author: MOORE, J. BROWN, Chief Judge, BROWN, Chief Judge. MOORE, J.,

text:
    Michael Shane SITTER and Rachel Allison Sitter, Plaintiff-Appellants v. Michael Sean WARNER, Jacqueline Elaine Mann Warner, Shirley Davis, Era World Real Estate, Inc. & The Board of Commissioners of The Bossier Levee District, Defendant-Appellees.
    No. 42,169-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 16, 2007.
    Opinion Granting Rehearing July 18, 2007.

      Shuey Smith LLC, by Richard E. Hiller, Shreveport, for Appellants.
    David L. White, Bossier City, for Appel-lees, Michael Sean Warner and Jacqueline Elaine Mann Warner.
    Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock, by David M. Cambre, Metairie, for Appellees, Shirley Davis and ERA World Real Estate.
    Hubley, Marcotte, Rhodes & Hussey, by Lydia M. Rhodes, Shreveport, for Appel-lee, Board of Commissioners, Bossier Levee District.
    Wiener, Weiss & Madison, by John M. Frazier, Shreveport, for Appellees, Buddy Collins & Associates, Inc.
    Before BROWN, GASKINS and MOORE, JJ.
   MOORE, J.

| ¶ Michael and Rachel Sitter, the buyers of a house in Bossier City, appeal a summary judgment dismissing their redhibition claims against Michael and Jackie Warner, the sellers, and Shirley Davis and ERA World Real Estate, the sellers’ real estate agent. Finding no genuine issue of material fact and, on this record, a sufficient disclosure of the condition of the property, we affirm.

Factual Background

The house was built in 1996 on Lot 2, Brookhaven Estates Unit 2, a lot that backs onto the Flat River in north Bossier City; the Warners purchased it from the builder, Buddy Collins. In July 2000, the Warners listed it for sale with Shirley Davis, an agent with ERA World Real Estate. Ms. Warner filled out a standard “Seller’s Property Condition Statement.” In response to the question, “To your knowledge, are there any defects or problems with: * * * 3. Foundation (Pier/ Slab),” she checked “unknown.” Under “Explanations,” she handwrote: “Having Builder Buddy Collins looking at crack on outer brick — 10 year warranty on house foundation.”

In late July 2000, Collins hired Interstate Foundation Co. to inspect the house; Interstate’s report is not in the record. The following month, however, Collins hired a contractor, PPT Inc., to do $1,300 of work, including inserting piers and wedges to shore up the foundation. Shortly after this, Collins hired a civil engineer, Gordon Russell, to inspect the work. Russell’s report, dated October 26, 2000, stated, “The placement of these piers has closed the cracks. This has repaired the existing problem.” The report also noted, however, that the rear of the house was on fill | ¡¡material which has settled about one inch, leaving a 1/2-inch opening in the brick veneer; he recommended adding piers to this portion of the house.

Meanwhile, the Sitters were negotiating (through their own agent, Mary Stokes) to buy the house. On October 17, 2000, they submitted a written offer of $108,000, which the Warners accepted; on October 28, 2000 (two days after Russell wrote his engineer’s report), the Sitters signed the Warners’ property condition statement. The parties closed the sale on October 30. According to the Sitters, aside from the property condition statement, there was no further disclosure of the foundation issues: neither the Warners nor Ms. Davis ever mentioned the report from Interstate Foundation, the work by PPT, or the inspection by Russell.

According to their petition, the Sitters moved into the house unaware of any problems. In June 2001, however, they discovered in the back yard a hole which seemed to run up to the base of the house. They called Interstate Foundation, who informed Mrs. Sitter that they had already inspected the house about one year earlier. On August 1, they advised the Sitters the foundation “appears to be in basically the same condition now as it was one year ago. Because of this, it is doubtful anyone did any foundation work before you bought the house.” Interstate’s report noted separations ranging from 1/8 — 1/4 inch in the brick and fascia, as well as a “big void” in the foundation, and proposed repairs costing $3,955.00.

The Sitters filed the instant suit in November 2001 to rescind the sale or, alternatively, reduce the purchase price. They named as defendants Michael and Jackie Warner, the sellers; Ms. Davis and ERA World Real ^Estate, the seller’s agents; and the Board of Commissioners of the Bossier Levee District. They alleged that the Warners and Ms. Davis failed to disclose the true nature and extent of the defects in the foundation, or that the Board of Commissioners had been conducting soil tests in the area for years. The claim against the Board was that it failed to advise prospective buyers of the seriously unstable soil along the Flat River.

The Warners filed incidental claims against Ms. Davis and ERA, as well as against Buddy Collins, the builder. The Warners claimed, in essence, that they fully disclosed the whole situation to Ms. Davis, but she must have neglected to pass along this information to the buyers.

Summary Judgment Evidence and Action of Trial Court

The Warners filed a motion for summary judgment. They admitted that they noticed a crack in the house in July 2000, but asserted that they notified their real estate agent, Ms. Davis, who in turn called the builder, Collins; as far as they knew, PPT had fixed the problem. They also argued that the property condition statement was sufficient to place any reasonable buyer on notice of a potential problem. In support, they attached a copy of the property condition statement, together with portions of their own and of Ms. Davis’s depositions.

Ms. Davis and ERA also filed a motion for summary judgment, raising similar contentions. They asserted that the Sitters could not prove they failed to disclose any known defect. In support, they attached copies of the property condition statement and the buy-sell agreement, as well as portions of the depositions given by the Sitters, the Warners and Ms. Davis.

[4The Sitters opposed the motions, arguing that when they signed the property condition statement, Ms. Davis failed to disclose that PPT had performed substantial repairs to the foundation or that an engineer had inspected it. The Sitters made the same claims against the War-ners, adding that they failed to disclose a neighborhood meeting held in October 2000, in which members of the Board advised property owners of “suspected foundation failures occurring in the vicinity of Flat River.” In support, they attached copies of PPT’s invoice, the engineer’s report, Interstate’s repair proposal, a letter from the president of the Board, and a portion of Buddy Collins’s deposition.

After a brief hearing, the district court stated that the Warners and Ms. Davis both disclosed the condition of the property to the Sitters. He rendered summary judgment in favor of those defendants and designated it an appealable partial final judgment.

The Parties’ Contentions

The Sitters have appealed, urging by two assignments of error that the district court erred in granting both motions for summary judgment. In general, they assert that despite the new favored status of summary judgments, factual inferences must be drawn against granting the motion and all doubt resolved in the opponent’s favor. Row v. Pierremont Plaza LLC, 35,796 (La.App. 2 Cir. 4/3/02), 814 So.2d 124, writ denied, 2002-1262 (La.8/30/02), 823 So.2d 952. They concede the property condition statement noted “crack on outer brick,” but contend this came nowhere near disclosing the true condition of the house. They specifically argue that Interstate’s July |B2000 inspection, PPT’s September 2000 foundation repair work, Russell’s October 2000 report, and the Board’s October 2000 letter, were all significant facts bearing on a latent defect that should have been disclosed. They also contend that by the cross-claim, the Warners accused Ms. Davis of failing to disclose material information. They submit that this alone created a genuine issue of material fact as to how much the Warners and Ms. Davis knew before selling the house.

The Warners contend summary judgment was proper because the property condition statement was sufficient to place the Sitters on notice of defects in the foundation; the Warners provided all relevant information to Ms. Davis and were entitled to rely on her to convey this to the buyers, Armstrong v. Wolf, 583 So.2d 580 (La.App. 3 Cir.1991); they themselves (the Warners) made no direct representations to the Sitters; and the defect was partially apparent, with cracks in the brick siding and holes in the yard, and sufficient to place a reasonable buyer on notice of some defect, Pickerel v. Long, 286 So.2d 430 (La.App. 2 Cir.1973).

Ms. Davis and ERA contend that they disclosed to the Sitters’ agent, Ms. Stokes, that repairs had been performed to correct the crack noted on the property condition statement. They quote the portion of the engineer’s report that says, “The placement of the piers has closed the cracks. This has repaired the existing problem.” They also cite the Sitters’ deposition, in which they admitted reading the property condition statement but electing not to have the house independently inspected, as this was “not necessary.” They reiterate that to the best of their knowledge, the defect had been ^repaired. Finally, they contend that the Sitters offered no evidence that Ms. Davis had any knowledge of the Board’s activities in Brookhaven Estates. They suggest that any breakdown in communications was between the Sitters and their own agent, Ms. Stokes.

Applicable Law

The motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Wells v. Red River Parish Police Jury, 39,445 (La.App. 2 Cir. 3/2/05), 895 So.2d 676, writ not cons., 2005-0854 (La.5/13/05), 903 So.2d 438. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except certain domestic actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. The motion 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 as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B; Racine v. Moon’s Towing, supra.

On the motion for summary judgment, the burden of proof is on the mover; however, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues |7of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Wells v. Red River Parish Police Jury, supra. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966 C(2); Power Marketing Direct Inc. v. Foster, 2005-2023 (La.9/6/06), 938 So.2d 662.

Appellate review of the grant or denial of summary judgment is de novo. Jones v. Estate of Santiago, 2003-1424 (La.4/14/04), 870 So.2d 1002; Wells v. Red River Parish Police Jury, supra.

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold which renders it either absolutely useless or its use so inconvenient and imperfect that had he known of the vice, the buyer would not have purchased it. La. C.C. art. 2520. The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer, of such things. La. C.C. art. 2521; Duplechin v. Adams, 95-0480 (La.App. 1 Cir. 11/9/95), 665 So.2d 80, writ denied, 95-2918 (La.2/26/96), 666 So.2d 1104. A realtor or broker has a duty to disclose to purchasers any defect of which she has knowledge. Nesbitt v. Dunn, 28,240 (La.App. 2 Cir. 4/3/96), 672 So.2d 226, and citations therein.

Discussion

The crux of the case is the sufficiency of notice under Art. 2521. On July 13, the Warners executed (with assistance from Ms. Davis) the property condition statement, noting the condition of the foundation was “unknown,” | ¡/‘having builder Buddy Collins looking at crack on outer brick.” Many things happened after this: Interstate Foundation inspected the house, PPT repaired the foundation at a cost of $1,300, an engineer inspected the work and issued a report. The Warners and Ms. Davis were fully aware of these events but never updated the property condition statement to reflect them. The Sitters correctly argue that the subsequent events are highly relevant to the decision to buy the house. The failure to disclose them, standing alone, may have been a breach of the duty to disclose latent defects of which the sellers had knowledge.

In support of the motions for summary judgment, however, the defendants offered several depositions which showed verbal disclosure. Because the Sitters were working through a buyer’s agent, Ms. Stokes, neither the Warners nor Ms. Davis had any direct contact with them. Ms. Warner testified that she was fully aware of the cracked slab and that PPT performed the work in mid-August; she told Ms. Davis when the repairs were completed. Ms. Davis testified that she relayed this information to Ms. Stokes: “I told her what had happened and what had been done, and she [Ms. Stokes] said, that’s okay.” She later clarified:

I told her [Ms. Stokes] — she had asked me about the crack. I told her what had been done, that we had contacted Buddy, and that he had sent men out to repair it. And that he had assured me that it was all fixed and that he would send me the engineer’s report and any paperwork that he had. * * * She said, that’s fine.

Mr. Sitter testified that he discussed the property condition statement with Ms. Stokes; when he asked her about the foundation, she “told us that Buddy had looked at the problem and everything was okay.”

| flThis testimony easily shows that the Sitters’ agent, and the Sitters themselves, received information that supplemented the property condition statement and sufficiently advised of the defect and repairs under Art. 2521. With this showing, the burden shifted to the Sitters to offer some evidence demonstrating a genuine issue of material fact. La. C.C.P. art. 966 C(2). On de novo review, we find the Sitters failed to make this showing. They filed copies of the documents mentioned above, but these simply do not address, and certainly do not refute, the showing that Ms. Davis made a verbal disclosure to Ms. Stokes, or the content of that disclosure. In short, there is no genuine issue of material fact.

We also note that the content of the verbal disclosure was sufficient. In some circumstances, a cracked foundation may be truly hidden, creating liability for the seller. Nesbitt v. Dunn, supra; Collins v. Curtis, 97-2348 (La.App. 4 Cir. 9/30/98), 719 So.2d 679, writ denied, 98-2755 (La.12/18/98), 734 So.2d 641. However, a crack or separation in the outer brick is readily apparent to the buyer, satisfying Art. 2521. Pickerel v. Long, supra; Duplechin v. Adams, supra. The summary judgment evidence shows that the cracked bricks and holes in the yard were apparent. On this record, Ms. Davis’s verbal notice to Ms. Stokes was sufficient, as a matter of law, to advise the Sitters of the defect.

Finally, there is nothing to indicate that the Warners or Ms. Davis had any knowledge of the Board’s operations in Brookha-ven Estates. The letter from the Board’s president, Mr. Larkin, stated that subdivision residents had contacted the Board about suspected foundation failures and the Board had |inmet with “some of the homeowners”; this does not show that the Warners were in any way involved. Notably, Ms. Warner testified that she had no knowledge that any entity was testing the soil or that other houses in the area had foundation problems. The district court did not err in granting the motions for summary judgment.

Conclusion

For the reasons expressed, we find no genuine issue of material fact that the defendants provided a sufficient disclosure of the condition of the property, and that they are entitled to judgment as a matter of law. The judgment is affirmed. Costs are to be paid by the plaintiffs, Michael and Rachel Sitter.

AFFIRMED.

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

BROWN, Chief Judge,

dissenting.

11 Although the majority opinion recognized that the report of the civil engineer, dated October 26, 2000, recommended additional work because the house was on fill material which had settled about one inch, the opinion did not consider the engineer’s recommendation in finding that a sufficient disclosure was provided. Nine days before the report the buyers submitted a written offer, and two days after the report the sellers agreed to the offer. The buyers then signed the property condition disclosure statement as originally written, i.e., foundation “unknown.” On October 30, 2000, five days after the engineer’s report the sale was closed. There is nothing in this record to show that the additional work was done.

The alleged verbal disclosure between the real estate agents was that the “crack” was fixed, meaning the crack as stated in the July 2000 disclosure statement. According to the deposition of the seller’s realtor, Shirley Davis, no particulars of what was done or what was left to be done was disclosed — just that it (crack) was fixed.

Eight months after the closing, Interstate Foundation came back out and found that the house had settled and was in the same condition as when Interstate first inspected the house for the builder in August of 2000. Obviously, the additional work had not been completed.

The substantial work that had been done and still needed to be done should have been clearly disclosed. There are material fact questions, and summary judgment was not appropriate.

On Rehearing

Before BROWN, GASKINS, CARAWAY, PEATROSS, and MOORE, JJ.

BROWN, Chief Judge.

I,We granted plaintiffs/appellants’ application for rehearing. After considering additional briefing by the parties, we now vacate this court’s May 16, 2007, judgment and issue the following opinion.

In this court’s original opinion it was stated that “[T]he Sitters (buyers) correctly argued that the subsequent events are highly relevant to the decision to buy the house. The failure to disclose them, standing alone, may have been a breach of the duty to disclose latent defects of which the seller(s) had knowledge.” That opinion then found that the content of a verbal disclosure between realtors was sufficient.

This case came before the court as a result of the trial court’s ruling on a motion for summary judgment filed by defendants. Summary judgment is not proper when there are genuine issues of material fact.

In July 2000, the sellers, Michael and Jackie Warner, listed their home for sale, filled out a standard property condition statement indicating that the condition of the foundation was “unknown” and that the builder of the home would look at a crack in the exterior brick. Thereafter, Interstate Foundation Co. inspected the house at the builder’s request and found piers and wedges were needed to shore up the foundation. This work was done and the sellers’ realtor (Shirley Davis) claims to have told the buyers’ realtor (Mary Stokes) that the builder fixed the crack in the brick. On the face of it, such a disclosure would not have been adequate to reveal the severity of the foundation problem.

|2The alleged verbal disclosure between the real estate agents was that the “crack” was fixed, meaning the crack as stated in the July 2000 disclosure statement. According to the deposition of the sellers’ realtor, Shirley Davis, no particulars of what was done or what was left to be done were disclosed — -just that it (the crack) was fixed.

Thereafter, a report from the civil engineer, dated October 26, 2000, recommended additional work because the house was on fill material and had settled about one inch. Nine days before this report the buyers submitted a written offer, and two days after the report the sellers agreed to the offer. The original disclosure statement had not been amended to show that the house had sunk and the foundation had been shored up, nor was the new report from the engineer disclosed. On October 30, 2000, five days after the engineer’s report, the sale was closed. There is nothing in this record to show that the additional work was done or that the findings of the civil engineer that the house had again settled were disclosed to the buyers.

Eight months after the closing, Interstate Foundation came back out and found that the house had settled and was in the same condition as when Interstate first inspected the house for the builder in August of 2000.

Neither the trial court nor a reviewing court serves as a fact finder in summary judgment proceedings. If evidence of a material fact is controverted, summary judgment will not lie. On this record there are clearly material fact questions, and summary judgment was not appropriate. We now reverse the grant of summary judgment by the trial court in favor of defendants, Michael and Jackie Warner, Shirley Davis, and ERA World |sReaI Estate, and remand for further proceedings. Costs are to be paid by the above defendants.

REVERSED AND REMANDED.

MOORE, J., dissents with written reasons.

MOORE, J.,

dissents.

hi respectfully dissent for the reasons assigned in this court’s original opinion. Ordinarily a variance between the documents and a party’s testimony will create a genuine issue of material fact. Here, however, the plaintiffs admitted in deposition that they received all the information relayed through the parties’ respective agents. This fact demonstrates that the plaintiffs will not be able to prove an essential element of their claim, that the defects were not known to them at the time of the sale. The prospect that a fact finder might discredit the plaintiffs testimony is not grounds for denying the summary judgment. Babin v. Winn-Dixie La., 2000-0078 (La.6/30/00), 764 So.2d 37. Moreover, nobody disputes that the quarter-inch separations in the brick and fascia and the hole in the back yard were readily apparent; these would lead a reasonably prudent buyer to inspect further. I would affirm the judgment of the trial court.


source: Caselaw Access Project

author:
JOAN BERNARD ARMSTRONG, Chief Judge.
      BELSOME, J.

license: Public Domain

text:
    Lionel ROCH v. ACCENT CONSTRUCTION CO.
    No. 2007-CA-0051.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 2007.

      Frank M. Buck, Jr., New Orleans, LA, for Plaintiff/Appellee.
    Dennis J. Phayer, Burglass & Tankers-ley, L.L.C., Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR. and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

| ¶ This matter comes before us on a “Motion to Dismiss Suspensive Appeal, Alternatively to Convert it to a Devolutive Appeal,” filed by the plaintiff-appellee, Lionel Roch.

The plaintiffs motion to dismiss concerns the timing of the 30-day delay for filing a suspensive appeal under La. C.C.P. art 2123. Therefore, the underlying facts of this case are not relevant to this procedural issue.

The original judgment was rendered by the District Court on June 15, 2006, finding in favor of the plaintiff-appellee, Lionel Roch, and against the defendant-appellant, Accent Construction Company (Accent), in the sum of $250,000.00 for past and future pain and suffering plus $100,000.00 for past lost wages, along with all costs and expert fees.

On July 6, 2006, timely motions for new trial, JNOV, remittitur and additur were filed by the plaintiff; by the defendant, Accent Construction Company, for new trial, JNOV, and remittitur; and by the in-tervenor Eagle Pacific Insurance Company (Eagle), to amend the judgment, for new trial and to set the intervention for trial.

|aOn August 4, 2006, the trial court rendered a “Judgment on Post-Trial Motions.” All of Accent’s motions were denied. All of Eagle’s motions were denied except that the trial of Eagle’s worker’s compensation intervention was fixed for trial for October 2, 2006. And all of the plaintiffs motions were denied except “to allow the inclusion of Canal as a party cast in judgment, solidarity with its insured as the liability insurer of Accent Construction Company, subject to the terms and limitations of its policy.”

Therefore, the effect of this judgment was to grant the plaintiffs motion for new trial to the extent that it cast an additional party in judgment, Canal Indemnity Company, as the liability insurer of Accent Construction Company.

This August 4, 2006 judgment was mailed to the defendants on September 21, 2006. On September 28, 2006, Accent and Canal filed a joint motion for new trial in response to the judgment of August 4, 2006. While this was the second motion for new trial filed by Accent, it was the first filed by Canal.

This motion for new trial was denied in its entirety on October 9, 2006. Accent and Canal filed a motion and order for suspensive appeal on October 24, 2006. Accent and Canal contend that this filing was timely based on the October 9, 2006 denial of their motion for new trial. The plaintiff brings this motion to dismiss based on the contrary position that the appeal time should be based on the August 4, 2006 judgment denying Accent’s motion for new trial which was later mailed to the parties on September 21, 2006. The plaintiff contends that only one new trial may be requested and that, in effect, the request for a second new trial was a nullity. The plaintiff does not argue that the sus-pensive appeal is untimely if the second request for a new trial is valid. The defendants do not argue that the suspensive appeal is timely if the 30 day suspensive appeal period begins to run on | .¡September 22, 2006, the day after the notice of the August 4, 2006 judgment was mailed.

This Court’s analysis will be informed throughout by the longstanding maxim of our law that appeals are favored. Appeals “should not be dismissed unless the law clearly requires a dismissal.” Thurman v. Star Elec. Supply, Inc., 283 So.2d 212, 217 (La.1973).

This Court is aware of a number of cases consistent with Palmer & Palmer v. United Inv. Corp., 255 So.2d 611, 612 (La.App. 1 Cir.1971) where the court took the position that:

Neither the Louisiana Code of Civil Procedure nor any other law within our ken or to which we have been cited countenances or permits the filing of a second motion for new trial by the party who has been denied relief on his first motion.

See: South Central Bell v. Womack & Associates, Inc., 97-2413, p. 4 (La.App. 1 Cir. 11/6/98), 744 So.2d 635, 637; Correa v. HCA Health Services of Louisiana, Inc., 525 So.2d 1206, 1207 (La.App. 5 Cir.1988); Clark v. Board of Trustees, 292 So.2d 874, 876 (La.App. 1 Cir.1974). See also Madison v. Miller Brewing Co., 94-2651 (La.App. 4 Cir. 2/10/95), 650 So.2d 831; Vernon v. South Central Bell Telephone Co., 96-1243 (La.App. 3 Cir. 10/30/96), 682 So.2d 853.

However, all of these cases may be distinguished from the instant case, because in all of them the first motion for new trial was denied in its entirety. In the instant case the effect of the judgment was to grant the plaintiffs motion for new trial, at least in part, by casting an additional party defendant in judgment, Canal, a defendant not mentioned in the original judgment.

14At the other end of the spectrum from the above cited cases is Carlone v. Carlone, 444 So.2d 1274 (La.App. 4 Cir.1984), in which this Court held as follows allowing a second new trial:

Plaintiff contends that only one new trial is permitted, and that the delay period for appeal, therefore, began on the date of the judgment of the first new trial and had expired before defendant filed her petition for appeal.
•Defendant bases her contention on the fact that the statutory provisions for new trial refer to it in the singular and on the lack of provisions for the filing of new trials from judgments granted on new trials. See La.C.C.P. arts.1971-1979.
Without a more explicit indication of such intent, the statutes use of the wording “a new trial” cannot be read to prohibit more than one new trial. Article 14 of the Louisiana Civil Code states that “[t]he words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.” The Civil Code’s definitional statute goes further in stating that “[t]he singular is often employed to designate several persons or things ...” La.C.C. art. 3556(2).
In fact, Article 1971 provides that a new trial may be granted to all of the parties, which would suggest that more than one new trial could be granted. In any case, since there is no explicit prohibition of a second new trial and there are no provisions in the law concerning the matter, the decision to grant more than one new trial must rest with the trial court judge. The delay period for taking an appeal does not begin to run until the court’s refusal to grant a timely application, or the date of mailing of notice of the court’s refusal if required, for the second trial just as for the first. La.C.C.P. arts.2087(2) and (3), and 2123(2) and (3); Jones v. Jones, 393 So.2d 281 (La.App. 1st Cir.1980); Donaldson v. Donaldson, 389 So.2d 1375 (La.App. 3d Cir.) writ den. 394 So.2d 617 (1980).

Id., at p. 1276.

| ¡(While we note that Carlone is at odds with this Court’s later decision in Madison v. Miller Brewing Co., supra, this Court has never explicitly overruled or criticized Carlone.

In the instant case, Canal was cast in judgment for the first time as a result of the plaintiffs motion for a new trial. Canal was not mentioned in any manner in the first judgment. Therefore, there was no reason for Canal, as a defendant, to file a motion for new trial in response to the first judgment. In effect, although the plaintiff in filing this motion to dismiss refers to the “second motion for new trial,” from the perspective of Canal, it was the first. We believe that Canal should have the opportunity to file post trial motions, including a motion for new trial, just as any other party would.

We can find no other case in the jurisprudence in which a second motion for new trial was requested by a party cast in judgment as a result of the first motion for new trial, which party was not mentioned in the original judgment. Therefore, we hold that Canal had the right to file a motion for new trial, and the 30 day delay for filing the instant suspensive appeal runs from the October 9, 2006 denial of that motion.

This Court, having found Canal’s new trial request valid, Accent, as a co-defendant, has the benefit of the same timing under La. C.C.P. art 2123 B. La. C.C.P. art 2123 B provides that:

Whenever one or more parties file motions for a new trial or for judgment notwithstanding the verdict, the delay periods specified herein commence for all parties at the time they commence for the party whose motion is last to be acted upon by the trial court.

For the foregoing reasons, the plaintiffs motion to dismiss the defendants’ appeal is denied.

| «MOTION TO DISMISS DENIED.

BELSOME, J., Concurs With Reasons.

BELSOME, J.

Concurring.

U respectfully concur in the result. I further agree that the facts of this case are extremely unique. Under this particular set of circumstances, the trial court’s failure to include Canal in the original judgment was tantamount to a clerical error that created an appellate delay of nearly four months. Purely to remedy the trial court’s error, Accent, as a co-defendant, may take advantage of Canal’s delay for filing its appeal in this unusual situation. Accordingly, the result is strictly limited to the facts of the instant ease.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    Frances Orlando Wife of/and Nicholas REGGIO v. E.T.I., ABC Inc. and City of New Orleans Through New Orleans Aviation Board.
    No. 2007-CA-0049.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 2007.
    William D. Aaron, Jr., Mark C. Carver, Leola M. Anderson, Goins Aaron, APLC, New Orleans, LA, for E.T.I., Inc.
    Michael D. Fisse, Jason L. Rush, Kyle A. Spaulding, Daigle Fisse & Kessenich, PLC, Madisonville, LA, for City of New Orleans Through New Orleans Aviation Board.
    (Court composed of Judge Dennis R. Bagneris, Sr., Judge Terri F. Love, and Judge Edwin A. Lombard).
   DENNIS R. BAGNERIS, SR., Judge.

11 This appeal is between two, third-party defendants. The district court granted the Appellee’s, E.T.I.’s. Exception of Prescription. The Appellant, the City of New Orleans, through the New Orleans Aviation Board (the NOAB), appeals the judgment of the district court denying its Motion to Reconsider Judgment and alternatively, Motion for New Trial. We affirm.

E.T.I., under contract with NOAB, performed repairs to the residence of Frances Orlando and Nicholas Reggio, the plaintiffs. The plaintiffs alleged in their Petition for Damages that they were injured when Mrs. Orlando stepped on glass that E.T.I. failed to clean up after repairs causing her severe bodily injury.

The Plaintiffs filed a Petition for Damages on March 7, 2003 naming both E.T.I. and the NOAB as defendants. The City of New Orleans was served on March 26, 2003 and on February 27, 2006 it filed a Third Party Demand against E.T.I., seeking contribution for damages arising out of plaintiffs claim. E.T.I. filed an Exception of Prescription on May 12, 2006 that was granted by the district court on July 26, 2006. On August 1, 2006, the NOAB filed a Motion to Reconsider that was denied on October 3, 2006. This timely appeal follows.

|2In the instant appeal, the NOAB avers that the district court erred in granting the Exception of Prescription because the NOAB’s causes of action based upon tort and/or implied contractual indemnity do not accrue until the indemnitee is cast in judgment.

The NOAB maintains that there existed a quasi-contract between it and E.T.I. based upon the theory of implied contractual indemnity. It argues that E.T.I. would be unjustly enriched if it fails to pay for the loss and that considering the relationship between the parties there is a ten-year prescription period.

E.T.I. counters that the prescriptive period is one year since the action arises out of tort and not contract. E.T.I. maintains that the NOAB filed its third party demand three years after the NOAB was served with the main demand. Further, E.T.I. argues that indemnity contracts between a public entity and contractors are prohibited by law under LSA-R.S. 38:2216(G) .

We must first classify the third party demand against E.T.I. by the NOAB in order to determine what prescriptive period applies. Clearly, the plaintiffs, Frances Orlando and Nicholas Reggio, filed suit in tort alleging negligence against E.T.I. and the NOAB. “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage.” LSA-C.C. Art. 3J/.9

| ¡^Approximately three years later, the NOAB seeks contribution from E.T.I. under the theory of contract. “A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms.” Soverign Ins. Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Polozola v. Garlock, 343 So.2d 1000 (La.1977); Berry v. Orleans Parish School Bd., 2001-3283 (La.5/21/02), 830 So.2d 283.

In the instant matter, the record reveals that there is no language in the contract whereby the NOAB specifically holds E.T.I. harmless of any liabilities because no such provision exists. The NOAB’s argument that a quasi-contract existed between the parties is without merit. This court will not conclude that indemnity was implied and that the district court erred in not finding that there was an implied indemnity clause. The NOAB had ninety days to seek indemnification and failed to do so. According to La. C.C.P. art. 1067, a third-party demand is to be filed within ninety days from service of the main demand.

Decree

We affirm the judgment of the district court denying the City of New Orleans through the New Orleans Aviation Board’s Motion to Reconsider Judgment, and in the alternative, Motion for New Trial and find that there was no error by the district court in granting E.T.I.’s Exception of Prescription.

AFFIRMED.

      . It is hereby declared that any provision contained in a public contract, other than a contract of insurance, providing for a hold harmless or indemnity agreement, or both, (1) From the contractor to the public body for damages arising out of injuries or property damage to third parties caused by the negligence of the public body, its employees, or agents, or, (2) From the contractor to any architect, landscape architect, engineer, or land surveyor engaged by the public body for such damages caused by the negligence of such architect, landscape architect, engineer, or land surveyor is contrary to the public policy of the state, and any and all such provisions in any and all contracts are null and void.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    STATE of Louisiana v. Wardell HERRINGTON.
    No. 2007-KA-0070.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.

      Eddie J. Jordan, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant, Wardell Herrington.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

11 Wardell Herrington was convicted of being a convicted felon in possession of a firearm in violation of La. R.S. 14:95.1. He is now appealing his conviction.

STATEMENT OF THE CASE

The State of Louisiana filed a bill of information charging Mr. Herrington with one count of being a convicted felon in possession of a firearm. He was arraigned and entered a plea of not guilty. A hearing on a motion to suppress evidence was held, and the motion was denied. At Mr. Herrington’s trial, a jury returned a verdict of guilty as charged. Approximately seven months later, the trial court denied Mr. Herrington’s motion for a new trial and for post-verdict judgment of acquittal, and Mr. Herrington stated that he was ready to be sentenced. The trial court then sentenced him to ten years at hard labor without the benefit of parole, probation, or suspension of sentence. He was also ordered to pay a fine of |¾$1,000.00, but the trial court suspended the fine. Mr. Herrington moved for an appeal, which was granted.

After the record was lodged in this Court, a motion was filed to supplement the record with the transcript of the hearing on the motion to suppress evidence. In response to the motion to supplement the record, the court reporter for the trial court certified that the transcript of the motion hearing could not be produced, because the tapes and notes of the hearing were lost in the flooding that followed Hurricane Katrina.

STATEMENT OF THE FACTS

At the trial New Orleans Police Department (“NOPD”) Detective Chad Perez testified that he was on patrol traveling on Martin Luther King Boulevard in New Orleans on the night that Mr. Herrington was arrested. While he was on patrol, Detective Perez received a call from a police dispatcher stating that two individuals, a man named Wardell, Jr. and a man named Wardell, Sr., were wanted in connection with a shooting and that they were walking in the 3600 block of Thalia Street in the C.W. Cooper Housing Development. This location was near Martin Luther King Boulevard. The dispatcher advised Detective Perez that Wardell, Jr. was wearing a white tee shirt and blue jeans and that Wardell, Sr. was wearing a yellow tee shirt and blue jeans.

Detective Perez testified that he had previously worked in the area where he was on patrol and was aware of a father and son known as Wardell, Jr. and War-dell, Sr. Detective Perez said that the person known as Wardell, Jr. was named Wardell Herrington and that the person known as Wardell, Sr. was named Wardell Helmstetter.

IsAfter he received the call from the dispatcher, Detective Perez drove in the direction of the intersection of South Dor-genois Street and Martin Luther King Boulevard, which was about a block and a half from the 3600 block of Thalia Street. As he was driving in the direction of the intersection, Detective Perez observed a black male wearing a white tee shirt and blue jeans crossing the intersection. As he drove closer, Detective Perez recognized the person as Wardell Herrington.

Because the dispatcher had said that Mr. Herrington was wanted, Detective Perez positioned his police vehicle behind Mr. Herrington, exited the vehicle, and ordered Mr. Herrington to come to the vehicle. Detective Perez testified that Mr. Herrington complied with his request, that he did not try to flee, that he was not engaged in any obvious criminal activity at the time, and that he offered no resistance to Detective Perez. Detective Perez also said that Mr. Herrington was alone, not walking with his father as the dispatcher had indicated.

Because of the nature of the dispatcher’s message and because the area where they were was a high crime area, when Mr. Herrington came to the police car, Detective Perez asked him to place his hands on the hood of the police car. To assure his safety, Detective Perez checked for weapons on Mr. Herrington’s person. He initially checked Mr. Herrington’s waistband, and when he “was running my hand down his right pant leg, a blue steel revolver fell from the bottom of his pant leg ... toward his outer ankle.”

After he saw the firearm, Detective Perez placed Mr. Herrington in handcuffs. Detective Perez then picked up the revolver, which he identified as a loaded Smith and Wesson 38-caliber revolver.

14After Mr. Herrington and the firearm were secured, Detective Perez conducted a computer search and learned that Mr. Herrington was not wanted, despite what the dispatcher had said. The computer search did show, however, that Mr. Her-rington was a convicted felon, who was on probation for possession of heroin. Detective Perez then arrested Mr. Herrington for carrying a concealed firearm and for being a convicted felon in possession of a firearm. Detective Perez testified that even though the computer search showed that Mr. Herrington was a convicted felon, he already knew this. In fact, Detective Perez said that he had arrested Mr. Her-rington on two previous occasions.

At the trial, Detective Perez identified the revolver that Mr. Herrington had in his possession. Detective Perez also identified four live 38-caliber bullets that were inside the gun at the time it was seized from Mr. Herrington.

Detective Perez further testified regarding the call that he received from the dispatcher prior to Mr. Herrington’s arrest. He said that he did not talk to the person who called the 911 operator with the information regarding the two men who were wanted in connection with a shooting. The 911 operator had transferred the initial call to the dispatcher. The dispatcher then relayed the information from the call to Detective Perez.

NOPD Officer George Jackson also testified at the trial. It was stipulated that Officer Jackson was an expert in the field of the examination of latent fingerprints. He testified that the fingerprints he had taken from Mr. Herrington were the same as the fingerprints taken in connection with Mr. Herrington’s prior arrest. Additionally, he testified that Mr. Herrington’s fingerprints appeared on the reverse side of a bill of information that charged him with a felony narcotics violation.

IsDanielle Howard, the police complaint operator for the NOPD, was the third person to testify at Mr. Herrington’s trial. She testified that her job was to take 911 calls and to process them for dispatch to the police officers. Ms. Howard identified an incident recall sheet for the incident involving two men, Wardell, Jr. and War-dell, Sr., allegedly wanted for a shooting. The 911 call was made anonymously.

Mr. Herrington was found guilty as charged by a jury. He was subsequently sentenced to serve ten years at hard labor without probation, parole, or suspension of his sentence. He was also fined, but the fine was suspended.

ERRORS PATENT

There are no errors patent.

DISCUSSION

Mr. Herrington has raised two assignments of error. They are discussed below.

Assignment of Error Number 1: An uncorroborated tip from a 911 caller stating that a person is wanted by the police cannot form the basis for reasonable suspicion for the police to conduct a stop of that person.

We must determine whether Detective Perez had a right to conduct an investigatory stop of Mr. Herrington based on the anonymous tip that was'received by a 911 operator, transmitted to a police dispatcher, and ultimately given to Detective Perez. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court first recognized that “a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.” 392 U.S. at 22, 88 S.Ct. at 1880. According to the Terry case, such an investigatory stop is not an unlawful “seizure” and, therefore, does not | (¡violate the prohibition against unreasonable searches and seizures established by the Fourth Amendment to the United States Constitution.

In Louisiana there is statutory authorization for investigatory stops on less than the probable cause required for an arrest. La. C.Cr.P. art. 215.1(A) provides that “[a] law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.”

In State v. Dank, 99-0390 (La.App. 4 Cir. 5/24/00), 764 So.2d 148, this Court explained the factors a reviewing court must consider in determining whether an investigatory stop was permissible. This Court stated:

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether the detaining officer had sufficient facts within his knowledge to justify an infringement, of the suspect’s rights. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. In assessing the reasonableness of an investigatory stop .... [t]he totality of the circumstances must be considered in determining whether reasonable suspicion exists. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered....

99-0390, pp. 4-5; 764 So.2d at 155 (citations omitted).

Both the United States Supreme Court and the Louisiana Supreme Court have considered whether an anonymous tip is a sufficient basis to justify an investigatory stop. Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); State v. Robertson, 97-2960 (La.10/20/98), 721 So.2d 1268. In neither of these cases was an investigatory stop justified by an anonymous tip.

In the J.L. case an anonymous caller reported to the police department that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S. at 268, 120 S.Ct. at 1377. Two police officers were instructed to respond to the call. They arrived at the bus stop and saw three black males. One of the three men, J.L., was wearing a plaid shirt. The officers did not see J.L. carrying a firearm, and he made no threatening or unusual movements. One of the officers approached J.L. and frisked him. A gun was seized from J.L.’s pocket. The officers also frisked the other two men at the bus stop and found no weapons. J.L. was charged with carrying a concealed firearm without a license and with possessing a firearm while under the age of 18. The Supreme Court of Florida held that the search was invalid under the Fourth Amendment to the United States Constitution.

In J.L. the United States Supreme Court said that the police officers’ suspicions regarding J.L. arose from a call made from an unknown location by an unknown caller and not from any independent suspicions of their own. The Supreme Court stated:

Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”

529 U.S. at 270, 120 S.Ct. at 1378, quoting Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 2415, 110 L.Ed.2d 301, (citation omitted). The Supreme Court in J.L. distinguished the White case, because the anonymous tip in White not only described the suspect but also predicted that she would leave an apartment building at a specified time, 1 swould enter a particularly described car, and would drive to a named motel. The Supreme Court stated that once the police in White were able to observe that the informant had accurately predicted the suspect’s future behavior, it became reasonable for the police to think that the tipster had inside knowledge about the suspect. Therefore, the police were entitled to rely on the tipster’s assertion that the suspect was in possession of cocaine and could properly conduct an investigatory stop.

In J.L. the United States Supreme Court stated that the White case was a “borderline” case. 529 U.S. at 271, 120 S.Ct. at 1379. The Supreme Court found that the tip in J.L. “lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case.” Id. The Supreme Court in J.L. further stated:

The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.... All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.

Id. The Supreme Court concluded that “[i]f White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.” Id. Therefore, in J.L. the Supreme Court held that the Supreme Court of Florida was correct in holding that there was no basis for the investigatory stop of J.L.

In the Robertson case the Louisiana Supreme Court was presented with a situation in which an NOPD officer received an anonymous telephone call from a hotline operated by the Bureau of Alcohol, Tobacco, and Firearms (the “ATF”). The caller informed the officer that a person named “Will,” who drove a dark |flgreen Pontiac Grand Am with very darkly tinted windows, was involved in the sale of narcotics in the Magnolia Housing Development. Will was described as being a black male with a very dark complexion, who was short and appeared to be a juvenile. The caller also said that the car would be parked in a certain block when Will was not delivering narcotics.

The NOPD officer and an ATF agent went to the block where the ear was said to be parked. AVhile they were preparing to set up surveillance, they observed the vehicle leave the driveway where it was parked. They then followed the vehicle until the driver exited it. WTien the driver exited the vehicle, the NOPD officer and the ATF agent saw that he matched the description of “Will,” and they approached him. When “Will” stated that his name was William Robertson, he was informed that he was under investigation for narcotics law violations. A canine unit was called to the scene, and when a dog detected the odor of narcotics emanating from the vehicle, the NOPD officer entered the vehicle and discovered a plastic bag filled with crack cocaine.

The issue in the Robertson case was whether the anonymous tip, as it was corroborated by the NOPD officer and the ATF agent, was sufficient to furnish a reasonable suspicion of criminal activity. The Louisiana Supreme Court stated:

In the instant case, it is true that the officers were able to corroborate certain aspects of the anonymous tip, including defendant’s name, his physical description and the location of the described vehicle. The tip, however, contained no predictive information from which the officers could reasonably determine that the informant had “inside information” or a “special familiarity” with the defendant’s affairs.

97-2960, p. 5, 721 So.2d at 1270. Therefore, the Supreme Court found that there were no reasonable grounds for the NOPD officer and the ATF agent to believe | inthat the informant possessed reliable information about the alleged illegal activities. The Supreme Court held that there was no reasonable suspicion to detain Mr. Robertson.

In another case decided by the Louisiana Supreme Court, State v. Johnson, 01-2436 (La.App. 4 Cir. 1/25/02), 806 So.2d 647, the Supreme Court did find that an anonymous tip led to a lawful seizure of evidence. In Johnson, however, an investigatory stop was not made. Rather, based on an anonymous tip, police officers simply engaged a suspect in conversation without signaling him to stop and without asserting any authority over him. The suspect then panicked, and discarded a paper bag containing contraband. The Supreme Court held that the paper bag was lawfully seized after it was discarded by the suspect.

In addition to the United States Supreme Court and the Louisiana Supreme Court, this Court has also considered whether an anonymous tip can be a valid basis for an investigatory stop. In State v. Boson, 99-1984 (La.App. 4 Cir. 1/17/01), 778 So.2d 687, based on complaints of drug trafficking in the area, NOPD officers were instructed by their supervisor to conduct a narcotics investigation at the Friendly Inn on Chef Menteur Highway. The officers were told that two black males were distributing narcotics from the inn, and they were to look for a white Ford LTD at that location.

When the police officers arrived at the inn’s parking lot, they saw two males entering a white Ford LTD. The officers approached the LTD, ordered the men to exit the car, and patted down the men to determine whether they were armed. During the pat down of one of the men, one of the officers felt a bulge and saw some money in the man’s pocket. One of the officers knew from experience that drugs are sometimes stored within paper currency. The man was ordered to empty |nhis pockets, and when he placed a roll of money from his pocket on top of the police vehicle, it began to blow away. While the money was blowing away, the man tried to discard a plastic bag containing crack cocaine, which was seized.

This Court in Boson found that the officers were provided with little information from the supervisor who told them to go to the Friendly Inn. There was no testimony regarding the source of the information upon which the supervisor instructed the officers to go to the inn and look for a white Ford LTD. Therefore, this Court assumed that the informant was unknown and untested. When the officers arrived at the inn and spotted two black men with a white Ford LTD, there was no suspicious activity occurring. Based on those facts, this Court determined that the officers did not have a reasonable suspicion to stop the two men. Thus, the evidence seized was required to be suppressed.

In State v. Jones, 02-1168 (La.App. 4 Cir. 1/29/03), 839 So.2d 377, this Court again considered whether, based on an anonymous tip, there was reasonable suspicion to conduct an investigatory stop. A police officer testified that he responded to a dispatch call stating that a black male wearing a yellow shirt and blue shorts, who was in the 3000 block of Mandeville Street, had a gun in his possession. When he arrived on the scene, the officer observed several people on the side of the street, and he saw a man wearing a yellow shirt and blue shorts. When the officer exited his vehicle and began to approach the man, the man began to walk away while appearing to be nervous and confused. The officer asked the man to stop, but the man walked away faster. When the officer caught up with the man, the officer asked the man to place his hands on a wall so that a pat down for weapons could be conducted for the officer’s safety. During the search, a loaded handgun was found and seized.

li;>This Court determined that the officer had a sufficient basis upon which to conduct an investigatory stop and to frisk the man. This Court reasoned that when coupled with the anonymous tip, the fact that the man appeared nervous and confused and walked away, walking even faster when the officer spoke to him, created the reasonable suspicion needed for an investigatory stop.

In the instant case an anonymous tip was relayed to Detective Perez. The tipster gave the names of two men, described what they were wearing, said that they were walking together, and asserted that the two men were wanted in a shooting. The only reliable information that was given by the tipster was Mr. Herrington’s name and a description of the clothes he was wearing. Although Mr. Herrington was walking near the location where he was said to be walking, he was alone, and he was not walking with another person as the tipster had said he was. Additionally, there was no predictive information given about Mr. Herrington’s future actions, and the information that Mr. Herrington and the person with whom he was supposed to be walking were wanted in connection with a shooting was false. Further, Mr. Her-rington did not appear nervous when Detective Perez confronted him, and he fully cooperated with the police. No surveillance was conducted, and there was no corroboration of the information given by the tipster.

Based on these facts and circumstances, we find that the investigatory stop of Mr. Herrington was not justified. Therefore, the weapon that Mr. Herrington was carrying was illegally seized. The trial court erred in failing to grant Mr. Herrington’s motion to suppress the evidence. This assignment of error has merit.

| ^Assignment of Error Number Two: If this Court cannot reverse on the merits the district court’s ruling denying the motion to suppress, it must vacate that ruling in light of the unavailability of a hearing transcript.

We have determined that Mr. Herring-ton’s conviction should be reversed. Therefore, we need not address this assignment of error.

DECREE

Mr. Herrington’s conviction is hereby reversed. This matter is remanded to the trial court for further proceedings consistent with this opinion.

CONVICTION REVERSED AND REMANDED.

      . La. R.S. 14:95.1(A) reads in relevant part:
      A. It is unlawful for any person who has been convicted of ... any violation of the Uniform Controlled Dangerous Substances Law which is a felony ... to possess a firearm or carry a concealed weapon.

      . Mr. Herrington was tried and convicted a week before Hurricane Katrina, which accounts for the length of time between his trial and his sentencing.


text:
    Calvin BARNES v. PLAQUEMINES PARISH SOLID WASTE.
    No. 2006-CA-1638.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.

      John B. Fox, Bridgette D. Kaczmarek, John Fox & Associates, L.L.C., New Orleans, LA, for Appellee, Calvin Barnes.
    Michael L. Mullin, Assistant Parish Attorney, Plaquemines Parish Government, Belle Chasse, LA, for Appellant, Plaque-mines Parish Government.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

| t This case involves a workers’ compensation claim filed by the plaintiff, Calvin Barnes, against Plaquemines Parish Solid Waste (the “Employer”). Judgment was rendered in favor of Mr. Barnes, and the Employer is appealing.

FACTS AND PROCEDURAL HISTORY

Mr. Barnes was a sanitation worker. He sustained injuries on August 14, 2003, when the support step of a garbage truck that he was riding collapsed, causing him to.fall onto the pavement below. The driver of the truck continued driving the truck forward, dragging Mr. Barnes approximately ten feet before the truck stopped. Mr. Barnes was injured as a result, and he sought medical treatment from a number of medical providers.

On December 18, 2003, Mr. Barnes filed a disputed claim for workers’ compensation. The disputed claim was subsequently amended to allege that Mr. Barnes’ workers’ compensation benefits were wrongfully terminated.

| ¡.The parties submitted -the matter to the workers’ compensation judge on briefs, and they also entered into a consent judgment on several issues. A judgment was rendered on August 17, 2006.

The judgment held that Mr. Barnes suffered a compensable work injury on August 14, 2003. The judgment also held that the Employer failed to controvert the entitlement to payment of the medical bills of West Jefferson Anesthesia Group (“West Jefferson”) and George Van Worm-er, D.C. and for physical therapy and that the Employer arbitrarily and capriciously failed to pay timely the medical bills for those providers and services. The judgment further held that Dr. Van Wormer’s medical bill was reasonable and necessary and must be paid according to the workers’ compensation fee schedule. Finally, the judgment ordered that a penalty in the amount of $6,000.00 was to be assessed against the Employer and that attorney’s fees in the amount of $4,000.00 were to be awarded.

The Employer is now appealing the penalty award of $6,000.00 and the attorney’s fees award of $4,000.00. Additionally, the Employer is claiming that the workers’ compensation judge erroneously found that the Employer was arbitrary and capricious in paying Dr. Van Wormer only the $750.00 statutory amount set forth in La. R.S. 23:1142(B)(1), which provides in relevant part that “each health care provider may not incur more than a total of seven hundred fifty dollars in nonemergen-cy testing or treatment without the mutual consent of the payor and the employee. ...”

DISCUSSION

Standard of Review

In Winford v. Conerly Corp., 04-1278, p. 15-16 (La.3/11/05), 897 So.2d 560, 569-570, the Louisiana Supreme Court discussed the appellate standard of preview to be applied in workers’ compensation cases. The Supreme Court stated that such cases are subject to the manifest error or clearly wrong standard of review. The appellate court is required to determine whether the factfinder’s conclusions were reasonable. Where there are two permissible views of the evidence, the factfinder’s choice between the two views cannot be manifestly erroneous or clearly wrong. Therefore, even if an appellate court is convinced that it would have weighed the evidence differently if it had been the trier of fact, the appellate court may not reverse the fact-finder’s findings of fact if they are reasonable in light of the record reviewed in its entirety.

In Dordain v. Anthony’s Seafood & Lobster House, 03-0900, p. 7 (La.App. 4 Cir. 11/05/03), 860 So.2d 1166, 1170, this Court stated that a decision to award penalties and attorney’s fees is a factual determination. Such a decision should, therefore, not be disturbed on appeal unless it is clearly wrong. Id.

Assignments of Error

Assignment of Error No. 1: The award of $6,000.00 as penalties for the untimely payment to West Jefferson Anesthesia Group and the non-payment to Dr. Van Wormer exceed the maximum of $2,000.00 per health care provider set forth in La. R.S. 2S:1201(F).

In the instant case the workers’ compensation judge awarded $6,000.00 in penalties against the Employer. La. R.S. 23:1201(E) provides that “[m]edical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” La. R.S. 23:1201(F) provides in relevant part:

Failure to provide payment ... shall result in the assessment of a penalty in an amount up to the | ¿greater of twelve percent of any unpaid ... medical benefits, or fifty dollars per calendar day for each day in which any and all ... medical benefits remain unpaid ... together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim.

In the instant case the judgment named two medical providers whose bills were not paid timely in accordance with La. R.S. 23:1201(E). The providers were West Jefferson and Dr. Van Wormer.

In the case of West Jefferson, on March 30, 2004, the workers’ compensation insurer received West Jefferson’s bill for the medical services that were rendered to Mr. Barnes, and the bill was paid on June 21, 2004. Thus, the bill was paid twenty-one days beyond the sixty-day payment period permitted by statute. The penalty for the late payment under La. 23:1201(F) should have been $50.00 per day for 21 days, or a total of $1,050.00.

In the case of Dr. Van Wormer, he was paid the statutory maximum of $750.00 in accordance with La. R.S. 23:1142(B)(1). The workers’ compensation judge, however, found that the treatments given by Dr. Van Wormer were “reasonable and necessary.”

Our review of the record reflects that Dr. Van Wormer was sent a letter dated October 6, 2003, in which he was requested (1) to advise the workers’ compensation insurer’s utilization review company whether the treatment provided for Mr. Barnes was related to an acute injury or, to an exacerbation of a pre-existing condition and (2) to describe the medical necessity of his treatment plan as it ^related to Mr. Barnes’ August 14, 2003 injury. Dr. Van Wormer responded to the October 6, 2003 letter in a reply that was dated October 24, 2003, and the questions raised in the October 6, 2003 letter were generally addressed. Dr. Van Wormer stated that Mr. Barnes’ treatment was for the injuries he sustained on the job on August 14, 2003, and he set forth his recommended treatment plan. Dr. Van Wormer additionally noted the amount of improvement in Mr. Barnes’ condition since he had been treated by Dr. Van Wormer.

Based on the record before us, we conclude that the workers’ compensation judge was not clearly wrong in concluding that the medical treatment provided by Dr. Van Wormer was reasonable and necessary. The record also reflects that Dr. Van Wormer’s bills were submitted to the insurer but were never paid except for the payment of the $750.00 statutory amount under La. R.S. 23:1142(B)(1). We, therefore, find that the workers’ compensation judge properly assessed a penalty in the maximum amount of $2,000.00 in connection with the nonpayment of Dr. Van Wormer’s bills.

Although the workers’ compensation judge found that Mr. Barnes was entitled to the payment of his medical bills for “physical therapy,” there is no named provider of these services. Westbank Health Care Center (“Westbank”) provided physical therapy to Mr. Barnes, but the record reflects that the bill from Westbank was received by the insurer on April 11, 2005, and that it was paid on May 18, 2005, well within the statutory time period for paying the bill. Therefore, no penalty should have been imposed in connection with the physical therapy bill from Westbank.

|fiWe find that a total of $3,050.00, rather than $6,000.00 should have been awarded in penalties. We hereby award a penalty in the amount of $2,000.00 in connection with the non-payment of Dr. Van Worm-er’s bill and $1,050.00 in connection with the late payment of the bill submitted by West Jefferson.

Assignment of Error No. 2: The award of $4,000.00 in attorney’s fees is manifestly erroneous and an abuse of discretion.

The Employer contends that because the penalties awarded in the instant case were excessive and must be reduced, the award of attorney’s fees must likewise be reduced. We find this contention to be without merit.

La. R.S. 23:1142(D) provides in relevant part as follows:

If the payor has not consented to the request to incur more than a total of seven hundred fifty dollars for any and all nonemergency diagnostic testing or treatment when such consent is required by this Section, and it is determined by a court ... that the withholding of such consent was arbitrary and capricious, or without probable cause, the employer ... shall be liable to the employee ... bringing the action for reasonable attorney fees related to this dispute....

(Emphasis added.)

In Moore v. City of New Orleans, 02-1036, p. 13-14 (La.App. 4 Cir. 1/29/03), 839 So.2d 380, 389, this Court stated that “even though the primary consideration in the imposition of attorney’s fees [in workers’ compensation cases] is to discourage certain offensive behavior on the part of the employer or insurer, the amount of statutory attorney’s fees awarded is intended to fully compensate the employee’s attorney, thereby benefiting the employee, for his services rendered in connection with the litigation.” (Emphasis in original.) In the instant case the workers’ compensation judge determined that the medical bills addressed in the judgment were all reasonable. Thus, there was no probable cause to withhold |7payment for the medical services. Therefore, Mr. Barnes is entitled under La. R.S. 23:1142(D) to an award of attorney’s fees. Because we find that the amount of the award of attorney’s fees was neither clearly wrong nor manifestly erroneous based on the legal work evidenced by the record before us, we hereby affirm the award of attorney’s fees in the amount of $4,000.00.

Assignment of Error No. S: Based upon Dr. Van Warmer’s lack of cooperation in responding to the request for information for the insurance administrator, it was manifestly erroneous to find that the defendant employer was arbitrary and capricious in paying Dr. Van Wormer only the $750.00 fee for unauthorized treatment.

As we have discussed in connection with the first assignment of error, we do not find that Dr. Van Wormer failed to cooperate in responding to the request for information by the workers’ compensation insurer’s utilization review company. This assignment of error is, therefore, without merit.

DECREE

The award of $6,000.00 in penalties is hereby reduced to $3,050.00. The remainder of the judgment of the workers’ compensation judge is hereby affirmed.

AMENDED IN PART AND AFFIRMED AS AMENDED.

      . The record reflects that Plaquemines Parish Solid Waste is also known as Plaquemines Parish Government.

      . We note that Mr. Barnes’ brief contends that additional penalties should have been awarded for the Employer's failure to pay timely two other health care providers, but we will not consider this issue, because Mr. Barnes neither appealed the judgment nor filed an answer to the appeal.

      . The fifty dollar per day penalty in the case of these providers would be greater than a penalty of twelve percent of the unpaid bill.

      . Dr. Van Wormer’s bill was unpaid for more than forty days, so the maximum penalty is applicable.


author: EDWIN A. LOMBARD, Judge.

text:
    Marjorie GARZA v. The LOUISIANA STATE RACING COMMISSION and the Old Evangeline Downs, L.L.C.
    No. 2007-CA-0250.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.
    Jude C. Bursavich, Scott N. Hensgens, Marc R. Merrill, Christine Lipsey, Peter J. Butler, Lauren M. Smith, Breazeale, Sachse & Wilson, LLP, Baton Rouge, LA, for Plaintifi/Appellant.
    Kyle Schonekas, Schonekas, Winsberg, Evans & McGoey, L.L.C., New Orleans, LA, and John W. Kolwe, Perret Doise, APLC, Lafayette, LA, for The Old Evangeline Downs, L.L.C.
    Charles C. Foti, Jr., Attorney General, Kim Raines Chatelain, Assistant Attorney General, New Orleans, LA, for Louisiana State Racing Commission.
    C. James Gelpi, Clark Richard, David S. McFadden, Gelpi And Associates, APLC, New Orleans, LA, for Louisiana Horseman’s Benevolent and Protective Association, 1993, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

This appeal is from a trial court judgment granting the appellee’s exception of no cause of action and dismissing the appellant’s petition. After review of the record in light of the applicable law and arguments of the parties, we affirm the judgment of the trial court.

Relevant Facts and Procedural History

In 2004, the Louisiana State Racing Commission (“the Racing Commission”) granted a license to the Old Evangeline Downs, L.L.C., (“Evangeline Downs”), a licensed racetrack located in St. Landry Parish, to operate an offtrack pari-mutual betting facility (“OTB”) in Henderson, Louisiana, which is located in St. Martin Parish. Shortly thereafter, a party affiliated with a truckstop video poker casino in St. Martin Parish sought an injunction to prevent Evangeline Downs from offering video poker at its Henderson facility, arguing that although Evangeline Downs operated a facility in St. Martin Parish which offered both video poker and offtrack betting prior to 1996, neither that facility or any other facility that offered both video poker and offtrack betting existed in St. Martin Parish contemporaneously with the date 1996 that the amendment to La. Const. Art. XII, § 6 became effective and therefore another referendum in St. Martin Parish was necessary before such a facility could be licensed and authorized in St. Martin Parish. The trial court initially granted injunctive relief but the Third Circuit, explicitly rejecting the plaintiffs interpretation of the La. Const, art. XII, § 6, reversed the trial court and dismissed the plaintiffs petition. See Michael A. Castille v. Old Evangeline Downs, L.L.C, 2005-1251 (La.App. 3 Cir. 4/05/06), 927 So.2d 598. Six weeks later, on August 3, 2006, Marjorie Garza, a resident of St. Martin Parish, filed this lawsuit in Orleans Parish against the Racing Commission and Evangeline Downs, seeking to have the license withdrawn based on the same argument rejected by the Third Circuit, i.e., although an OTB existed in St. Martin Parish prior to 1996, because there was no OTB in existence in St. Martin Parish contemporaneously with the date in 1996 that the amendment to La. Const. Art. XII, § 6 became effective, it was error to grant the license prior to conducting another referendum on the issue in St. Martin Parish.

On August 30, 2006, Evangeline Downs filed its peremptory exceptions, including the exception of no cause of action underlying this appeal, affirmative defenses, answer, and request that the exceptions be set for hearing. In addition, an answer and peremptory exceptions were filed by the Racing Commission on August 28, 2006, and a petition in intervention and memorandum in support of Evangeline Downs’ exceptions was filed by the Louisiana Horsemen’s Benevolent and Protective Association (“the Horsemen’s Association”) on November 8, 2006.

After a hearing on the exception held on November 17, 2006, the trial court signed a judgment on December 7, 2006, granting Evangeline Downs’ exception of no cause of action and dismissing Ms. Garza’s petition.

Ms. Garza filed a timely motion for a devolutive appeal.

Discussion

“The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition and is triable on the face of the papers; for the purpose of determining the issue raised by this exception, the well-pleaded facts in the petition and any annexed documents must be accepted as true.” Kuebler v. Martin, 578 So.2d 113, 114 (La.1991) (citations omitted).

In this appeal, the plaintiff contends that she stated sufficient law and facts in her petition to state a cause of action that the Racing Commission violated La. Const. Art. XII, § 6(C) in issuing the license for an OTB to Evangeline Downs without the requisite referendum in St. Martin Parish. However, the plaintiff does not dispute that the voters of St. Martin Parish approved the establishment of an OTB in a special election held on October 7, 1989, or that Evangeline Downs operated such a facility in Stephensville, St. Martin Parish, Louisiana, from September 1993 until December 1995. Rather, she argues — as did the plaintiff in Cast-oille — that because no OTB existed in St. Martin Parish on October 15, 1996, the date La. Const, art. XII, § 6(C)(1) became effective, the voters of St. Martin Parish must once again approve the establishment of offtrack wagering facilities in St. Martin Parish before the Racing Commission can issue a license for an OTB in St. Martin Parish.

In 1996, Article 12, 6 of the Louisiana Constitution, was amended to add paragraphs (C)(1)(a) and (b), which provides as follows:

(C) Gaming, Gambling, or Wagering Referendum Elections. (l)(a) No law authorizing a new form of gaming, gambling, or wagering not specifically authorized by law prior to the effective date of this Paragraph shall be effective nor shall such gaming, gambling, or wagering be licensed or permitted to be conducted in a parish unless a referendum election in a proposition to allow such gaming, gambling, or wagering is held in the parish and the proposition is approved by a majority of those voting thereon.
(b) No form of gaming, gambling, or wagering authorized by law on the effective date hereof shall be licensed or permitted to be conducted in a parish in which it was not heretofore being conducted, except licensed charitable gaming which may be conducted in any parish provided it is conducted in compliance with the law, pursuant to state license or permit unless a referendum election on a proposition to allow such gaming, gambling, or wagering is held in the parish and the proposition is approved by a majority of those voting thereon.

La. Const, art. § XII, 6(C)(1)(a) (emphasis added).

The plaintiffs argument, while perhaps creative in its first incarnation, is without merit. We adopt the analysis of the Third Circuit in Castille and find that the term “heretofore” should be interpreted to mean “on or before” the date the amendment became effective. Castille, 2005-1251, pp. 5-8, 927 So.2d at 601-603. Accordingly, we find no error in the trial court’s judgment granting the appellee’s exception of no cause of action and dismissing the appellant’s petition.

Conclusion

The judgment of the trial court is affirmed.

AFFIRMED.

      . According to the brief filed by counsel for Evangeline Downs, the plaintiff in this case was an employee at a St. Martin truckstop, but the Third Circuit indicates that the plaintiff was the owner of the truckstop. See Cas-tille, 2005-1251, p. 2, 927 So.2d at 600.

      . Ms. Garza is employed by Atchafalaya Gold, a truck stop video poker casino in Henderson, Louisiana, and filed this lawsuit at the request and expense of her employer.

      . Pursuant to La.Rev.Stat. 4:145.1, the Racing Commission may be sued only in the city of New Orleans, Parish of Orleans.

      . Although the appellant submits a portion of the hearing transcript wherein the trial judge instructed counsel for the appellee to ''[g]ive me proposed reasons, and I’ll sign them,” the record contains neither reasons for judgment nor a transcript of the hearing.


author: DAVID S. GORBATY, Judge.

text:
    Gregory Lee COOPER and Deetra F. Cooper v. GREYHOUND LINES, INC., Harold Nash and ABC Insurance Company.
    No. 2006-CA-1655.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.
    Roy A. Raspanti, Metairie, LA, for Plaintiff/Appellant.
    Shannon J. Gremillion, Bolen, Parker & Brenner, Ltd., Alexandria, LA, for Defen-danf/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.)
   DAVID S. GORBATY, Judge.

| [Plaintiffs/appellants, Gregory Lee Cooper and Deetra F. Cooper, appeal a judgment confirming a jury verdict in favor of defendants, Greyhound Lines, Inc., and Harold Nash. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY:

On December 17, 2004, Gregory Lee Cooper was a passenger on a Greyhound Lines bus being driven by Harold Nash. According to Mr. Cooper, while driving through Lafayette, Louisiana, Mr. Nash drove the bus over a curb causing Mr. Cooper to incur injuries to his left elbow. According to Mr. Nash, no such incident occurred.

Following a trial, the jury answered interrogatories. The jury specifically answered “no” to the following interrogatory:

Do you find that an accident occurred on December 17, 2004, while Mr. Cooper was riding a Greyhound bus?

Because the jury answered in the negative, it was not required to answer any further interrogatories. A judgment confirming the jury’s verdict was rendered on September 14, 2006. This appeal followed.

^DISCUSSION:

Attached to appellants’ brief filed in this Court were two exhibits, Exhibit “A,” which consisted of excerpts from a deposition given by Mr. Nash, and Exhibit “B,” allegedly reports of accidents in which Mr. Nash was previously involved. Defendants filed a Motion to Strike these exhibits, and this Court granted the motion finding that the exhibits were not part of the record before this Court. Accordingly, we did not consider these documents while reviewing this appeal.

Appellants make one assignment of error: Did the trial court err in refusing to allow plaintiffs to impeach the bus driver, Harold Nash, regarding his credibility and his past driving record?

Appellants called Mr. Nash to testify during their case-in-chief. The following dialog transpired:

Q. In those 13 years that you had driven a bus for Greyhound, had you been involved in any other accidents during that period?
Mr. Gremillion [counsel for defendants]: Judge, I’m going to object. His history of his work life is not admissible.
The Court: Sustained.
Q. Was there ever a time in your 13 years that another passenger had been hurt on your bus?
Mr. Gremillion: Judge, same objection.
The Court: Sustained.

Counsel for appellants asked no further questions of Mr. Nash concerning his work/accident history, no evidence was introduced, and no evidence was proferred.

Appellants argue that if they had been allowed to impeach Mr. Nash at trial with his previous deposition and his accident history, the jury might have reached a | sdifferent verdict. Unfortunately for appellants, there is no way for this Court to evaluate any such evidence because there is none of record before this Court.

It is well settled that an assignment of error cannot be based upon a ruling that excludes evidence unless a substantial right of a party is affected and the substance of the evidence was made known to the trial court by counsel. La.Code Evid. art. 103 A(2); Hurts v. Woodis, 95-2166 (La.App. 1 Cir. 6/28/96), 676 So.2d 1166, 1175. As noted above, once defense counsel objected to the line of questioning, counsel for appellants made no attempt to introduce or proffer the documents they now want this Court to review. Because that evidence is not properly before this Court, we cannot review same.

Accordingly, for the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.