not filed timely it will be dismissed.

On appeal and in a single assignment of error, Eckhardt argues that the trial court erred in granting the exception of prescription. Specifically, Eckhardt | acontends that the trial court was correct in treating the advances made by or on behalf of Eckhardt as having a three-year prescriptive period, but it failed to take into consideration that prescription was suspended between the spouses during the marriage pursuant to La. C.C. art. 3469. In opposition, Reveley submits that the trial court considered article 3469, but that it also considered La. R.S. 9:291.

La. R.S. 9:291 provides:

Spouses may not sue each other except for causes of action pertaining to contracts or arising out of the provisions of Book III, Title VI of the Civil Code ; for restitution of separate property; for divorce or declaration of nullity of the marriage; and for causes of action pertaining to spousal support or the support or custody of a child while the spouses are living separate and apart.

Reveley argues that because La. R.S. 9:291 allowed Eckhardt to sue for the restitution of his separate property during the marriage, prescription was not suspended.

The record on appeal establishes that Eckhardt seeks restitution of his separate property allegedly loaned to Reveley both prior to and during their marriage. La. R.S. 9:291 does not suspend a cause of action between spouses separate in property during the existence of the marriage for such claims. Courts have also held that one spouse may sue another spouse even during the marriage for claims regarding separate property. See Hernandez v. Hernandez, 99-1914 (La.App. 3 Cir. 5/3/00), 763 So.2d 36; Cloud v. Cloud, 425 So.2d 329 (La.App. 3d Cir.1982); Butcher v. Butcher, 83 So.2d 556 (La.App. 2d Cir. 1955); Airhart v. Airhart, 153 So.2d 140 (La.App. 3d Cir.1963).

^Prescription cannot run against a cause of action that has not accrued or while that cause of action cannot be exercised. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). In the case at bar, Eckhardt was not prevented from suing upon his cause of action during the marriage by virtue of La. R.S. 9:291. Additionally, we note that the monies directed by Eckhardt to the two corporations created claims by Eckhardt against the corporations, not claims against any shareholder, director, or officer of the corporations, regardless of whether monies flowed from the corporations to the shareholder, director, or officer; therefore, during the marriage, nothing prevented Eckhardt from filing suit against the corporations, entities that are separate and distinct from their shareholders, directors, and officers, for monies loaned. See La. C.C. art. 24. Additionally, we note that argument is made in Reve-ley’s brief that the reason that Eckhardt supplemented and amended his petition was to help establish that his claim for the $8,000.00 noted above was made by the succession of Shirley Eckhardt; certainly, the succession representative was not prohibited from filing suit against Reveley while Eckhardt and Reveley were husband and wife.

We conclude that prescription on the restitution claim continued to accrue during the marriage and was not suspended pursuant to La. C.C. art. 3469. Accordingly, we find no error by the trial court in granting the exception of prescription.

Reveley asks this court to award sanctions, fees, and costs against Eck-hardt. A request for sanctions or attorney’s fees can be considered only if the party |sanswers the appeal or files an appeal. La. C.C.P. art. 2133; Kops v. Lee, 03-1407 (La.App. 4 Cir. 3/31/04), 871 So.2d 1187. In the present case, Reveley did not appeal or answer the appeal. Her request for sanctions is, accordingly, not considered.

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

AFFIRMED.

      . Livia Eckhardt is the Eckhardt’s daughter by a previous marriage.

      . We note that these donations were not made in proper form, and that post-initiation of the present suit, Eckhardt sought to correct the defect by executing a notarial act to ratify the transfer.

      . Circa 1992.

      . La. C.C. art. 2325, et seq., relative to matrimonial regime contracts.

      . At the trial of the exception, only two documents were formally introduced in evidence. We note, however, that the trial court, without objection from any party, indicated on the record that it was going to decide the case on the pleadings, i.e. on the entire record before it. We accordingly, will consider those pleadings relied upon by the trial court in reaching our decision as being in fact accepted into evidence.


author: | MOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Michael W. FRANCO v. George P. FRANCO, Jr.
    No. 2004-CM-0967.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 28, 2004.
    Order Denying Rehearing Sept. 23, 2004.

      Robert G. Harvey, Sr., Jonathan M. Walsh, New Orleans, LA, for Appellant.
    Theon A. Wilson, Law Offices of Theon A. Wilson, New Orleans, LA, for Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   | MOAN BERNARD ARMSTRONG, Chief Judge.

The defendant-appellee, George P. Franco, Jr., filed a Motion to dismiss Sus-pensive Appeal for Failure to Post Bond on June 9, 2004 concerning a judgment of the First City Court for the City of New Orleans in the sum of $20,200.00 rendered in his favor and against the plaintiff-appellant, Michael W. Franco, on May 14, 2004. This money judgment in favor of the defendant-appellee dismissed the plaintiffs main demand and the $20,200.00 award was made in response to the appellee’s reconventional demand, but the nature of the underlying dispute is not relevant to the resolution of the purely procedural issues now before this Court. For the reasons that follow, the defendant-appellee’s motion to dismiss suspensive appeal is denied, but the plaintiff-appellant’s appeal is hereby converted to a devolutive appeal.

On May 17, 2004, the plaintiff-appellant, Michael W. Franco, filed a Motion for Sus-pensive Appeal along with the form of a proposed order that would grant the sus-pensive appeal and that also requested the trial court to fix the amount of the suspen-sive appeal bond.

| {.On May 24, 2004 the trial court signed the order of appeal and fixed the bond at $30,300.00 As noted above, the defendant-appellee filed his motion to dismiss the appeal on June 9, 2004. The next day, June 10, 2004, the plaintiff filed a document in affidavit form styled “Personal Surety” in which he bound himself under oath “for payment of any validly rendered judgment upon demand and further waives all notice thereof.”

The defendant argues that the plaintiff has failed to post his bond in a timely manner and that the personal surety bond does not qualify as an appeal bond.

The plaintiff counters that while the Order for Suspensive Appeal was entered into the minutes on May 25, 2004, it was never mailed to the plaintiff. The defendant does not dispute this fact. Accordingly, the first notice that the plaintiff had of the fixing of the appeal bond was when he was served with the defendant’s motion to dismiss. The defendant does not dispute this either. The plaintiff argues that under LSA-C.C.P. art. 5002 A he has ten days from the time he is served with a copy of the trial court’s signed order fixing the amount of his appeal bond. In effect, what the plaintiff argues is that the time for taking his appeal is interrupted by the filing of the motion to fix the amount of the bond until such time as he is served with notice of the fixing of the amount. However, LSA-C.C.P. art. 5002 A says:

An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment when such notice is necessary. [Emphasis added.]

IsLSA-C.C.P. art. 5002 A makes no reference to service of a motion to fix the amount of the bond. It refers only to service of the notice of judgment. The plaintiff does not contend that his appeal would be timely under a literal reading of LSA-C.C.P. art. 5002 A.

LSA-C.C.P. art. 5001 C regarding appeals from city and parish courts provides:

Appeal shall be on the record and shall be taken in the same manner as an appeal from the district court.

In this manner, LSA-C.C.P. art. 5001 C incorporates by reference LSA-C.C.P. art. 2124 which provides in pertinent part:

A. No security is required for a devolutive appeal.[]
B. The security to be furnished for a suspensive appeal is determined in accordance with the following rules:
(1) When the judgment is for a sum of money, the amount of the security shall be equal to the amount of the judgment [], including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs.
(a) However, in all cases, except litigation related to the Tobacco Master Settlement Agreement, or any litigation where the state is a judgment creditor, where the amount of the judgment exceeds one hundred fifty million dollars, the trial court, upon motion and after a hearing, may, in the exercise of its broad discretion, fix the security in an amount sufficient to protect the rights of the judgment creditor while at the same time preserving the favored status of appeals in Louisiana.
(b) The time for taking the suspen-sive appeal under Article 2123 shall be interrupted for judgments pursuant to 14Article 2124(B)(1)(a) [Tobacco Master Settlement agreement] until the trial court fixes the amount of the security and commences anew on the date the security is fixed.
(2) When the judgment distributes a fund in custodia legis, only security sufficient to secure the payment of costs is required.
(8) In all other cases, the security shall be fixed by the trial court [] at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delay resulting from the suspension of the execution.
C. Where the party seeking to appeal from a judgment for a sum of money is aggrieved by the amount of the security fixed by the trial court, the party so aggrieved may seek supervisory writs to review the appropriateness of the determination of the trial court in fixing the security. The application for supervisory writ shall be heard by the court of appeal on a priority basis. The time for taking a suspensive appeal under Article 2128 shall be interrupted until the appellate court acts on the supervisory writs to review the determination of the trial court in fixing the security and commences anew on the date the action is taken.
D. For good cause shown, the trial judge in the case of the appeal of a money judgment to be secured by a surety bond [] may fix the amount of the security at an amount not to exceed one hundred fifty percent of the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of the costs.
E. A suspensive appeal bond shall provide, in substance, that it is furnished as security that the appellant will prosecute his appeal, that any judgment against him will be paid or satisfied from the proceeds of the sale of his property, or that otherwise the surety is liable for the amount of the judgment.

LSA-C.C.P. art. 2124 B(l) indicates that the fixing of the amount of the appeal bond is automatically fixed at the amount of the judgment, plus interest, in Leases of money judgments, such as is involved in the instant case. Hence, LSA-C.C.P. art. 2124 B(l) does not contemplate the filing of a motion by the appellant to fix the amount of the bond as was done by the appellant in the instant case as the amount of the bond is fixed by statute at the amount of the judgment plus interest.

LSA-C.C.P. art. 2121 D allows the trial court to increase the amount of the appeal bond where a money judgment is involved up to “one hundred fifty of the amount of the judgment,” plus interest, but only for “good cause shown” and only in those instances where a surety bond is to be furnished. This provision contemplates the filing of a motion by the appellee to increase the amount of the bond above the amount of the judgment as provided in LSA-C.C.P. art. 2124 B(l) as only the appellee would present an argument that there was good cause to increase the amount of security under this provision above the amount provided by LSA-C.C.P. art. 2124 B(l). Therefore, LSA-C.C.P. art. 2124 B(l) cannot be said to contemplate the interruption of the time in which an appeal bond is to be filed by the filing of a motion by the appellant to increase the amount of the bond. In other words, this provision was not intended to interrupt the running of the appeal time because the party appealing from an adverse money judgment files a motion to fix the amount of the bond.

There are only two remotely relevant codal provisions that literally refer to the interruption of the time for taking the suspensive appeal until the amount of the bond is fixed, and both refer to appeals from money judgments such as is involved in the instant case. The first is to be found in LSA-C.C.P. art. 2124 B(l)(b), but it is limited in its application to cases where “the amount of the judgment exceeds one hundred fifty million dollars ...” The second is to be found in LSA-C.C.P. art. 2124 C which provides for the interruption of prescription while awaiting a | fidecision on supervisory writs taken by a party seeking to appeal from a money judgment who feels “aggrieved by the amount of the security fixed by the trial court ...” Neither of these provisions regarding the interruption of the time for taking an appeal apply to the instant case.

Thus, nothing in LSA-C.C.P. art. 2124 literally provides for the interruption of the time for taking an appeal under the facts of the instant case. Therefore, if we are to find authority to support the appellant’s position herein we must either infer that it exists by implication in paragraphs of LSA-C.C.P. art. 2124 other than “B(l)” or “C” or look for such authority elsewhere in the Code of Civil Procedure or in the jurisprudence.

The appellant cites the case of Blue, Williams & Buckley v. Brian Investments, Ltd., 96-1451 (La.App. 1 Cir. 6/20/97), 706 So.2d 999, in support of its contention that any failure to post the appeal bond on a timely basis is imputable to the trial court because, according to the plaintiffs opposition to the Motion to Dismiss:

Here, Appellant received his Motion for Suspensive Appeal, requesting therein that the trial court fix the amount of his suspensive appeal bond. No opposition was filed and Appellant, pursuant to Articles 1913 and 2121 of the Code of Civil Procedure, was entitled to notice of signing of judgment. Thus, because the trial court below waited until May 25, 2004 to enter its judgment on the minutes and never mailed a copy of its judgment to Appellant, the failure to timely post the bond is imputable to the trial court. See, Blue, Williams, 706 so.2d[So.2d] at 1002. Immediately upon learning that bond had been fixed, Appellant posted the bond. Appellee’s Motion to Dismiss must be denied. [Emphasis added.]

However, we note that the Blue, Williams case does not involve a money judgment. The appellant in Blue, Williams was appealing a summary judgment |7vacating a previous default judgment. As previously noted, bonds for money judgments are fixed by statute whereas bonds in other cases “shall be fixed by the trial court ...” LSA-C.C.P. art. 2124 B(3). The appellant in Blue, Williams could not post a bond until such time as the amount of the bond was fixed by the trial court. However, in the instant case there was no need for the appellant to apply to the trial court for an order fixing the amount of the bond.

While the Blue, Williams case is inappo-site regarding the timely filing of the bond in the instant case, it does set forth certain general principles that are of general application: ■

In a suspensive appeal the appellant must file both the petition for appeal and furnish the security within the delay allowed in La.C.C.P. art. 2123. [Emphasis added.] When the appellant fails to timely furnish the security required for a suspensive appeal, the right vests in the appellee to obtain dismissal of the suspensive appeal and to secure the right to execute on the judgment. However, the suspensive appeal is not invalid merely because the appellant does not furnish security until after the delay has elapsed. The appellant’s tardiness in furnishing security merely constitutes an irregularity or defect which, if imputable to the appellant, may form a basis for the appellee to move for dismissal of the suspensive appeal under La.C.C.P. art. 2161. Wright v. Jefferson Roofing, Inc., 93-1217, p. 4 (La.1/14/94); 630 So.2d 773, 775.

Id., p. 5, 706 So.2d at 1002. The opinion that the requirement that both the petition for the appeal and the security be filed within the delay allowed by LSA-C.C.P. art. 2123 is not unique to Blue, Williams. See Wright v. Jefferson Roofing, Inc., 93-1217, (La.1/14/94), 630 So.2d 773, 775 and Parish of Jefferson v. Davis, 97-1200, 97-1201, p. 7 (La.App. 5 Cir. 6/30/98), 716 So.2d 428, 432.

| sIn Wright, supra, the Supreme Court immediately after stating that both the petition for appeal and the security must be furnished within the delay provided by LSA-C.C.P. art. 2123, then goes on to say that:

When the appellant fails to furnish timely the security required for a suspensive appeal, the right vests in the appellee to obtain dismissal of the suspensive appeal and to secure thereby the right to execute on the judgment.

Id.

Other language of general application to be found in Blue, Williams describes when exception should be made to the time limits provided for appealing and the posting of the security therefore:

However, when the motion for appeal has been made timely within the delay period allowed to perfect an appeal and has been continuously pressed, the appeal as ultimately perfected has been held valid despite the tardy filing of the bond, where the failure to perfect it within the delay period results from the erroneous refusal of the trial court to sign an appeal order timely after it has been presented to it, or from the trial court’s placing unreasonable conditions upon the exercise of the right to appeal. [Emphasis added.] The fault in the tardy filing is then regarded as imputable to the court system rather than to the appellant. La. C.C.P. art. 2161; Graves v. Kaiser Aluminum & Chemical Corp., 319 So.2d 323, 325 (La.1975) (where the foregoing was applied to a case involving a devolu-tive appeal), when such an appeal required a bond.

Id. Thus Blue, Williams indicates that a delay may be warranted in those instances where (1) the trial court erroneously refused “to sign an appeal order timely after it has been presented to it”, or (2) where the delay resulted “from the trial court’s placing unreasonable conditions upon the exercise of the right of appeal.” Plaintiff has not demonstrated how the facts of this case fall under either of the exceptions to the time requirements for perfecting an appeal contemplated by Blue, Williams.

|aThe appellant asserts that the appeal delays provided by LSA-C.C.P. art. 5002 have not begun to run as he “has yet to be served with notice of the granting of his Motion for Suspensive Appeal and has yet to be served with the bond amount ...” Among the authorities upon which appellant relies in support of this assertion is that portion of LSA-C.C.P. art. 2121 directing the clerk of court to “mail a notice of appeal to counsel of record of all other [] parties ...” We note that by. employing the “other” the Code clearly expresses the intent that the notice requirement does not apply to the party who has requested the order for appeal.

Furthermore, we find it significant that LSA-C.C.P. art. 2121 requires that the order of appeal “shall provide the amount of security to be furnished, when the law requires the determination thereof by the court.” In the instant case, as this was a money judgment as we have already noted earlier, there is no requirement that the amount of security be determined by the court. Therefore, the appellant cannot extend the time in which he may appeal by filing a motion to fix the amount of the bond that is already fixed by law under LSA-C.C.P. art. 2124 B(l).

Hunter v. Honore, 217 So.2d 475 (La.App. 1 Cir.1968) is distinguishable because it involved a devolutive appeal under the pre-1978 version of LSA-C.C.P. art. 2124 which required that security be furnished for a devolutive appeal “fixed by the trial court ...” Since 1978 no security has been required for a devolutive appeal. However, we must reiterate that in the instant case the amount of the bond is fixed by law under LSA-C.C.P. art. 2124 B(l). Moreover, the Hunter case shows that the principle upon which the court relied was that the appellant failed “to show|inany fault on the part of the Clerk of Court ...” Id., 217 So.2d at 477. This is analogous to the two excuses for untimely filing recognized by Blue, Williams, both of which can really be subsumed under the single category. However, as noted above, the LSA-C.C.P. art. 2121 requirement for notice does not apply to the party requesting the order of appeal.

Additionally, we find that, as a matter of law, an appellant may not act as his own surety in meeting the requirement for a suspensive appeal bond, a defect apparent from the face of the bond which, in the words of this Court in Riley v. Stallworth, 97-0075, p. 2 (La.App. 4 Cir. 1/14/97), 687 So.2d 573, 575, under analogous facts “constitutes a fundamental failure to post bond.” As this Court recognized in Riley such a failure to post bond does not raise any question of the sufficiency of the bond. Therefore, no contradictory hearing is required in the trial court to test the , sufficiency of the bond under LSA-C.C.P. art. 5123:

Where LSAC.C.P. art. 5123. refers to “sufficiency” it was not intended to cover situations in which it is uncontested or apparent from the face of the record that the required bond was not posted in whole or in part. “Sufficiency” was intended to refer more to such situations as those in which the value of the security furnished is disputed. Here there is no, dispute that applicant did not furnish the amount required.

For this reason, the language in A & J, Inc. v. Ackel Real Estate, L.L.C., 02-259, p. 10 (La.App. 5 Cir. 10/16/02), 831 So.2d 311, 317, requiring a contradictory hearing to contest the bond amount in the trial court does not apply to the instant case. In Ackel the appellant assigned as error the granting by the trial court of an increase in the bond amount. Ackel would have been relevant had the appellant in the instant case attempted to complain for the first time in this Court that the trial court had improperly fixed the amount of his bond in excess of the amount called Infer in LSA-C.C.P. art. 2124 B(l). Under such a hypothet the facts in Ackel would be analogous to those of this case on this issue. However, that is not the issue before this Court.

“Suretyship” is defined in LSA-C.C. art. 3035:

Suretyship is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.

The document furnished as security in the instant case by the appellant entitled “Personal Surety” does not comply with the LSA-C.C. art. 3035 definition of suretyship because the appellant has bound himself to pay his own obligation, not that of “another.” This provides the appellee with a lesser claim against the appellant than he already possessed in the form of his money judgment and, therefore, constitutes no security at all to the appellee. Thus, it gives the appellee no additional security and represents nothing more than a claim against the appellant for the amount already awarded to him by the trial court.

Moreover, we infer from our reading of LSA-C.C.P. arts. 5121-5127 in that section of the Code concerning “Bonds in Judicial Proceedings” that the signature of the party required to post security is not sufficient in itself to constitute security. LSA-C.C.P. art. 5121 refers to cash bonds, 5121.1 refers to bonds secured by immovable property, and 5122 refers to surety bonds and, in fact, is entitled, “Oath of surety and principal on bond” which brings us back to the basic definition of surety-ship, i.e., that it is the guarantee of the obligation of another. We infer that the failure to provide for a party to act as his own guarantor is intentional as such a right to collect from a party is already guaranteed by law and the additional personal guarantee would add nothing, and is, in fact, far less than the judicial mortgage afforded by law to recorded judgments. Thus, there is no specific | ^prohibition against one acting as one’s own surety on a judicial bond because it is too obvious to need stating.

Our conclusion that the procedure articles concerning judicial bonds do not contemplate allowing an appellant to act as his own surety is reinforced by LSA-C.C.P. art. 5185 B which does not allow a party proceeding in forma pauperis to have “a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefore.” [Emphasis added.] Thus, from this we infer that the law contemplates the furnishing of something of greater substance than a mere right to collect from a judgment debtor which the judgment creditor already possesses by law.

The purpose of the requirement of security for a suspensive appeal is to protect the judgment creditor against the insolvency of the judgment debtor during the course of the appeal. Wright v. Jefferson Roofing, Inc., 93-1217, (La.1/14/94), 630 So.2d 773, 775. The undertaking of the judgment debtor to act as surety on his own debt does nothing to protect the judgment creditor against the insolvency of the judgment debtor.

Moreover, we note that the purported surety bond is facially inadequate for the additional reason that it recites that it is security for the amount of the judgment after the time the trial court had already fixed the amount of the bond at a greater amount.

113LSA-C.C.P. art. 5002 requires that the appeal from a judgment of the First City Court “may be taken only within ten days from the date of the judgment or from service of notice of judgment, when such a notice is necessary.” As the appellant filed his Motion for Suspensive Appeal on May 17, 2004, that is the very latest date from which the appeal time can be calculated (in other words, once he has filed his motion for appeal he thereby waives any objections he might have as to notice of judgment), meaning that his “Personal Surety” filed over twenty days later on June 9, 2004, was filed after more than twice the ten days permitted by the code had elapsed.

Although, we do not subscribe to the appellant’s arguments concerning the timeliness of his posting of the bond, we do subscribe to his argument that in consequence his appeal should not be dismissed, but should instead be converted into a devolutive appeal. Touzet v. V.S.M. Seafood Services, Inc., 96-0225, p. 2 (La.App. 4 Cir. 3/27/96), 672 So.2d 1011, 1012. In ordinary proceedings, a failure to pay a suspensive appeal bond is not generally considered grounds for dismissal because the appeal is simply converted to a devolu-tive appeal when the appeal bond is not timely paid. Lakewind East Apartments v. Poree’, 629 So.2d 422, 424 (La.App. 4 Cir.1993). We do this because appeals are favored and also because since 1978 LSA-C.C.P. art. 2124 A has eliminated the requirement that any security be furnished in connection with devolutive appeals.

Pan-American Bank & Trust Company v. Ransom, 150 La. 142, 90 So. 548 (1922), does not prevent us from converting the appellant’s suspensive appeal to a devolu-tive appeal as it was decided under the old law requiring that security be posted in connection with a devolutive appeal and is, therefore, inapposite.

114Accordingly, appellee’s motion to dismiss is denied, but appellant’s suspensive appeal is converted to a devolutive appeal.

Our decision in this case is not premature under the language of LSA-C.C.P. art. 2161 requiring that the motion to dismiss “be filed within three days ... of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.” This merely established the cut-off for filing a motion to dismiss. It does not say that one filed earlier may not be considered. Wright v. Jefferson Roofing, Inc., 93-1217 (La.1/14/94),. 630 So.2d 773, cited by the appellant makes no mention of the premature filing of a motion to dismiss an appeal either in the holding or in dicta. To the contrary, the Supreme Court in Wright ruled that:

When the appellant fails to furnish timely the security required for a suspensive appeal, the right vests in the appellee to obtain dismissal of the suspensive appeal and to secure thereby the right to execute on the judgment.

Id., 630 So.2d at 775. Thus, a motion to dismiss would logically be timely when the right vests in the appellee to obtain the dismissal, which according to the language just quoted from the Supreme Court decision in Wright occurs as soon as, the delays for taking the appeal and furnishing security provided for in LSA-C.C.P. arts. 2123 and 5002 have elapsed. There was no finding of prematurity in Wright. Instead, the Court in Wright found that after the three-day period set forth in LSA-C.C.P. art. 2161 has elapsed, it is too late to challenge the appeal bond:

Here, the surety’s filing of the supplemental bond was untimely, giving rise to plaintiffs’ right to obtain dismissal of the suspensive appeal. But when plaintiffs did not exercise this right within Article 2161’s three-day period, the appeal was no longer subject to dismissal, and the surety remained bound on supplemental bond.

Id., 630 So.2d at 776.

|1BOur reading of Wright merely serves to reinforce this Court’s action in this case.

Finally, we note that there is no reference in Hale Farms v. American Cyanam- id, 580 So.2d 684, to LSA-C.C.P. art. 2161. Hale Farms does not support the plaintiffs contention that the appellee’s motion to dismiss is premature in this case. If we were to adopt the plaintiffs prematurity argument, it would effectively give the plaintiff the benefit of a suspensive appeal for an extended period of time based on a bond that is no bond at all.

For the foregoing reasons, the motion to dismiss appeal of the defendant-appellee, George P. Franco, Jr., is denied, but the appeal of the plaintiff-appellant is hereby converted into a devolutive appeal.

DENIED.

hORDER

IT IS HEREBY ORDERED THAT the application for rehearing of the plain-tifl/appellant, Michael W. Franco, be denied.

IT IS FURTHER ORDERED THAT the exception of prescription filed by the plaintiff/appellant in connection with the aforementioned application for rehearing be referred for consideration with the appeal on the merits at which time the parties may present oral argument on the exception if, and only if, oral argument is scheduled for the appeal on the merits.

IT IS FURTHER ORDERED THAT the defendani/appellee has 30 days from the date of this order in which to file an opposition to the exception.

/s/ Joan Bernard Armstrong Chief Judge, Court of Appeals of Louisiana

/s/ Patricia Rivet Murray Judge, Court of Appeals of Louisiana

/s/ Michael E. Kirby Judge, Court of Appeals of Louisiana

      . Neither party alludes to how the trial judge arrived at this figure or what her authority was for doing so. However, neither party raises this as an issue in this case.

      . Emphasis added.

      . Emphasis added.

      . Emphasis added.

      . Emphasis added.

      . While it appears that the $30,300.00 bond amount fixed by the trial court may exceed the amount called for in LSA-C.C.P. art. 2124 B(l) based on the judgment amount of $20,200.00, the appellant in this case has not asked for supervisory writs to this Court asking us to review the appropriateness of the bond amount pursuant to LSA-C.C.P. art. 2124 C which would have interrupted the time for taking the appeal.

      . Emphasis added.

      . Emphasis added.

      . Cited by the appellant on another issue discussed earlier in this opinion.


author: JjMOORE, J. hBROWN, C.J.,

text:
    Walter T. GRAVES, Jr., Plaintiff-Appellant v. RIVERWOOD INTERNATIONAL CORP., et al., Defendant-Appellee.
    No. 38,842-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.

      Brian P. Blackwell, Jody Anderman, Baton Rouge, for Appellants, Gertrude Graves, et al.
    F. Paul Leger, Thomas Bergstedt, Lake Charles, for Appellee, Olin Corporation.
    Before BROWN, CARAWAY and MOORE, JJ.
   JjMOORE, J.

The plaintiffs, the heirs of Walter T. Graves Jr., appeal a partial summary judgment that dismissed all third-party beneficiary claims against Olin Corporation (“Olin”), in their suit for wrongful death and survival damages arising from a fatal case of mesothelioma. For the reasons expressed, we affirm in part, reverse in part, and remand.

Factual and Procedural Background

Graves worked at the West Monroe paper mill from 1943 to 1985. In early 2000, he was diagnosed with malignant mesothe-lioma, a disease commonly resulting from exposure to and ingestion of asbestos fibers. In April 2000 Graves filed this suit against Riverwood International Corp., the then-current name of the mill, and 13 other companies that allegedly made or supplied asbestos products used in the mill over the years. Graves’s claims were based on negligence and strict liability. In June 2000, Graves died; his widow and two adult children filed a first supplemental and amending petition substituting themselves as parties plaintiff, and naming Olin as the owner of the mill.

Olin initially filed a motion for summary judgment claiming the exclusive remedy of workers’ compensation, La. R.S. 23:1031.1. The district court granted this motion in June 2001, dismissing all negligence and intentional tort claims, but giving the plaintiffs leave to amend the petition to allege contract claims.

The plaintiffs’ “second supplement and amendment to original petition,” filed June 29, 2001, added 13 subparagraphs alleging Olin’s contractual liability. They alleged that Olin, or its corporate predecessors, | ¡¡.owned and operated the West Monroe mill from 1925 until January 1, 1967. Effective that date, Olin transferred ownership and operation of the mill to a wholly-owned subsidiary called Olinkraft Inc. (“Olinkraft”). According to the plaintiffs, Olinkraft then contracted with Olin to provide industrial hygiene services to Olin-kraft, and that Olinkraft’s direct employees, including Graves, were third-party beneficiaries of that contract. The plaintiffs further alleged (with emphasis added):

¶ 27-H: On information and belief, Olin Mathieson [a corporate predecessor] and Olin were contractually obligated to perform and/or actually undertook to perform the following duties and responsibilities: * * * (c) To see that Walter T. Graves Jr. and his co-workers used safe and sound principles and practices in their work; * * * (h) To make certain that Walter T. Graves Jr. and his co-employees were provided a safe working environment and/or a safe place to work. * * *
¶ 27-J: Olinkraft’s contract with Olin required Olin to perform the duties and responsibilities set forth in the preceding paragraphs and Olin actually undertook, on an operational basis, to perform said duties and fulfill said responsibilities; however, Olin negligently failed to carry out those undertakings and assumed duties in the manner more particularly described in the following paragraph.

In response, Olin filed the instant motion for summary judgment, asserting that Olin “has not located a contract between Olin and Olinkraft regarding industrial hygiene services which plaintiff alleges to be a third party beneficiary to.” It conceded there was a service contract dated May 31, 1974, but this obligated Olin only to assist in operating the facility, not to confer any benefits on individual Olinkraft employees. In support of its motion, Olin attached portions of the depositions of Ms. Doreatha 1¡¡Brueggemann, Olin’s chief litigation paralegal, and Dr. Henry J. Muran-ko, Olin’s industrial hygienist from 1971-'81. Dr. Muranko testified he was unaware of any “formal arrangement” for Olin to provide industrial hygiene services to Olinkraft; although Olin officials periodically visited the plant and wrote safety reports, Olin had no authority to implement any changes.

By supplemental memorandum, Olin argued that a stipulation pour autrui is never presumed. La. C.C. art. 1985; Stadtlander v. Ryan’s Family Steakhouses Inc., 34,384 (La.App. 2 Cir. 4/4/01), 794 So.2d 881, unit denied, 2001-1327 (La.6/22/01), 794 So.2d 790. Olin also cited State v. Joint Comm’n on Accreditation of Hospitals, 470 So.2d 169 (La.App. 2 Cir. 1985), in which this court declined to find that kidney patients were third-party beneficiaries of a contract whereby a state commission provided a “survey team” to inspect and report on dialysis machines at a state-run hospital. Olin contended that Graves’s assertion of third-party beneficiary status had no more support than that of the kidney patients in State v. Joint Comm’n, supra.

The plaintiffs opposed the motion, quoting portions of Ms. Brueggemann’s deposition stating that (1) Olin employees went to the West Monroe facility after 1967 to perform environmental and industrial hygiene services; (2) the purpose of these visits was to apprise plant management of potential workplace hazards; and (3) Olin never provided the mill with any documents or warnings concerning the use of asbestos. They also quoted reports from Dr. Leonard Krause, a member of Olin’s industrial hygiene department from the late 1960s to the mid-'70s, noting that Olinkraft’s |4“[m]anagement has an obligation to treat workers’ health and workers’ exposures with prudence,” and that “there are several major occupational hazards which are of paramount concern and constitute a potential hazard to employees.” The plaintiffs argued that “based on Olin’s conduct, there is no doubt.that Olin assumed the duty to protect the employees of Olinkraft, including the plaintiffs in this case, from workplace hazards.”

By “ruling and judgment” dated August 29, 2003, the district court granted summary judgment on the third-party beneficiary issue and ruled on other pending motions. By this time, the plaintiffs had settled with or voluntarily dismissed all defendants except Olin and one insulation maker. The matter proceeded to trial against these two defendants on September 15, 2003; however, after the jury was selected, which had taken over two days, the plaintiffs dismissed claims against the insulation maker, which had just filed for bankruptcy.

On September 18, moments into the plaintiffs’ opening statement, Olin objected to any argument that it had assumed a duty to protect Olinkraft’s employees, including Graves. The rest of the day was spent in argument, both on and off the record. Although it is not clear from the transcript, the parties concede in brief that the subject of the argument was whether the plaintiffs had sufficiently alleged an assumption of duty by Olin to provide industrial hygiene services for the benefit of Olinkraft’s employees, and that the court ruled in camera that they had not.

The next morning, the court dismissed the jury and issued an order stating that its “order of August 29, 2003, foreclosed all claims of plaintiffs, |Kincluding those for wrongful death, for any period of time after December 31, 1966.” The court certified this as a final ruling and the plaintiffs took the instant appeal.

Applicable Law

Douisiana law utilizes' a system of fact pleading; no technical forms of pleading are required. La. C.C.P. art. '854; Ramey v. DeCaire, 2003-1299 (La.3/19/04), 869 So.2d 114; Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706. The plaintiff need not plead a theory of the case, but only facts that would support recovery. Ramey v. DeCaire, supra. Moreover, every pleading must be construed so as to do substantial justice. La. C.C.P. art. 865; Metro Riverboat Assocs. Inc. v. Louisiana Gaming Control Bd., 2001-0185 (La.10/16/01), 797 So.2d 656; Williams v. State, 34,691 (La.App. 2 Cir. 5/9/01), 786 So.2d 927, 155 Ed. L. Rep. 969.

A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191; Smith v. AAA Travel Agency, 37,728 (La.App. 2 Cir. 10/29/03), 859 So.2d 286, writs denied, 2003-3248, 2003-3329 (La.2/6/04), 865 So.2d 731, 735. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1); Wiley v. Sanders, 34,923 (La.App. 2 Cir. 8/22/01), 796 So.2d 51, writ denied, 2001-2661 (La.1/11/02), 807 So.2d 235. A summary judgment may be rendered disposi-tive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case. La. C.C.P. art. 966 E.

Appellate review of a summary judgment is de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Wadsworth v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764. The court of appeal may grant a partial summary judgment. Agricredit Accept. Corp. v. Singleton, 33,661 (La.App. 2 Cir. 8/23/00), 767 So.2d 137.

Under certain circumstances, a parent corporation may affirmatively undertake the duty of safety owed by its subsidiary, with the result that the parent is liable for failing to assure the safety of the subsidiary’s employees. Bujol v. Entergy Services Inc., 2003-0492 (La.5/25/04), — So.2d -, 2004 WL 1157413, and citations therein.

Discussion

By their first assignment of error, the Graveses urge the district court erred in disregarding Louisiana’s liberal rule of fact pleading in considering Olin’s motion for summary judgment. They contend that their second amended petition “clearly and unequivocally alleges facts sufficient to permit a judgment to be rendered against Olin for its failure to use reasonable care in its undertaking to provide industrial hygiene services to Olinkraft and its employees resulting in damages to Mr. Graves and his 17family.” This assignment has merit.

Under Louisiana’s fact pleading system, the plaintiff must allege facts that would support recovery. Whether the allegations are sufficient is judged by a plain reading of the petition. Ramey v. De-Caire, supra; Fitzgerald v. Tucker, supra. As quoted above, the second amended peti tion alleges that Olin was “contractually obligated to perform and/or actually undertook to perform” certain duties “to see that Walter T. Graves Jr. and his coworkers used safe and sound principles and practices in their work” and that they “were provided a safe working environment and/or a safe place to work”; and that “Olin negligently failed to carry out those undertakings and assumed duties.” These allegations clearly charge that Olin undertook the duty of safety owed by Olin-kraft and thereby assumed a duty to provide a safe working environment. The district court was plainly wrong to find that the plaintiffs never alleged an assumption of duty.

By their second assignment the Graveses urge that the court erred in granting summary judgment. They contend there is sufficient evidence to proceed to trial on the issues of whether Olin (1) undertook to render services to Olinkraft, which it should have recognized as necessary for the protection of Mr. Graves; (2) failed to exercise reasonable care in the performance of that undertaking; and (3) undertook a duty owed by Olinkraft to Mr. Graves. They further contend that when a duty to protect others against a particular harm has been assumed, liability may be created by negligent breach of that duty. Harris v. Pizza Hut of La., 455 So.2d 1364 (La.1984). Specifically, the Graveses contend that a parent company | Rmay assume the duty by establishing mandatory safety requirements for the subsidiary and breach that duty by not insuring compliance with those mandatory safety requirements. In support, they cite the appellate court’s opinion in Bujol v. Entergy Services Inc., 2000-1621 (La.App. 1 Cir. 8/14/02), 833 So.2d 947, rev’d, 2003-0492 (La.5/25/04), — So.2d -, 2004 WL 1157413.

Olin responds that no contract between itself and Olinkraft ever included any stipulation pour autrui in favor of Graves, and that such a stipulation can never be presumed. It argues that the most apposite authority is State v. Joint Comm’n, supra, in which this court rejected the argument that the committee’s “primary purpose was to assure patients the optimal benefits that medical science has to offer.” Olin does not address the issue of assumption of duty, which the first circuit found to exist in Bujol, but the supreme court later reversed on the facts presented. Instead, Olin maintains that the plaintiffs did not sufficiently plead the issue, so it was not before the court.

The Graveses alleged facts that would support recovery under two different theories. First, they alleged a written contract whereby Olin would provide industrial hygiene services to its subsidiary, Olinkraft, for the benefit of the latter’s employees. The district court correctly found, despite the voluminous summary judgment evidence, no proof that such a contract with such a stipulation existed. A contract obligating Olin to perform industrial hygiene services for Olinkraft could produce benefits for third parties such as Graves “only when provided by law,” i.e., when the parties clearly stipulated such a benefit. La. C.C. art. 1985; International Marine Terminals Partnership v. Port Ship Serv., 2003-0629 (La.App. 4 Cir. 12/30/03), 865 So.2d 199. In the absence of any written contract for industrial hygiene services, there is obviously no clear expression of a stipulation pour autrui in favor of Graves. The summary judgment will be affirmed insofar as it dismissed the Graveses’ contract claim.

Second, ,the Graveses alleged that even without a contract, Olin undertook certain duties, particularly to make certain that Olinkraft’s employees had a safe working environment or safe place to work, and negligently failed to carry out those undertakings and assumed duties, to the detriment of Mr. Graves. In support, the Graveses cite attachments to Dr. Mu-ranko’s deposition, showing that between 1969 and 1976, Olin was aware of the potential danger of asbestos dust, received OSHA regulations concerning its handling, and recommended warnings and safety procedures for Olin’s own facilities in Shreveport and Lake Charles. The Graveses also cite Ms. Brueggemann’s testimony that Olin performed environmental and industrial hygiene services at the West Monroe mill after 1967, but despite its knowledge-, of asbestos hazards, it never tested that facility for asbestos or advised Olinkraft of the potential danger. These allegations may create a genuine issue as to the Graveses’ assumption of duty claim.

Appellate review of summary judgments is de novo. Wadsworth v. Garrett, supra. In Bujol, supra, the supreme court enunciated detailed rules for parent-corporation liability in cases of this kind, adopting the federal standard of Muniz v. National Can Corp., 737 F.2d 145 (1 Cir.1984), and the principles of the Restatement (Sec ond) of Torts, § 324 A. Notably, this formulation postdated the instant hearing and did not guide the parties’ presentation of evidence or the district court’s analysis. Most importantly, the district court erroneously dismissed the assumption of duty claim and thus foreclosed the development of evidence to support or rebut it. For these reasons, we find the instant record inadequate for us to assess the evidence de novo and render judgment. La. C.C.P. art. 865. We therefore remand the case for further proceedings in which the parties may develop the facts truly material to the assumption of duty claim under Bujol, supra.

We would finally note that in granting the partial summary judgment, the district court prohibited the Graveses from raising any argument that Olin had assumed a duty to protect Olinkraft’s employees. Although there was no evidence of a contract to that effect, Bujol expressly permits the plaintiffs to introduce evidence that Olin undertook to perform a duty that Olinkraft owed to Graves. On remand, the parties may introduce any In evidence and raise any arguments relevant to this issue.

Conclusion

For the reasons expressed, we affirm the partial summary judgment insofar as it dismissed the plaintiffs’ contractual third-party beneficiary claim. We reverse, however, insofar as it dismissed the assumption of duty claim, and remand the case to the district court for further proceedings. Costs of this appeal are charged to Olin Corporation.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

BROWN, C.J., concurs with written reasons.

hBROWN, C.J.,

Concurring.

The trial court’s grant of partial summary judgment dismissed all claims occurring after December 31, 1966. As stated, the parties conceded that the issue presented was whether plaintiffs sufficiently alleged an assumption of duty by Olin to provide industrial hygiene services for the benefit of Olinkraft’s employees. I agree that they did, and because there exist material issues of fact on this subject, partial summary judgment was improperly granted. I would simply reverse.

      . A copy of the contract, attached to the motion, specified "certain accounting and clerical services being rendered by Olinkraft in respect of Olin's fleet of tractors and trailers based in West Monroe, Louisiana.”

      . Bujols stated: "Under the Muniz standard, other courts have held that it is not proof of an affirmative 'undertaking' to show merely that a parent: (1) hired the safety director to work for the subsidiary; (2) assisted a subsidiary in 'evaluating and inspecting the safety conditions' at the subsidiary's plant; or (3) conducted a negligent inspection. * * * [N]either a parent's concern with safety conditions and its general communications with the subsidiary regarding safety matters, nor its superior knowledge and expertise regarding safety issues, will create in the parent corporation a duly to guarantee a safe working environment for its subsidiary’s employees!.] * * * Under § 324 A(a), a plaintiff must prove that the parent's breach of its assumed duty resulted in an increased risk of harm. This section requires 'some change in conditions that increases the risk of harm to the plaintiff over the level of risk that existed before the defendant became involved. * * * Under § 324 A(b), a plaintiff must show that the parent undertook to perform a duty owed by the subsidiary to the plaintiff. This is a more stringent requirement than the 'positive undertaking' requirement of the introductory paragraph. The majority of cases that [sic] have held a parent, or other entity, will only be liable for a voluntary assumption of duty under § 324 A(b) where that corporation’s undertaking was intended to supplant, not just supplement, the subsidiary’s duty. * * * Finally, § 324 A(c) requires that the harm was suffered because of reliance by the plaintiff or the subsidiary on the parent's undertaking to provide for safety at the subsidiary’s plant.” Id., at 12-15, - So.2d at -, 2004 WL 1157413.

      . The parties concede that aside from the contract and assumed duty claims, the Graveses still have a premises liability claim against Olin. The record does not show that this claim was severed or the trial bifurcated, so we are somewhat perplexed at the district court’s decision to halt the trial and discharge the jury just because it rejected the contract claim.


author:
I,CARAWAY, J. |, DREW, J., JjDREW, J.
      It CARAWAY, J.,

text:
    STATE of Louisiana, Appellee v. Christopher SHRADER, Appellant.
    No. 38,327-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 18, 2004.
    Opinion Granting Rehearing Sept. 24, 2004.

      Daryl Gold, Shreveport, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, Joseph A. Gregorio, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   I,CARAWAY, J.

A jury convicted Christopher Shrader of possession with intent to distribute diazep-am, illegal carrying of weapons while in possession of a controlled dangerous substance (CDS), and aggravated flight from an officer. For these convictions Shrader received five years at hard labor on the drug charge to be served concurrent with five years at hard labor without benefit of parole, probation or suspension of sentence on the weapon count. He was given an additional consecutive sentence of one year at hard labor for the fleeing conviction. Shrader appeals his conviction arguing insufficient evidence for the gun possession offense and the trial court’s denial of his procedural right to back-strike a prospective juror. Finding a double jeopardy violation, we vacate Shrader’s drug conviction and sentence, and affirm the firearm conviction and sentence.

Facts

During the early morning hours of July 6, 2000, undercover officers of the Bossier City Police Department attempted to initiate a traffic stop of the white Chevrolet pickup truck driven by Shrader, but registered in the name of a Shreveport law enforcement officer. Shrader fled from officers, leading numerous police vehicles in a westbound high speed chase down Interstate 220 through Bossier and Caddo Parishes. As Shrader’s vehicle crossed the Red River Bridge, Officer Ashley Kneipp observed Shrader’s vehicle hit the guardrail as he threw something out of the window over the bridge toward the river below. Other Bossier City police officers were dispatched to secure that location. In the meantime, the chase continued pinto Shreveport. After striking a Bossier City police vehicle in a parking lot and hitting the wall of a television news station, Shrader continued south on North Market street, eventually changing lanes and ramming a second police vehicle. Shrader then pulled into a gas station, striking a third police car. By this time, members of the Shreveport Police Department had joined the chase. Finally, Officer Kneipp was able to sandwich Shrader’s then disabled vehicle between her car and another unmarked unit. The officers pulled Shrader from his vehicle, handcuffed him and read him his rights.

As Shrader was being arrested, at least two officers observed a gun in the truck. A third officer who inventoried the vehicle retrieved a gun from the truck. The ownership of the gun, by the defendant or any other person, was not established at trial.

The officers who remained on the bridge monitored what they believed to be evidence below. Eventually, police were able to recover by boat approximately 637 pills, later identified as Diazepam or Valium, on a sandbar in the river right below the bridge.

The jury rendered unanimous guilty verdicts on the drug possession and fleeing charges; a ten-two vote was returned on the gun charge. After the trial court denied his Motion for Post Verdict Judgment of Acquittal as to his gun possession conviction, Shrader appealed.

Discussion

On appeal, Shrader argues that the trial court erred in not allowing him to exhaust all of his peremptory challenges after the jury was tentatively chosen, but before the jury panel had been sworn as a whole. Shrader also Dargues that the evidence was insufficient to convict him of possession of a firearm while in the possession of a Schedule IV controlled dangerous substance because the state failed to exclude the reasonable hypothesis that the gun in the vehicle belonged to the law enforcement officer who owned the truck. Sufficiency of the Evidence

When issues are raised on appeal both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence Rmust be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Owens, 30,903 (La. App. 2d Cir.9/25/98), 719 So.2d 610, unit denied, 98-2723 (La.2/5/99), 737 So.2d 747.

Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Anderson, 36,969 (La.App. 2d Cir.4/9/03), 842 So.2d 1222. For circumstantial evidence to convict, it must exclude every reasonable hypothesis of innocence. La. R.S. 15:438.

Specifically, Shrader contends that the state failed to show he knew “at the time he possessed drugs that the gun was in the vehicle.” He reasons that since the vehicle was owned by a Shreveport law enforcement officer, and the handgun found was the same type used by police officers, it is logical to conclude that the gun was owned by the officer and fell out during the high speed chase. Additionally, he points out that the state failed to obtain fingerprints from the weapon.

In pertinent part La. R.S. 14:95(E) prohibits the carrying of weapons if the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while in the possession of or during the sale or distribution of a controlled dangerous substance.

|sThe term “possess” is broad enough to encompass both actual and constructive possession under La. R.S. 14:95(E). State v. Blanchard, 99-3439 (La.1/18/01), 776 So.2d 1165. Constructive possession occurs when the firearm is subject to a defendant’s dominion and control even temporarily. Id. A knowing and intentional possession of both a firearm and a controlled dangerous substance is necessary for a violation of La. R.S. 14:95(E). State v. Woods, 94-2650 (La.App. 4th Cir.4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035. Constructive possession contains an element of awareness or knowledge that the firearm is there and general intent to possess it. State v. Ball, 31,515 (La.App. 2d Cir.12/9/98), 733 So.2d 1, aff'd, 99-0428 (La.11/30/99), 756 So.2d 275. General intent exists when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10. Although the existence of intent is a question of fact, it may be inferred from the circumstances of the transaction. State v. Joseph, 02-1370 (La.App. 3d Cir.4/17/03), 854 So.2d 914.

At the time of Shrader’s arrest, three officers observed a gun in the truck driven by him. When Shrader’s vehicle was finally stopped, Officer Kneipp saw a 40-cali-ber pistol on the floorboard of the truck. Kneipp acknowledged the gun was the type issued to Bossier City police officers. A second officer, Richard McGee, also testified that when Shrader was being extracted from the vehicle, he saw a weapon on the front seat that fell |fito the floorboard. The officer who actually retrieved the gun from the vehicle was Shane Cul-ver, an officer with the Bossier City narcotics division. Culver testified he found a mini-Glock on the front seat of the truck. He unloaded the gun into the vehicle and did not inventory the bullets nor obtain fingerprints from the weapon.

Shrader argues that Culver’s testimony was not credible since the bullets were not taken and preserved as evidence. However, the issue of whether a gun is loaded is not a component of the present offense. Additionally, issues regarding Culver’s failure to inventory the bullets goes to the credibility of the officer. Whether or not the jury believed Culver’s explanation was an issue for the jury which is accorded great deference on appeal. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, State ex rel. Gilliam v. State, 02-3090 (La.11/14/03), 858 So.2d 422.

McGee also testified that when the defendant was being extracted from the vehicle he saw “a weapon on the front seat, falling on the front seat, then fall to the floorboard.” Evidence of a gun on the front seat of the truck driven by a defendant who possessed controlled dangerous substances is sufficient to establish a violation of La. R.S. 14:95(E). State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324. The circumstances indicate that Shrader must have known of the presence of the gun in the vehicle and that he had dominion and control over it.

Shrader’s argument is further based on the fact that he did not own the vehicle and, inferentially, may not have owned the gun. Ownership, |7however, is not an element of the crime. Shrader must only have possessed the weapon or had it under his immediate control. This was established beyond a reasonable doubt by the officer’s testimony that the gun was seen beside Shrader on the seat of the vehicle. There are no inferences that arise from Shrader’s lack of ownership of the vehicle which clearly established a reasonable hypothesis that he did not have the weapon under his immediate control. Accordingly, from this evidence, the jury could have reasonably concluded to the exclusion of every other reasonable hypothesis of innocence that Shrader knowingly and intentionally possessed the gun for his own purposes while in the possession of Diazep-am.

Juror Challenge

Shrader also challenges the trial court’s denial of his attempt to verbally peremptorily challenge (“back-strike”) an unspecified juror, after initially accepting the juror but before the final jury panel was sworn.

During voir dire in the present matter, the trial court operated under its Local Rule 19 which required each side to simultaneously submit both its cause and peremptory challenges. The challenges were submitted in writing after both the state and defense had been given the opportunity to question members of the panel. The court also allowed limited back-strikes.

In this case, after the trial court announced it had its 12-person jury, Shrader’s attorney informed the court he wished to utilize his last peremptory challenge. The trial court denied this request explaining that he had just sought challenges from both sides and defense counsel had written that he had none. The trial court further explained that to allow the defense [ «to make the objection after the court announced it had a complete jury undermined the reason for having “simultaneous exercise of peremptory challenges,” namely, the prevention of giving either side some type of strategy advantage by exercising a challenge when the other side did not do so.

Shrader objected to the ruling on the grounds that he was entitled to exercise his last peremptory challenge pursuant to La. C. Cr. P. art. 795 B(l). On appeal Shrader contends that the trial court’s ruling denied him equal protection under the law. La. C. Cr. P. art. 841 requires a party to make an objection to a ruling contemporaneously with the occurrence of the alleged error as well as the grounds for the objection. A new basis for an objection may not be raised for the first time on appeal. State v. Johnson, 03-620 (La.App. 5th Cir.10/28/03), 860 So.2d 180, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. Because Shrader made no equal protection argument to the trial court, he is precluded from first raising this issue on appeal. Moreover, on appeal, Shrader has not identified the specific juror he would have challenged nor the prejudice of the trial court’s ruling. Even so, our review of the record reveals no prejudice in the ruling. La. C. Cr. P. art. 921.

A defendant has the right to full voir dire examination of prospective jurors, and to peremptory challenges. La. Const, art. I § 17. The purpose of voir dire examination is to determine the qualifications of prospective jurors by testing their competency and impartiality. It is designed to discover bases for challenges for cause, and to secure information for an intelligent exercise of peremptory challenges. State v. Taylor, 93-2201 (La.2/28/96), 669 So.2d 364, cert. denied, Taylor v. Louisiana, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996).

Relevant to the selection of jurors, La. C. Cr. P. art. 788 provides:

A. After the examination provided by Article 786, a prospective juror may be tendered first to the state, which shall accept or challenge him. If the state accepts the prospective juror, he shall be tendered to the defendant, who shall accept or challenge him.. When a prospective juror is accepted by. the state and the defendant, he shall be sworn immediately as a juror. This Article is subject to the provisions of Articles 795 and 796.
B. If the court does not require tendering of jurors, it shall by local rule provide for a system of simultaneous exercise of challenges.

Additionally, La. C. Cr. P. art. 795(B)(1) provides that “[pjeremptory challenges shall be exercised prior to the swearing of the jury panel.” Finally, Twenty-Sixth Judicial District Court Local Rule 19 provides:

In jury trials, both civil and criminal, peremptory challenges shall be exercised by all parties simultaneously. All challenges shall be in writing and signed by the attorney or party if unrepresented.

The Louisiana Supreme Court has specifically ruled that a juror who is temporarily accepted and sworn may nevertheless be challenged peremptorily prior to the swearing of the jury panel. State v. Taylor, swpra. Nonetheless, the erroneous denial of the right to back-strike is subject to harmless error review. Id. To review for harmle'ss error, it is necessary to analyze whether 'the voir dire afforded the defendant was sufficiently full. This is accomplished by examining the voir dire as a whole. State v. Taylor, supra; State v. Plaisance, 00-1858 (La.App. 4th Cir.3/6/02), 811 So.2d 1172, writ denied, 02-1395 (La.11/27/02), 831 So.2d 270, cert. denied, 538 U.S. 1038, 123 S.Ct. 2084, 155 L.Ed.2d 1071 (2003).

In Taylor, the state and defense agreed to a system of simultaneous challenges. Twelve jurors had been selected but had not been sworn when the defendant asked the court to allow him to exercise his remaining four peremptory challenges. The court declined the request. On appeal, defendant argued that he was prejudiced because he would have struck a particular juror. Reviewing Articles 788(A) and 795(B)(1) of the Code of Criminal Procedure, the Louisiana Supreme Court agreed that the defendant should have been allowed to exercise peremptory challenges before the panel was sworn, but found the error harmless. Regarding the specific juror, who was in the final panel, the court noted that both the defense and state were given the opportunity to challenge that juror. After this juror was accepted, twelve jurors had been chosen but not finally sworn. The court ruled that under these circumstances, Taylor had sufficient opportunity to challenge the juror and could have exercised its peremptory challenge to excuse her.

In the present matter, the record before us shows that during the three-day jury selection, defense counsel thoroughly questioned the jurors during the general voir dire. Moreover, the court allowed limited back-strikes, and excused two other persons after they were individually sworn under La. C. Cr. P. art. 788(A). The court also reopened its discussion for cause on one juror after the state and defense orally agreed that the juror should be released. Like Taylor, supra, the court’s refusal to allow a back-strike after twelve jurors were chosen did not prevent Shrader from utilizing a j ^peremptory challenge on any of the selected jurors during the jury selection process. At the time of the challenge, Shrader had one remaining peremptory challenge which he failed to utilize on the alternate juror. As a whole, we find that the voir dire afforded Shrader allowed him to adequately test the competency and impartiality of the prospective jurors. Moreover, Shrader has failed to allege specific prejudice and the record does not reflect that an unsuitable juror was chosen. On these grounds, we find that any error in the trial court’s denial of Shrader’s attempt to back-strike to be harmless. Error Patent

Appellant’s final assignment was a request for this court to examine the record to determine if there are any errors patent. This request is unnecessary since such a review is made automatically in all criminal cases. See State v. Lam, 36,862 (La.App. 2d Cir.2/11/03), 837 So.2d 749, writ denied, 03-0945 (La.10/3/03), 855 So.2d 308.

After such review of the record before us, we find that Shrader’s double jeopardy rights have been violated. A violation of double jeopardy apparent on the face of the record is reviewable as error patent. State ex rel. Adams v. Butler, 558 So.2d 552 (La.1990). Shrader’s indictment and prosecution for possession of a CDS with intent to distribute and possession of a firearm while in possession of a CDS violates the double jeopardy clauses of both the federal and state constitutions which prohibit an offender from being convicted of both the underlying drug offense for a La. 14:95(E) violation and the 14:95(E) violation itself. State v. Barakat, 38,419, 38,420, 38,421 (La.App. 2d Cir.6/23/04), 877 So.2d 223. The same rationale that precludes an offender from being convicted of both a felony murder and the underlying felony applies in this case. State v. Thomas, 99-2219 (La.App. 4th Cir.5/17/00), 764 So.2d 1104. See also, State v. Sandifer, supra; State v. Woods, supra; State v. Warner, 94-2649 (La.App. 4th Cir.3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089.

To remedy such a double jeopardy violation, the reviewing court vacates the conviction and sentence of the less severely punishable offense and affirms the conviction and sentence of the more severely punishable offense. State ex rel. Adams, supra. Accordingly, we vacate Shrader’s conviction and sentence for possession with intent to distribute diazepam and affirm the more severely punishable firearm offense conviction and sentence.

Conclusion

The defendant’s conviction and sentence under La. R.S. 40:969(A) for possession of diazepam with intent to distribute are vacated. Defendant’s convictions and sentences for possession of a firearm while in possession of diazepam in violation of La. R.S. 14:95(E) and aggravated flight from an officer in violation of La. R.S. 14:108.1 are affirmed.

VACATED IN PART; AFFIRMED IN PART.

DREW, J., dissents with written reasons.

|, DREW, J.,

dissents with written reasons.

Separate elements of proof are required for possession with intent to distribute diazepam, as compared with possession of a firearm while in possession of diazepam. Hence, the Double Jeopardy protections of the Fifth Amendment were never triggered by the dual prosecution of these two charges. Therefore, we should have affirmed in all respects, and I must respectfully dissent.

Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.

ON REHEARING

JjDREW, J.

In our court’s otherwise excellent previous opinion, State v. Shrader, 2004 WL 1887898 (LaApp. 2d Cir.8/18/04), 881 So.2d 147, a 2-1 majority made a finding of error patent, holding that the dual prosecutions here implicated a violation of the Fifth Amendment’s protections against double jeopardy. I dissented to that finding, otherwise joining in the well-crafted decision.

At rehearing, a 3-2 majority concluded that both prosecutions are valid, each crime requiring proof of a separate element not necessary for the conviction of the other offense.

This is a difficult, confusing, and complex area, and- one in which reasonable minds often differ.

The defendant here was prosecuted and convicted of two crimes:

• Possession with intent to distribute certain drugs; and
Illegal carrying of ñrearms while in possession of the same drugs.

While these crimes have an obvious common element (possession of the drugs), each crime requires an element which the other does not; therefore, no double jeopardy violations are implicated.

This is a different situation from a prosecution of felony murder predicated upon the commission of a certain felony, along with a prosecution for that same underlying felony. State v. Thomas, 99-2219 (La. App. 4th Cir.5/17/00), 764 So.2d 1104.

This instant case is also distinguishable from our very recent opinion by which we properly found double jeopardy strictures were violated when the defendant was prosecuted for both possession of a drug, and possession | Pof a firearm while in possession of the same drug. State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223.

Accordingly, we adopt all but the last three paragraphs of our previous opinion. Shrader, supra. Finding no violation of Shrader’s protection against double jeopardy, however, we now affirm the defendant’s conviction and sentence in all respects.

AFFIRMED.

' CARAWAY, J., dissents with written reasons.

WILLIAMS, J., dissents for the reasons assigned by J. CARAWAY.

It CARAWAY, J.,

dissents from the rehearing with written reasons.

In this case, Shrader was convicted of both possession of Diazepam with intent to distribute and possession of Diazepam while in the possession of a firearm. The same Diazepam formed the basis for the convictions of both offenses which occurred as one event. The majority on rehearing indicates that the added element of intent to distribute the CDS made the one drug crime in this case different from the other for purposes of double jeopardy. In agreeing with this court’s recent ruling in State v. Barakat, 38,419 (La.App. 2d Cir.6/23/04), 877 So.2d 223, the majority does not single out the element of gun possession as the lynchpin for its ruling because such possession is not criminal in and of itself and is meaningless until associated with the underlying possessory drug crime. Thus, the majority tacitly acknowledges that we are dealing only with the possessory drug crime and the crime of distribution of that same drug. The question of double jeopardy in such context has long been decided.

In State v. Dubaz, 468 So.2d 554 (La.1985), the Louisiana Supreme Court concluded that convictions for both possession of cocaine with intent to distribute and simple possession of the same substance violated double jeopardy. See also, State v. Cormier, 97-2882 (La.4/3/98), 717 So.2d 227. Of course, this court’s ruling in Bar-akat, relying partially on State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, held that convictions for possession of a firearm while in the possession of a controlled dangerous substance and possession of that same substance violated double jeopardy as well. Again, Barakat recognized that the firearm factual element which Lwas not an element of proof for one of the two crimes could not serve to defeat double jeopardy. Sandifer implied that under double jeopardy principles, a defendant could not be prosecuted for a firearms enhancement of the possession of a controlled dangerous substance and the possession of that same substance. Finally, in State v. Thomas, 99-2219 (La.App. 4th Cir.5/17/00), 764 So.2d 1104, writ denied, 00-1734 (La.6/22/01), 794 So.2d 780, the court concluded that convictions for both possession of cocaine with intent to distribute and possession of a firearm while in the possession of the same cocaine violated principles of double jeopardy.

The majority ruling therefore would reverse these cases, including the Dubaz decision by our highest court which is directly on point, without making any new distinction between the two drug crimes in question. Distribution of a CDS (which necessarily entails possession), and possession of the same CDS (whether with a firearm or not), when occurring together in the same criminal transaction, cannot be prosecuted as two separate crimes because of the double jeopardy principle as interpreted by the jurisprudence of this state. I respectfully dissent.