author: JAMES F. MCKAY III, Judge.

text:
    SOUTH PETERS PLAZA, INC. v. P. J., INC., William Colacurcio, Jr., The Estate of William “Bill” Colacurcio, III and Kristi Colacurcio.
    No. 2005-CA-1050.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Henry L. Klein, Klein-Daigle, LLC, and Leonard L. Levenson, Weigand & Leven-son, New Orleans, Louisiana, for Plain-tiffiAppellant.
    Terrill W. Boykin, Kriste L. Taitón, Bor-denave Boykin & Ehret, New Orleans, Louisiana, for Defendant/Appellee, P.J. Inc.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   JAMES F. MCKAY III, Judge.

_JjOn May 2, 2000, South Peters Plaza, Inc. (lessee) entered into a five-year lease with P.J., Inc. (lessor) for property located at 941 Decatur Street in New Orleans at a monthly rental of $9,500.00 with an unrestricted option to renew for an additional five-year period on the same terms as the primary period and a first right of refusal.

On April 24, 2004, a fire occurred on the premises which rendered the property unusable for approximately two months. The lessee undertook to repair the damages with the approval of the lessor and its insurer, Certain Underwriters at Lloyds (Lloyds). However, the property was not owned by the lessor, but by a different entity, Papa Joe’s Inc. In due course, Lloyds paid Rick Colacurcio the $77, 630.59 expended by the lessee in repairing the fire damages. On September 8, 2004, the lessee demanded that Mr. Colacurcio turn over the $77,630.59 payment from Lloyd’s and extinguish lessee’s obligation to pay rent during the two-month period required to make repairs. Mr. Colacurcio refused.

| ¡.On December 9, 2004, the lessee filed an action for damages against P.J., Inc., William Colacurcio, Jr., the estate of William “Bill” Colacurcio, III and Kristi Co-lacurcio to recover monies paid for the benefit of another and for declaratory judgment recognizing its lease and option rights under the original contract with P.J., Inc. On December 15, 2004, the lessee exercised its option to renew for an additional five years. The renewal was accepted by P.J.’s representative, Elizabeth Wortmunn. The lessee sent a check for the January 2005 rent with the notation, “Paying under protest. Business was closed May & June 2004 due to fire.” The check, however, was not signed. Rental payments were made for February and March 2005. On March 7, 2005, P.J.’s counsel wrote to lessee, requesting possession of the property. On March 11, 2005, the defendants moved for leave to file a petition for reconventional demand, which the trial court granted. The recon-ventional demand was based on the rent not being paid, the premises being subleased without express authority, and the fire damage being repaired without the defendants’ consent. On April 1, 2005, P.J. filed a rule to show cause why its petition for reconventional demand for eviction should not be granted. The return on the service shows that the rule was personally served on the lessee’s attorney, Henry Klein, by Deputy Leo Gant on April 8, 2005 scheduling a hearing on April 12, 2005. However, Deputy Gant’s affidavit indicates that he did not in fact serve the notice as indicated. At the hearing, the lessee raised several defenses including that the parties seeking eviction were not the owners of the property, no notice to the lessee of demand for property, and no service on the lessee. The trial court, Rhowever, ordered summary eviction. It is from this judgment that the lessee now appeals.

On appeal, the lessee raises the following assignments of error: 1) the district court erred in holding an eviction hearing less than three days after alleged service and in spite of the fact that no notices were ever served on the lessee; 2) the district court erred in allowing non-owners to proceed for eviction when the issue of ownership was highly contested and the defendants provided deceptive discovery answers one day before the eviction hearing; 3) the district court erred in ordering eviction of a tenant which was owed $77,630.59 by the alleged owner for repairs resulting from a fire and which had dutifully paid rent at $9,500.00 per month since May 2, 2000, for a total of rent payments of $522,500.00; 4) the district court erred in holding a summary hearing on a “recon-ventional demand” for eviction when the lessor had never caused written notice to be made upon lessee; 5) the district court erred in ordering eviction when the lessee was depositing $9,500.00 rental payments in the registry of the court; and 6) the district court erred in failing to enforce the lease provisions requiring remission of rent as a consequence of the lessee’s expending at least $77,630.59 on repairs to the property resulting from a fire.

In the instant case, P.J., on April 1, 2005, filed a rule to show cause why its petition for reconventional demand for eviction should not be granted. Although the return on the service shows that the rule was personally served on the lessee’s attorney, Henry Klein, by Deputy Leo Gant on Friday, April 8, 2005, Deputy Gant Rnever actually served Mr. Klein. Even if Mr. Klein had been served on April 8, 2005, a hearing on April 12, 2005 would have been improper under La. C.C.P. art. 4732. This article provides that the hearing should not be held earlier than the third day after service. In this case, it would have been on the second day if in fact service had been made. As such, this hearing was improper. Literal compliance with statutory requirements, as they relate to actions of lessor, lessee and trial judge with regard to eviction proceedings, are sacrosanct to the validity of such proceedings. Herman v. Style Line Greetings, Inc., 289 So.2d 876 (La.App. 4 Cir. 1974).

As this hearing was improper and invalid, we need not review the appellant’s other assignments of error. For the foregoing reasons, the judgment of the court below is vacated.

JUDGMENT VACATED

      . The three day service period should be calculated in legal/working/business days since it is less than seven days. See Lichtentag v. Burns, 258 So.2d 211 (La.App. 4 Cir.1972).


source: Caselaw Access Project

author: MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Juanita SMITH and Michael Pollard v. Ricardo VAZQUEZ, Jr. and State Farm Mutual Automobile Insurance Company.
    No. 2005-CA-0619.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Tamara Kluger Jacobson, New Orleans, LA and Robert G. Harvey, Sr., New Orleans, LA, for Plaintiffs/Appellees.
    Mark E. Hanna, McCranie Sistrunk An-zelmo Hardy Maxwell & McDaniel, Me-tairie, LA, for Defendants/Appellants.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS SR., Judge MICHAEL E. KIRBY).
   MICHAEL E. KIRBY, Judge.

| defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), appeals the trial court judgment in favor of plaintiffs, Juanita Smith and Michael Pollard.

On July 29, 2001, a collision occurred at the intersection of Elysian Fields Avenue and Prentiss Street in New Orleans between vehicles driven by plaintiff, Juanita Smith, and defendant, Ricardo Vasquez, Jr. All parties agree that Elysian Fields Avenue is a four-lane street, with two lanes in each direction separated by a median, and a lane designated as a bus stop that is adjacent to the right curb. Pren-tiss Street is a two-lane street, with one lane in each direction separated by a median. Both drivers were traveling in the same direction on Elysian Fields, and both were attempting right hand turns onto Prentiss Street when the accident occurred.

Prior to her attempted right turn, Ms. Smith was stopped for a red light in the lane immediately to the left of the lane closest to the curb, which was designated as |j>a bus stop. There was conflicting testimony on the issue of whether or not Ms. Smith had engaged her right turn signal. Ms. Smith claimed that she had her turn signal on; Mr. Vasquez and his passenger claimed she did not. Mr. Vasquez approached Ms. Smith’s vehicle from behind, and then veered into the lane closest to the curb in order to accomplish a right turn onto Prentiss Street. As Mr. Vasquez’s vehicle was on the right side of Ms. Smith’s vehicle, both parties attempted to execute right hand turns onto Pren-tiss. This resulted in Mr. Vasquez’s vehicle striking the right passenger side of Ms. Smith’s vehicle.

Ms. Smith and her passenger, Michael Pollard, filed suit against Mr. Vasquez and his insurer, State Farm, claiming damages for injuries allegedly sustained in the accident. Following trial, the trial court rendered judgment in favor of plaintiffs and against State Farm. The court awarded Ms. Smith $5,500.00 in general damages and $1,847.00 in special damages, and awarded Mr. Pollard $5,000.00 in general damages and $1,757.00 in special damages, along with court costs and interest from date of judicial demand.

In its judgment, the court noted that both plaintiffs and Mr. Vasquez were traveling on Elysian Fields Avenue and were turning right onto Prentiss Street when the accident occurred, and that the plaintiffs were already stopped for the red light when Mr. Vasquez’s vehicle approached them from behind. The court found that Ms. Smith was using her turn signal as she turned, and that Mr. Vasquez came from behind and turned from the “bus lane” striking plaintiffs’ car. The trial court found that the accident occurred as -a result of the negligence of Mr. Vasquez in | ^making an improper turn by creating a third lane on a two lane street. Additionally, the court found that Mr. Vasquez attempted to overtake plaintiffs’ vehicle in order to make the right turn in advance of plaintiffs.

State Farm appealed the trial court judgment. On appeal, State Farm first argues that the trial court erred in rendering judgment against it because its insured, Mr. Vasquez, was executing a right turn as close to the curb as possible in compliance with the laws of the City of New Orleans and the State of Louisiana. Therefore, State Farm argues that it should not be held liable for this accident.

State Farm argues that the trial court’s judgment is contrary to this Court’s decision in Winfield v. Dih, 2001-1357 (La.App. 4 Cir. 4/24/02), 816 So.2d 942. Specifically, State Farm points to this Court’s acknowledgment in the Winfield case that both New Orleans Code § 154-436 and La. R.S. 32:101(a) require that right turns be made as close as practicable to the right-hand curb or the edge of the roadway. Defendants moved for an involuntary dismissal at the conclusion of trial relying on the Winfield case, but the trial court denied the motion, noting that in Winfield the bus stop was in the middle of the block rather than at the corner as in the instant case.

Aside from the location of the bus stop in the middle of the block rather than on the corner, the facts of the Winfield case are very similar to that of the instant case. Both drivers in that case simultaneously attempted to make a right turn at an intersection in New Orleans. Mr. Win-field’s car was in the lane immediately to the left of the lane marked “No Stopping” and that served as a bus stop, and Mr. Dih’s | ¿vehicle was in the bus stop lane, which was the closest lane to the curb. The trial court found Mr. Dih 100% at fault in the accident, but this Court reversed in part and allocated 50% of fault for the accident to each driver.

This Court agreed with the trial court’s finding that Mr. Dih was at fault for failing to maintain a proper lookout given the fact that Mr. Winfield had almost completed making his right turn when the collision occurred. However, this Court found that the trial court erred in finding fault on Mr. Dih’s part for traveling on the shoulder/bus stop area before making his right turn. This holding was based on the fact that New Orleans Code § 154-875, entitled “Restricted use of a bus stop, livery and taxicab stands,” restricts stopping, standing and parking in a bus stop but does not prohibit traveling in such an area for the purpose of making a turn. Id. at p. 12, 816 So.2d at 950. Therefore, this Court found that Mr. Dih complied with the only relevant ordinance in this situation, which is New Orleans Code § 154-436, requiring that a right turn be made from the lane as close as practicable to the curb. Id. at p. 13, 816 So.2d at 950. This Court assessed Mr. Dih’s liability at 50% for failure to maintain a proper lookout. This Court found Mr. Winfield 50% at fault for failing to see what he should have seen, given that Mr. Dih’s vehicle was to Mr. Win-field’s immediate right as he was stopped at the red light waiting to make his.turn. Id. at p. 13, 816 So.2d at 951.

In the instant case, all parties and witnesses agreed that prior to attempting a right turn, Mr. Vasquez was in the lane closest to the curb that was marked as a bus stop, and Ms. Smith was stopped at a red light in the lane immediately to the left of Isthe lane in which Mr. Vasquez was traveling. Ms. Smith testified that her right turn signal was on, but Mr. Vasquez and his passenger disputed this. Mr. Vasquez stated that he had his right turn signal on, and his passenger corroborated this testimony. All witnesses agreed that Ms. Smith entered the turn ahead of Mr. Vasquez. Ms. Smith stated that Mr. Vasquez’s vehicle was about 50% of the way alongside her vehicle at the time of impact, and Mr. Vasquez and his passenger stated that the Vasquez vehicle was about 75% of the way alongside the Smith vehicle at the time of impact. The impact occurred between the front of the Vasquez vehicle and the middle of the Smith vehicle’s right side.

As noted above, the trial court found Mr. Vasquez 100% at fault for this accident for making an improper turn by creating a third lane on a two lane street and for attempting to overtake Ms. Smith’s vehicle in order to make the right turn in advance of Ms. Smith. However, considering this Court’s holding in Winfield v. Dih, 2001-1357 (La.App. 4 Cir. 4/24/02), 816 So.2d 942, we find that the trial court erred in finding that Mr. Vasquez made an improper turn by turning from the lane also used as a bus stop. By doing so, Mr. Vasquez was in compliance with New Orleans Code § 154-436, which requires that right turns be made from the lane as close as practicable to the curb. As noted in the Winfield case, the section of the New Orleans Code dealing with bus stops does not prohibit a motorist from traveling in that area for the purpose of making a turn. The fact that the bus stop in the Winfield case was in the middle of the block and the bus stop in the instant case was on the corner is a distinction without a difference in our opinion.

| (¡Despite our conclusion that Mr. Vasquez did not make an improper turn by turning from the lane also used as a bus stop, he still bears some fault for this accident for failing to maintain a proper lookout given the fact that Ms. Smith’s vehicle was ahead of his as they both attempted the right turn. Additionally, even though Mr. Vasquez and his passenger testified that Ms. Smith gave no indication that she was going to turn and started to go straight when the light turned green, we find no manifest error in the trial court’s finding that Mr. Vasquez was attempting to overtake Ms. Smith’s vehicle in order to make the right turn in front of Ms. Smith.

As for Ms. Smith, we find that the trial court erred in not assessing any fault for the accident to her. Ms. Smith failed to comply with New Orleans Code § 154-436, which requires that right turns be made from the lane as close as practicable to the curb. Because New Orleans Code § 154-875, dealing with bus stops, does not prevent traveling in a bus stop lane for the purpose of making a turn, Ms. Smith was at fault for not making her turn from that lane.

Our review of the testimony regarding both drivers’ actions in this case leads us to conclude that they were equally responsible for this accident. Accordingly, we reverse the portion of the trial court judgment allocating all fault for this accident to Mr. Vasquez. We hereby allocate 50% fault to both Ms. Smith and Mr. Vasquez.

State Farm also argues that the trial court erred in finding that there was damage to Ms. Smith’s vehicle caused by this accident, and even if there were such 17damage, it was so minimal that personal injury could not have been sustained. It argues further that plaintiffs did not bear their burden of proving by a preponderance of the evidence that there was a causal connection between the accident and their injuries.

We initially note that the trial court judgment does not mention property damage. At trial, Mr. Allen Wilkins, a State Farm damage estimator, gave his opinion that there was only very minor damage to the right side panel of Ms. Smith’s vehicle that was caused by the accident.

Where medical experts and lay witnesses establish that a plaintiff sustained some injuries, the minimal force of the collision causing the injuries is of no material importance. Arceneaux v. Howard, 633 So.2d 207, 210 (La.App. 1 Cir.1993). Although Ms. Smith had a pre-existing condition of rheumatoid arthritis, she testified that she had an increase in pain in her neck, shoulders and upper back after the accident for which she sought treatment. Dr. Sofjan Lamid, a specialist in family medicine, testified by deposition and stated that he treated Ms. Smith following the accident and found that she had decreased range of motion in her neck secondary to pain, along with tenderness and mild spasm. She also complained of shoulder and upper back pain. His diagnosis was cervical and thoracic strain. Dr. Lamid prescribed medication for Ms. Smith and recommended the use of a soft cervical collar, exercise and hot packs.

Mr. Pollard testified that he had pain in his upper left shoulder and upper back following the accident, and he sought treatment for that pain from Dr. Lamid. Dr. Lamid stated that Mr. Pollard had moderate restriction in his range of motion |sin his shoulders and had slight spasm. His diagnosis was shoulder strain and thoracic strain. He prescribed medication and recommended physical therapy.

In this case, evidence presented by plaintiffs and their treating physician, Dr. Lamid, established that plaintiffs suffered injuries that were causally related to the accident. In addition to testifying by deposition, Dr. Lamid also issued reports on both plaintiffs and certified that his opinion is that the accident at issue caused the injuries described by him in his reports. He also certified that the subsequent treatment rendered-for those injuries was medically necessary. The trial court did not err in awarding damages to plaintiffs for injuries sustained in the accident. •

For the above reasons, we affirm the trial court’s judgment in favor of plaintiffs and against State Farm, but we reduce the awards to plaintiffs by 50% to recognize Ms. Smith’s comparative fault in this accident. The parties are to bear their own costs.

REVERSED IN PART; AFFIRMED IN PART; RENDERED.

      . Defendant, Ricardo Vasquez, Jr., State Farm’s insured, also appealed, but the trial court judgment is cast only against State Farm.


author: ROLAND L. BELSOME, Judge.

text:
    In re INTERMENT OF Cleo Satter LoCICERO.
    No. 2005-CA-1051.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Wm. Ryan Acomb, Porteous, Hainkel & Johnson, New Orleans, LA, for Appellant, Allstate Insurance Company.
    Christopher E. Lozes, Lozes & Ponder, Mandeville, LA, for Appellee, Ava Marks.
    Daniel G. Abel, Daniel G. Abel, Inc., Metairie, LA, for Appellees, Estate of Cleo Satter LoCicero and Ramona L. Hedrick.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

[ pístate Insurance Company (“Allstate”) appeals the trial court’s denial of its Petition for Declaratory Judgment.

STATEMENT OF THE CASE/ ACTION OF THE TRIAL COURT

This litigation results from a defamation suit filed by Plaintiff-Appellee Ramona LoCicero Hedrick (“Hedrick”) against her three sisters, Ava Marks (“Marks”), Donna Webre (“Webre”), and Pam Melancon (“Melancon”). Hedrick alleges the facts to be as follows. Cleo Satter LoCicero (“Mrs.LoCicero”) died on January 24, 2004, of natural causes while under the care of her treating physicians in the intensive care unit of St. Elizabeth’s Hospital in St. John the Baptist Parish. Mrs. LoCicero was the mother of Hedrick, Marks, Webre, and Melancon. Shortly after she died, Mrs. LoCicero’s physicians told Hedrick that her mother had died of a heart attack and showed her the diagnostic information which led them to that conclusion. Hedrick, as the Executrix of the Estate, instructed that her mother be brought to Lake Lawn Funeral Home in New Orleans for religious services and burial.

In her petition, Hedrick also alleged the following facts. Since the death of their father four years earlier, defendants We-bre and Melancon were estranged [gfrom their mother. Subsequently, Marks estranged herself as well. On the day of Mrs. LoCicero’s death, Hedrick asked her maternal uncle, Mr. Carl Satter, to contact Webre, Marks, and Melancon and notify them that their mother had died. Almost immediately, defendants Webre, Marks, and Melancon began accusing Hedrick of killing their mother with poison. When they learned that their mother’s body was at Lake Lawn Funeral Home in New Orleans, defendants Webre, Marks, and Me-lancon contacted the funeral director there and began making accusations that Hed-rick had poisoned their mother. Webre, Marks, and Melancon informed the funeral director that they would not agree to any funeral or burial arrangements made by Hedrick, and they would not agree to have their late father’s casket moved over so that their mother could be buried beside him. Webre, Marks, and Melancon also told the funeral director and other personnel at Lake Lawn that they had spoken with the Coroners of St. John the Baptist and of Ascension Parishes, and that they were demanding an autopsy to prove that their sister, Hedrick, had poisoned their mother. They also told the funeral director not to embalm Mrs. LoCicero, so that they could prove the murder.

Hedrick filed an ex parte “Petition for Internment” in Civil District Court in Orleans Parish seeking and eventually obtaining an order allowing Hedrick to proceed with the funeral and burial of her mother, Cleo Satter LoCicero, a resident of St. John the Baptist Parish. Thereafter, Hedrick filed a First Supplemental and Amending Petition for Damages against her three sisters, Ava Marks, Donna Webre and Pam Melancon seeking damages for the alleged defamatory statements made by Hedrick’s estranged sisters.

In her amended petition, Hedrick pleaded that “[d]efendants are liable to petitioner for making knowingly false and defamatory statements against Hedrick Land making these statements to numerous third parties ... Defendants Webre, Marks and Melancon negligently made these defamatory statements with reckless disregard for the falsity of the statements and the injuries that would result therefrom.”

Allstate had issued a policy of homeowners insurance to Ava Marks and her husband Michael J. Marks before the suit was filed. On October 25, 2004, Allstate filed a “Petition for Intervention and Alternatively, Motion for Declaratory Judgment.” In its Petition, Allstate asserted the following affirmative defense:

The Allstate Insurance Company policy of insurance issued to Ava Marks contains a specific policy provision which excludes coverage for any intentional or criminal acts of or to at the direction of any insured, if the loss that occurs may be reasonable (sic) expected to resolve from acts; or is the intent of such acts.

Allstate then asked the trial court to declare the following:

1. That no insurance by Allstate is afforded under its homeowners’ policy to Mr. and Mrs. Marks for the claims made against Ava Marks in the main demand;
2. That Allstate has no obligation to provide coverage to Ava Marks;
3. That Ramona LoCicero Hedrick has no cause of action against Allstate for any intentional or criminal acts of Ava Marks; and,
4. Granting such other relief and further relief as the Court may deem to be just and proper.

The trial court denied Allstate’s petition for declaratory judgment without reasons.

ASSIGNMENTS OF ERROR

Allstate makes two assignments of error:

1. The trial court abused its discretion when it did not rule in favor of Allstate because there was no countervailing testimony or evidence presented by Hedrick or any defendants at the March 4, 2005 trial; and
|42. The trial court abused its discretion by refusing to grant declaratory judgment in favor of Allstate Insurance Company when Allstate’s policy excludes coverage for intentional acts and Ava Marks testified that she did not make any defamatory statements or do anything to cause Plaintiff to incur damages.

STANDARD OF REVIEW

“On appeal, the scope of appellate review is confined to a determination of whether or not the trial court abused its discretion by granting or refusing to render a declaratory judgment. Ricard v. State, 544 So.2d 1310, 1312 (La.App. 4 Cir.1989).” In re Peter, 98-0701, pp. 4-5 (La.App. 4 Cir. 12/23/98); 735 So.2d 665, 667.

LAW AND ANALYSIS

At the outset, we note that Louisiana Code of Civil Procedure article 1871 provides that “[cjourts within their respective jurisdictions may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” (emphasis added). Use of the word “may,” rather than “shall” evidences the legislature’s intent to afford the trial court substantial discretion in deciding whether or not to render declaratory judgment.

Trial courts are vested with wide discretion in deciding whether to grant or refuse declaratory relief. Louisiana Supreme Court Committee on Bar Admissions ex rel. Webb v. Roberts, 2000-2517 (La.2/21/01); 779 So.2d 726; Liberto v. Rapides Parish Police Jury, 95-456 (La.App. 3 Cir. 11/2/95); 667 So.2d 552, rehearing denied. Appellate courts, as well as trial courts, may exercise broad discretionary power to decide whether a suit for declaratory judgment is one in which such relief may be appropriate. Billingsley v. City of Baton Rouge, 95-2162 (La.App. 1 Cir. 4/30/96); 673 So.2d 300, writ denied 1996-1490 (La.9/20/96); 679 So.2d 439. A trial court must render declaratory judgment where such judgment would terminate uncertainty or controversy giving rise to proceeding; however, within its sound discretion, it may choose or refuse to render declaratory judgment which would not terminate such uncertainty. Morial v. Guste, 365 So.2d 289 (La.App. 4 Cir. 11/8/1978).

With the trial court’s substantial discretion in mind, we turn now to Allstate’s assignments of error. Both are based upon the fact that Marks testified that she said or did nothing defamatory towards Hedrick, and that no other party presented evidence to contradict or refute Marks’ testimony. Essentially, Allstate argues that because Marks denied any wrongdoing, and this denial was uncontra-dicted at the hearing, it is not responsible for any alleged wrongs to Hedrick and should be dismissed.

A declaratory judgment is a vehicle used to “declare rights, status, and other legal relations whether or not further relief is or could be claimed.” La. C.C.P. art. 1874. In this case, the issue was Allstate’s coverage of Marks for liability resulting from any defamatory statements she allegedly made. This need not involve more than a comparison between the acts alleged in the petition and the text of the | (¡policy. The hearing was not a trial on the merits. It was not an abuse of discretion for the trial court to rule against Allstate when unresolved factual issues remained.

Louisiana Code of Civil Procedure Article 1876 provides that a trial court “may-refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.” The trial court appropriately refrained from dismissing Allstate while Marks remained a party to the suit, because dismissing Allstate will not terminate the uncertainty giving rise to this proceeding. During a trial on the merits, Hedrick could present evidence to prove that Marks negligently made the alleged defamatory statements. Allstate would then be responsible for the damage resulting from these statements. Yet, Allstate would have already been dismissed from the action. Clearly, dismissing Allstate would not terminate the controversy giving rise to this proceeding, and we find that the trial court did not abuse its broad discretion when it denied Allstate’s petition.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s denial of Allstate’s petition.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 1915(B) provides that ''[w]hen a court renders a partial judgment or partial summary judgment ... as to one or more but less than all of the claims, demands, issues or theories ... the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” In this case, the trial court signed Allstate’s motion and order to make judgment final and appealable on April 22, 2005. Allstate's petition and order for appeal was signed by the trial court on April 21, 2005. Thus, jurisdiction is appropriate.

      . We note that Louisiana jurisprudence provides that defamation may be based upon a negligent or intentional act See Fitzgerald v. Tucker, 98-2313 (La.6/29/99); 737 So.2d 706, 715-16. Thus, Hedrick does not need to prove an intentional act in order to be successful on a defamation claim.


author: CHARLES R. JONES, Judge. ARMSTRONG, C.J., TOBIAS, J.,

text:
    GRIMALDI MECHANICAL, L.L.C. v. THE GRAY INSURANCE COMPANY.
    No. 2005-CA-0695.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 2, 2006.
    Rehearing Denied July 25, 2006.

      Scott E. Frazier, Eric A. Kracht, Kracht & Frazier, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant.
    Edward J. Koehl, Jr., Conrad Meyer, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, and Judge MAX N. TOBIAS JR.).
   CHARLES R. JONES, Judge.

hThe Appellant, Grimaldi Mechanical, L.L.C., appeals an adverse judgment that granted the Appellee’s Cross Motion for Summary Judgment We reverse and remand.

FACTS AND PROCEDURAL HISTORY

Grimaldi entered into a public works construction contract with the Board of Supervisors, Louisiana State University and A & M College on Behalf of the University of New Orleans (hereinafter “LSU-UNO”), for the construction of a public works project which was designated as “High Temperature Hot Water Distribution System repairs — University of New Orleans (hereinafter “the Project”).” The Project work included the installation of approximately 7500 feet of prefabricated and pre-insulated underground hot water piping on the University of New Orleans’ campus. Mr. Lucien T. Vivien, Jr., of Lucien T. Vivien & Associates, was designated as the engineer for the Project, and he was required to prepare all of the Project’s designs, plans, and specifications. In addition to his | ¡.engineering duties, Mr. Vivien was also responsible for project administration, which included the inspection and evaluation of the work to be performed by Grimaldi, review and approval of the contractor’s applications for payment, and review and approval of requests for changes to the contract price and/or completion time. Based on Mr. Vivien’s plans and bid requirements, Grimaldi prepared cost estimates and set various deadlines in its bid for the Project.

After confecting the contract to perform the services, Grimaldi entered into subcontracts with Thermacor Process, LP (,hereinafter “Thermacor”) to fabricate and supply the pre-insulated hot water piping system, and LTH Mechanical, Inc. to install the same prefabricated hot water piping system at the UNO campus.

The Project began on or around October 21, 2002. The record indicates that although the completion date had been set for March 29, 2003, the date was subsequently changed to May 23, 2003. By late April 2003, sections of the piping system were subjected to testing, or rather “energized,” and placed into service.

However, on or about April 25, 2003, Grimaldi received correspondence from Mr. Vivien, which was addressed and directed to Mr. Maurice Laporte of LSU-UNO’s Facility Services. In this letter, Mr. Vivien indicated that the piping system was “deformed” because of, inter alia, unrestrained movement that occurred while the system was tested.

In response to Mr. Vivien’s correspondence, LSU-UNO issued a “default notice,” demanded payment from Grimaldi’s surety, ACIC, and suspended all |swork at the Project location. As a result of LSU-UNO’s declaration of default, Grimaldi alleges that its bonding credit was subsequently terminated and its surety refused to issue additional bonds to Grimaldi.

On June 13, 2003, Grimaldi filed a declaratory judgment action against LSU-UNO and Mr. Vivien in the 19th Judicial District Court, in East Baton Rouge Parish. In its Petition, Grimaldi sought to enforce its rights under the construction contract. Grimaldi incurred legal expenses as a result of its declaratory action against LSU-UNO.

On September 11, 2003, LSU-UNO answered Grimaldi’s suit and filed a Recon-ventional Demand seeking monetary damages and alleged, inter alia, defective workmanship and negligence by Grimaldi which resulted in damage to the piping system and surrounding ground and soil. LSU-UNO reiterated and incorporated by reference two exhibits in its Reconventional Demand, “A” and “B,” which generally alleged contractual breach and that damage was caused to the piping system and soil when the system was energized.

Upon receipt of the Reconventional Demand, Grimaldi forwarded a copy of the pleading and attached exhibits to its insurer, the Gray Insurance Company. At all times hereto, there was in effect a policy (# XSGL-0727) of commercial general liability (CGL) insurance issued to and on behalf of Grimaldi by Gray. The insurance provided coverage for “property damage” arising from an “occurrence.”

| ¿Grimaldi argues that as a result of notifying Gray of LSU-UNO’s Reconven-tional Demand, Gray allegedly allocated monies for costs associated with its defense and indemnity of Grimaldi. Gray allegedly informed Grimaldi that it would assume its defense. However, Gray subsequently changed its position, refused further investigation of the matter, and refused to provide a defense to Grimaldi.

Nevertheless, Grimaldi alleges that through its attorney and a mechanical engineering expert, Grimaldi was forced to provide its own defense. Grimaldi propounded substantial written discovery and conducted its own investigation in response to LSU-UNO’s Reconventional Demand. The discovery and investigations included extensive analyses of calculations and conclusions made by Mr. Vivien with respect to “the allowable (and exceeded) stresses to the system,” which formed the basis of LSU-UNO’s claims against Grimaldi. After mediation was conducted in December 2003, a settlement was eventually reached. However, the terms of the settlement agreement between Grimaldi and LSU-UNO are not a part of the record.

Nonetheless, because of Gray’s refusal to reimburse monies for expenses incurred in defending the Reconventional Demand action filed by LSU-UNO, Grimaldi subsequently filed a Petition in the Civil District Court for the Parish of Orleans, on May 27, 2004. In its Petition, Grimaldi alleged “an arbitrary failure and refusal to acknowledge and undertake its contractual and legal duties to defend,” by Gray.

15After initial discovery was propounded, both Grimaldi and Gray filed Motions for Summary Judgment. Grimaldi sought its partial summary judgment on the issue of liability to require Gray to reimburse it for costs incurred as a result of litigation. Gray argued, as mentioned above, that LSU-UNO’s Reconventional Demand and “Exhibits A & B,” did not contain any allegation of property damage, and that therefore, Gray was not obligated to provide coverage under the CGL policy.

Both motions were heard on February 18, 2005, at which time, the district court refused to consider Grimaldi’s offer of extraneous evidence. The district court also concluded that the allegations contained in LSU-UNO’s Reconventional Demand unambiguously excluded coverage. On March 2, 2005, the district court granted Gray’s Motion for Summary Judgment and denied Grimaldi’s Partial Motion for Summary Judgment as to liability. However, in addition to denying Grimaldi’s Partial Motion for Summary Judgment, the district court also dismissed Grimaldi’s lawsuit against Gray with prejudice. Gri-maldi filed this timely appeal.

Specifically, Grimaldi argues that the district court erred in granting summary judgment in favor of Gray, thereby relieving Gray of the duty to defend its insured, where the pleadings at issue did not “unambiguously exclude coverage,” and where Gray offered no proper evidence in support of the application for the motion of any exclusions to coverage contained in the policy.

| (¿DISCUSSION

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, 230. A summary judgment shall be rendered forthwith 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish those ends. Id. If the party moving for summary judgment will not bear the burden of proof at trial, his burden does not require him to negate all essential elements of the adverse party’s claim, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he or she will be able to satisfy his or her |7evidentiary burden of proof at trial, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(C)(2).

In Succession of Fannaly v. Lafayette Ins. Co., 01-1355 (La.1/15/02), 805 So.2d 1134, the Louisiana Supreme Court reiterated the general precepts of insurance contracts and defined an insurance policy as “an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. See La. Civ.Code arts. 1912, 1914-15. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. See Ledbetter v. Concord General Corp., 95-0809 (La.1/06/96), 665 So.2d 1166, 1169. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer. See LSA-C.C. art.2045.” Fannaly, at 1137.

In Mossy Motors, Inc. v. Cameras America, 04-0726 (La.App. 4 Cir. 3/2/05), 898 So.2d 602, writ denied, 05-1181 (La.12/9/05), 916 So.2d 1057, this Court summarized an insurance company’s duty to defend as follows:

Generally, an insurer’s duty to defend lawsuits against its insured is broader than its liability for damage claims. The duty to defend is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Yount v. Maisano, 627 So.2d 148 (La.1993); Matheny v. Ludwig, 32,288 (La.App. 2 Cir.9/22/99), 742 So.2d 1029. Thus, assuming all the allegations of the petition to be true, if there would be both coverage under the policy and liability to the plaintiff, the insurer must defend the lawsuit regardless of its outcome. Yount, supra; Matheny, supra. The duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Steptore v. Masco Const. Co., Inc., 93-2064 (La.8/18/94), 643 So.2d 1213; Yarbrough v. Federal Land Bank of Jackson, 31,815 (La.App. 2 Cir.3/31/99), 731 So.2d 482. (emphasis ours).

Id., at 606. Additionally, this Court further expounded on determining the duty to defend as follows:

The issue of whether a liability insurer has the duty to defend a civil action against its insured is determined by application of the eight-corners rule, under which an insurer must look to the four corners of the plaintiffs petition and the four corners of its policy to determine whether it owes that duty. Vaughn v. Franklin, 00-0291, p. 5 (La.App. 1 Cir. 3/28/01), 785 So.2d 79, 84. Under this analysis, the factual allegations of the plaintiffs petition must be liberally interpreted to determine whether they set forth grounds which raise even the possibility of liability under the policy. Id.

Id., at 606-607.

Gray cites Bryant v. Motwani, 96-1651 (La.App. 4 Cir.10/30/96), 683 So.2d 880 to support its position that its duty to defend has not been triggered in the instant matter because Grimaldi’s LSU-UNO’s Re-conventional Demand and attached exhibits, unambiguously exclude coverage. In Bryant, a plaintiff-employee sought damages from her supervisor and employer’s insurer for emotional distress. The employer filed a third-party petition seeking indemnity and duty to defend from its comprehensive general liability (CGL) insurer. The issue presented in Bryant concerned a “bodily injury” exclusion in the insurance policy which precluded the insurer’s duty to defend. Even though Bryant points out that the supervisor submitted an affidavit in which he indicated that he was an “executive officer” so as to include him under the “Persons Insured” policy provision, this Court did not fully address the supervisor’s affidavit as extraneous, or distinguish it from the exclusive list of pleadings, because the “bodily injury” policy exclusion was evident in the policy. Id.

Lin its discussion of the duty to defend, this Court mentioned that

[u]nder C.C.P. Art. 852, the pleadings allowed in civil actions include “petitions, exceptions, written motions and answers.” Thus, the filing of the written summary judgment motion expanded their pleadings to include the duty to defend issue. The purpose of a pleading is to inform the opponents of the issues, in order to give them an opportunity to present evidence in support of their contentions, and to avoid placing the opponents at a disadvantage by surprise.

Bryant at 884. This Court in Bryant further indicated that

The duty to defend is determined solely from the plaintiffs pleadings and the face of the policy, without consideration of extraneous evidence. See Collier v. Williams-McWilliams Co., Inc., 459 So.2d 719, 724 (La.App. 4th Cir. 1984). The plaintiffs complaint against the insured is examined with the assumption that all the allegations are true. West Brothers of DeRidder v. Morgan Roofing, 376 So.2d 345, 348 (La.App. 3d Cir.1979). Where the pleadings, taken as true, allege both coverage under the policy and liability of the insured, the insurer is obligated to defend, regardless of the outcome of the suit or the eventual determination of actual coverage. American Home at 259, 230 So.2d 253.

Thus, although the “eight corners rule” is widely accepted, and that all pleadings may be considered concerning a duty to defend, we reiterate that while Gray focuses on the petition, Bryant defines pleadings, pursuant to La. C.C.P. art. 852, to include “petitions, exceptions, written motions and answers.” Id. Thus, considering Bryant, pleadings, and the allegations contained therein may be expounded upon by other pleadings. Furthermore, our jurisprudence has also determined that “[a]n insurer’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy.” (emphasis ours) Sullivan v. Franicevich, 04-0321 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, 608, citing Steptore v. Masco Const. Co. Inc., 93-2064, pp. 8-9 (La.8/18/94),10 643 So.2d 1213, 1218 (citing Meloy v. Conoco, Inc., 504 So.2d 833, 838 (La.1987)).

Grimaldi’s Petition against Gray

Grimaldi filed its Petition against The Gray Insurance Company on May 27, 2004. In short, Grimaldi alleged that it had entered into a public works construction contract with LSU-UNO to install underground piping (the Project). Grimaldi’s Petition further alleged:

7.
In conjunction with Grimaldi’s performance on the project, a dispute developed between Grimaldi and the University, whereupon Grimaldi filed suit against the University to obtain a declaration of rights and obligation under the contract....
8.
The University Responded with a Re-conventional Demand against Grimaldi, the University alleged, inter alia, defective workmanship and negligence which resulted in damage to the piping system.
9.
Specifically, in its Reconventional Demand against Grimaldi, the University attached and incorporated by reference certain correspondence from the Project engineer in which he asserted that the piping system sustained physical damage as a result of unrestrained movement which occurred during a testing procedure in April 2003.
10.
Upon receipt of service of the University’s Reconventional Demand, Grimaldi immediately notified Gray in writing of the claims asserted by the University.
11.
Despite the required notice of the University’s suit and the fact that allegations contained therein implicated coverage and thereby gave rise to the duty to defend launder the CGL policy, Gray refused to provide a defense to Grimaldi.

The Petition alleged that once Gray was notified of the claim, pursuant to the duties enumerated in the CGL policy, Gray refused to investigate the allegations contained in LSU-UNO’s Reconventional Demand against Grimaldi. Grimaldi further alleged that Gray’s refusal to defend was “arbitrary and capricious.” The Petition concluded with Grimaldi’s prayer for judgment of “all sums deemed reasonable ... together with penalties and attorney’s fees, plus legal interest.”

Nevertheless, Grimaldi’s Petition incorporates by reference another document, namely LSU-UNO’s Reconventional Demand, to show that Gray had a responsibility to defend under the CGL insurance policy.

LSU-UNO’s Reconventional Demand and Exhibits

In its Reconventional Demand, LSU-UNO alleged that Grimaldi “failed to complete the [Pjroject in a workmanlike manner and in accordance with the plans and specifications.” LSU-UNO further alleged that “pursuant to the contract, LSU is rightfully withholding monies because of [Grimaldij’s nonperformance and failure to complete the [Pjroject in a timely manner and in accordance with the plans and specifications set forth in the contract....” Along with general allegations of contractual breach, the following paragraphs also appear in the Reconventional Demand:

49.
LSU is entitled to a credit against sums owed to [Grimaldi] for nonconforming work and defective work performed by [Grimaldi], and for work included in the contract but not performed by [Grimal-di].
_b54.
The contractor has defaulted and breached its contractual obligations as described in exhibits A and B attached.
58.
Grimaldi has failed to perform the work in a thorough workmanlike manner.

The Reconventional Demand concluded with a prayer for “an award of damages, liquidated damages, penalties, attorneys’ fees, costs, and interest as a result of Grimaldi’s breach of contract, misrepresentations, and other acts, omissions, and/or fault which may be shown at trial.”

“Exhibits A & B”

Upon examination of the record, “Exhibit A” is a letter from Mr. Vivien, which is dated April 14, 2003, to Mr. Laporte. In the letter, Mr. Vivien specifically discusses two topics: 1) whether or not LSU-UNO should issue Grimaldi a construction change directive (a “CCD”), and 2) whether or not Grimaldi was in default. Mr. Vivien recommended that LSU-UNO not force Grimaldi to perform by issuing the CCD. Mr. Vivien wrote, “[i]nstead of trying to force the Contractor to perform by issuing a CCD, [we] recommend that UNO enforce the terms and conditions of the Contract. Specifically, Mr. Vivien recommends that UNO place the Contractor in default with an opportunity to cure the default.” Mr. Vivien’s letter alleged a number of violations which included late payments to the Project’s subcontractors and suppliers, safety violations, deviations from the Project work plans, and change order price discrepancies. Ultimately, Mr. Vivien certified that 11sGrimaldi was in default and recommended that LSU-UNO notify Grimaldi and its surety of the proposed contract termination. Thus, “Exhibit A,” merely lays out the foundational grounds on which Mr. Vivien concluded that Grimaldi may not have been in compliance with the provisions of the contract.

On the other hand, “Exhibit B” is a second letter from Mr. Vivien, dated May 13, 2003, to Mr. Maurice Laporte. In this letter, Mr. Vivien updated Mr. Laporte on the status of the Project. Particularly, the letter discussed Grimaldi’s “non-conforming” work and declared that Grimal-di’s work was unacceptable due to incomplete calculations by both Thermacor, the piping system’s manufacturer, and Grimal-di, with respect to the piping system’s stress capabilities. Mr. Vivien indicated that the simulated stress tests calculations, which were run at 150 p.s.i., were not in compliance with the contract, which expressly required an operating pressure of 200 p.s.i. Based upon the stress tests, Mr. Vivien opined that Grimaldi’s calculations “materially underestimate the stresses at the specified operating condition” of the piping system. These developments, Mr. Vivien concluded, formed the basis for placing Grimaldi in “supplemental default.”

The Insurance Policy

Looking to the language of the insurance policy alone, the document reads:

1. Insuring Agreement.
a. We will pay sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this 114insurance applies. We have the right and duty to defend any “suit” seeking those damages. We may at our discretion investigate any “occurrence” and settle any claim or “suit” that may result....
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) The “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory;” and
(2) The “bodily” “injury” or “property damage” occurs during the policy period ...

From its face, the policy specifically enumerates a “duty to defend” suits which seek “property damage” and “bodily injury” during the policy period. The Gray policy specifically defines “property damage” as “(a.) [pjhysical injury to tangible property, including all resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or (b) [l]oss of use of tangible property that is not physically injured.” Additionally, the policy defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general conditions.”

However, the policy goes on to list several policy exclusions, including the following:

2. Exclusions.
This insurance does not apply to:
a. “Bodily injury” or “property damage” expected or intended from the standpoint of the insured....
|1Kb. “Bodily injury” or “property damage” for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:
(1) Assumed in a contract or agreement that that is an “insured contract” provided that the “bodily injury” or “property damage” occurs subsequent to the execution of the contract or agreement; or
(2) That the insured would have in the absence of the contract or agreement.
* * *
k. “Property damage” to “your product” arising out of it or any part of it.”
l. “Property damage” to “your work” arising out of it or any part of it and included in the “products-completed operations hazard.”
This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.
m. “Property damages” to “impaired property” or property that has not been physically injured, arising out of:
(1) A defect, deficiency, inadequacy or dangerous condition in “your product” or “your work.”
l1fi(2) A delay or failure by your or anyone acting on your behalf to perform an agreement in accordance with its terms.
This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to “your product” or “your work” after it has been put to its intended use.

In its Cross Motion for Summary Judgment, Gray argued, as mentioned above, that LSU-UNO’s Reconventional Demand along with incorporated “Exhibits A & B,” did not contain any allegations of property damage, and that therefore, it was not obligated to provide a defense under the CGL policy. Gray also argued that the allegations contained in the Re-conventional Demand do not rise to the level of warranting a duty to defend because the allegations clearly concern a breach of contract and not “property damage” which arose out of an occurrence covered under the CGL policy.

Gray does not address the testing of the piping system as a possible occurrence. Gray contends in brief, “[it] does not dispute that defective workmanship during construction may constitute an occurrence,” but Gray does not address that, as a result of the system test, property damage may have occurred which may substantiate the Reconventional Demand filed by LSU-UNO. The record reveals that Gray went through a thorough paragraph by paragraph “analysis” of LSU-UNO’s Reconventional Demand” in its effort to substantiate its Cross Motion for Summary Judgment; however, Gray merely offers general interpretations of the paragraphs contained in Grimaldi’s Petition and LSU’s Reconventional Demand, along with its exhibits, and summarily concludes that the |17absence of the actual term “property damage” unambiguously excludes insurance coverage under the policy.

Gray’s interpretation of the pleadings fails to address that the policy itself defines “property damage” as “[p]hysical injury to tangible property, including all resulting loss of use of that property” as well as “[l]oss of use of tangible property that is not physically injured.” The definition also states that “[a]ll such loss of use shall be deemed to occur at the time of the physical injury that caused it.” “Exhibits A and B,” particularly “Exhibit B,” suggest that some damage may have occurred. Further, considering that “Exhibits A and B” were not prepared by Grimaldi in anticipation of litigation, it is of particular concern that Grimaldi has to rely upon LSU-UNO’s Reconventional Demand to show that Gray may have had a “duty to defend.”

Moreover, considering that Grimaldi and LSU-UNO originally agreed to certain design specifications via contract and had agreed on an extended completion date of May 23, 2003, the record is clear that the design specifications may not have been adhered to. However, the record suggests that LSU-UNO may have ratified some of the changes to the contract by not immediately declaring Grimaldi in default.

Nevertheless, the record also indicates that there was a dispute between Grimaldi and LSU-UNO concerning the absence of concrete anchors Grimaldi allegedly did not install, as well as another dispute concerning the piping system’s stress performance calculations that were believed to have been inaccurate. The record indicates that LSU-UNO requested that Thermacor provide accurate system operational data concerning the stress testing, but the data may not have been provided. LSU-UNO imputed Thermacor’s failure to provide the requested | ^performance test calculations, to Grimaldi, rather than to Thermacor. These issues were raised as grounds for declaring Grimaldi in supplemental default.

Additionally, the record reflects that after being placed in default on Mr. Vivien’s recommendation, and after attempting to cure the “defects” raised in the notice of default, Grimaldi requested that an independent engineer be retained to evaluate Grimaldi’s work and to double check Mr. Vivien’s recommendations, but to no avail. Thus, there is clearly a dispute as to whether there was merely a contractual breach alleged, or rather a contractual breach along with other allegations of liability based in tort.

Gray argued that “there [were] no facts to support Grimaldi’s request for reimbursement of defense costs for litigation expenses under Gray’s CGL policy.” Gray further contends that its CGL policy “with Grimaldi was specifically intended to cover tort liability with respect to work performed on a particular job site.” However, we find this position problematic because contractors routinely confect contracts to build or perform work. With respect to property damage under these particular circumstances, this type of CGL policy may have the effect of excluding most property damages which could arise. Additionally, we have pointed out “an insurer’s duty to defend is broader than its liability for damages.” Mossy Motors, Inc. v. Cameras America, 04-0726 (La.App. 4 Cir. 3/2/05), 898 So.2d 602, 606.

Gray does not dispute that there was a policy in full force and effect at the time the alleged occurrence took place. Although Gray disputes that it owes Grimal-di a duty to defend under its CGL policy exclusions, in Garcia v. St. Bernard Parish School Bd., 576 So.2d 975 (La.1991), the Louisiana Supreme Court held:

119Exclusionary provisions in insurance contracts are strictly construed against the insurer and any ambiguity is construed in favor of the insured. Capital Bank Trust Co. v. Equitable Life Assurance Society, 542 So.2d 494 (La.1989); Albritton v. Fireman’s Fund Insurance Co., 224 La. 522, 70 So.2d 111 (1953). Equivocal provisions seeking to narrow the insurer’s obligation are strictly construed against the insurer, since these are prepared by the insurer and the insured has no voice in the preparation. 13 J. Appleman, Insurance Law and Practice 7427 (rev. ed.1976).

Garcia at 976. Therefore, based upon the policy provisions, we conclude that an occurrence took place. As a result of this occurrence, Grimaldi may be liable for the resulting property damage which may have arisen out of the alleged work at the Project site. In fact, the policy exclusion reads that the enumerated exclusions would not apply to liability for damages “[t]hat the insured would have in the absence of the contract or agreement.” Thus, based upon our review of the record, our jurisprudence supports our interpretation of the policy provisions which favor coverage.

This case is somewhat of an anomaly. The facts, as reiterated by both parties, concern the installation of a piping system by a contractor. However, the crux of the problem is that Grimaldi has to rely upon the Reconventional Demand and the corresponding exhibits of an adverse party to allege that property damage may have occurred. We conclude that these pleadings may trigger Gray’s duty to defend and may require Gray to indemnify Grimaldi for legal expenses incurred as a result of Gray’s refusal to defend.

| gnAlthough Gray alleges that Grimaldi’s Petition unambiguously excludes coverage, LSU-UNO’s Reconventional Demand, on which Grimaldi relies, alleges both contractual breach and damages. The record indicates that in its Reconventional Demand, LSU-UNO prayed for an award of damages, penalties, attorney’s fees, costs, and interest as a result of Grimaldi’s breach of contract, misrepresentations, and other acts, omissions, and/or fault. As our case law presupposes that “[a] plaintiffs complaint against the insured is examined with the assumption that all the allegations are true,” Bryant at 884, we disagree with Gray and find that there may have been an occurrence which may have resulted in damage to property, thereby triggering Gray’s duty to defend under the policy. Thus, we conclude that serious genuine issues of material fact exist which precluded the district court from granting Gray’s Cross Motion for Summary Judgment.

DECREE

For the foregoing reasons, we reverse the district court judgment in granting Gray’s Cross Motion for Summary Judgment.

REVERSED AND REMANDED.

ARMSTRONG, C.J., concurs.

TOBIAS, J., concurs in the result and assigns reasons. ,

ARMSTRONG, C.J.,

concurs.

1,1 concur in the result reached in the majority opinion.

TOBIAS, J.,

concurs in the result and assigns reasons.

|,I respectfully concur in the result.

LSU’s claims against Grimaldi Mechanical, L.L.C. (“Grimaldi”), when read in the broadest sense, may very well state a claim for damages that when read in conjunction with the comprehensive general liability policy issued by The Gray Insurance Company (“Gray”) and the law (the eight corners doctrine) may require Gray to defend Grimaldi for part of LSU’s claim. Although ordinarily a comprehensive general liability policy is not intended by the insurer to cover such claims as those of LSU against Grimaldi because LSU’s claims sound more in breach of contract than anything else, nevertheless on a motion for summary judgment where this court reviews the matter de novo, I find that the motion for summary judgment should have been denied by the trial court.

      . In Gray Insurance Company’s ("Gray”) brief, the Vivien correspondence is dated April 14, 2003.

      . The surety's acronym appears in Gray's brief. The actual name of the surety is not of record.

      . The Appellee's brief indicates that the policy was issued for the period of November 1, 2001, through November 1, 2003. These dates are consistent with the policy dates in the record.

      . The letter indicates that the contents of the letter are in response to a request for recommendations by Mr. Shelby, LSU-UNO’s attorney.

      . This May 13, 2003, letter updated Mr. La-porte on the status of the Project since tire April 14, 2003 letter. This May letter briefly refers to another letter, dated April 23, 2003, to Grimaldi and its surety from counsel, Mr. Shelby. The April 23rd letter appears in the record and is captioned as a "Notice of Default.” The default letter informs Grimaldi and its surety that Mr. Vivien had certified that Grimaldi was in default due to material breaches and instructs Grimaldi to either deny the existence of the breaches or indicate if the breaches had been cured.

      . P.S.I. is a unit of pressure measurement.

      . A supplemental default letter, dated May, 19, 2003, was sent to Grimaldi to notify it of its supplemental default.

      . "Your product” is defined as "any goods or products, other than real property, manufactured, sold, handled, distributed, or disposed of by: (1) You” ...; and "containers ... materials, parts or equipment furnished in connection with such good or services....”

      . "Your work,” per the policy, means "work or operations performed by you or on your behalf; and materials, parts or equipment furnished in connection with such work or operations.... ”


author: SMITH, Chief Justice, EASLEY, Justice,

text:
    Isaac K. BYRD, Jr., Katrina M. Gibbs, and Byrd, Gibbs & Martin, PLLC f/k/a Byrd & Associates, PLLC v. Willie J. BOWIE, Individually, and Charles Brown, Individually, Being the Sole Wrongful Death Beneficiaries of Lois Brown, Deceased.
    No. 2005-IA-00321-SCT.
    Supreme Court of Mississippi.
    April 6, 2006.
    Rehearing Denied Aug. 3, 2006.

      Precious Tyrone Martin, Jackson, attorney for appellant.
    Eddie Jacob Abdeen, Stephen Lamar Gowan, attorneys for appellees.
   SMITH, Chief Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. This interlocutory appeal stems from numerous motions, including a partial summary judgment, in a legal malpractice case which case arose after this Court handed down its opinion in the medical malpractice case Bowie v. Montfort Jones Memorial Hospital, 861 So.2d 1037 (Miss.2003). In Boioie, this Court affirmed summary judgment in favor of Montfort Jones Memorial Hospital (Montfort). The trial court determined that the Plaintiffs, Bowie and Brown (collectively, “Bowie”) failed to timely designate an expert for their medical malpractice claim; therefore, summary judgment was granted because Bowie could not make a prima facie medical malpractice case without this expert. Id. at 1043. The attorneys representing Bowie were Katrina M. Gibbs (Gibbs) and Isaac K. Byrd (Byrd).

¶ 2. Following this Court’s ruling in Bowie, Bowie filed a legal malpractice case against Gibbs, Byrd, and Byrd, Gibbs and Martin, PLLC, f/k/a Byrd & Associates, PLLC (the “Firm”) (collectively known as the “Defendants”) in the Circuit Court of Rankin County, Mississippi. The first amended complaint was filed on April 29, 2004. On May 8, 2004, Gibbs was served with process. On May 10, 2004, Christy Hall, Byrd’s secretary, was served with process for Byrd and the Firm. On June 8, 2004, Gibbs, Byrd and the Firm filed a joint Answer.

¶ 3. On October 19, 2004, Bowie filed a motion for partial summary judgment claiming, inter alia, that the Defendants failed to respond to requests for admissions. In response, the Defendants filed (1) a response to the motion for partial summary judgment, (2) a motion for disqualification of Attorney Eddie Abdeen (counsel for Bowie), (3) a motion to stay proceedings, and (4) a motion to withdraw default responses to plaintiffs first set of requests for admissions.

¶ 4. The trial court conducted a hearing on these four motions on January 4, 2005. Following this hearing the trial court granted the plaintiffs motion for partial summary judgment on the issue of negligence; denied the motion to stay; denied the motion to disqualify Abdeen; and denied the motion to withdraw default responses to plaintiffs first set of requests for admissions. In the order, the trial court also granted certification for an interlocutory appeal on the rulings of the four motions. This Court granted interlocutory appeal. See M.R.A.P. 5. The Defendants raise the following issues:

ISSUES

I. Whether the Trial Court Erred by Granting Partial Summary Judgment on the Issue of Negligence and by Denying the Motion to Withdraw Default Responses to Request for Admissions.

II. Whether the Trial Court Erred by Denying the Motion to Stay.

III. Whether the Trial Court Erred by Denying the Motion to Disqualify Abdeen.

STANDARD OF REVIEW

¶ 5. This Court reviews motions for summary judgment de novo. Brooks v. Roberts, 882 So.2d 229, 231-32 (Miss.2004) (citing Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1040 (Miss.2003)). All evidence is to be viewed in the light most favorable to the non-moving party. Id. at 232. The decision of the trial court will only be reversed if “there are indeed triable issues of fact.” Id.

¶ 6. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact....” M.R.C.P. 56(c); see Saucier ex rel. Saucier v. Biloxi Reg’l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). The moving party has the burden of demonstrating there is no genuine issue of material fact, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).

¶ 7. “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Tucker, 558 So.2d at 872.

Of importance here is the language of the rule authorizing summary judgment ‘where there is no genuine issue of material fact.’ The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

Simmons v. Thompson Mach. of Miss., Inc., 631 So.2d 798, 801 (Miss.l994)(citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)). The evidence must be viewed in the light most favorable to the non-moving party. See Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995); Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 8. To avoid summary judgment, the non-moving party must establish a genuine issue of material fact within the means allowable under the Rule. Richmond, 692 So.2d at 61 (citing Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991)). “If any triable issues of fact exist, the lower court’s decision to grant summary judgment will be reversed. Otherwise the decision is affirmed.” Richmond, 692 So.2d at 61.

DISCUSSION

I. Partial Summary Judgment and Motion to Withdraw Responses to Requests for Admissions

A. Service of Requests for Admissions

¶ 9. The trial court granted summary judgment in favor of Bowie on the issue of liability. The trial court found the Defendants were served with process concerning the request for admissions and denied the motion to set aside admissions. The trial court stated:

[I]t appears to the Court that they were served — Byrd—Byrd law firm and Katrina Gibbs were served. No response was filed. I understand what you say Mr. Martin [counsel for the Defendants], about why would I file an answer and not file a motions responses [sic]. I’ve seen it happen a lot of times. With— Maybe they were overlooked, I don’t know. But it does show a pattern, I think. The plaintiffs Motion for Partial Summary Judgment will be granted as to the negligence issue but denied as to the monetary value....

¶ 10. The Defendants argue the trial court erred by denying the motion to withdraw default responses to requests for admissions. The Defendants argue they never received the request for admissions. Gibbs, Byrd and Precious Martin (Martin), counsel for Gibbs, Byrd and the Firm, all gave affidavits stating they never received any requests for admissions.

¶ 11. The trial court papers contain preprinted summonses. The summonses state, in part:

Notice is also hereby given of service of Plaintiffs’ First Requests for Production of Documents Propounded to Defendant and responses must be mailed or delivered within forty-five (45) days from the date of delivery of this summons and discovery.

The summonses for Gibbs and Byrd also had the words “First Set of Interrogatories & Requests for Admissions” handwritten around the notice paragraph. The Defendants claim they did not know about the request for admissions until Bowie filed the motion for partial summary judgment.

¶ 12. However, during the hearing, a number of witnesses testified about the issue of receipt of the requests for admissions. Gary Windham, the process server, stated that he served Gibbs personally, and served Christy Hall, Byrd’s secretary. On cross-examination, Windham could not identify who hand wrote the words “First Set of Interrogatories & Requests for Admissions” on the summonses. He also did not know whether those words were on the summonses at the time he served the summonses. Later, he stated that he served whatever was written on the returns. The preprinted proofs of service signed by Windham showed that the summonses, amended complaint, interrogatories and requests for admissions were served. The proofs of service were completely typed, unlike the summonses. There was no handwritten addition concerning the requests for admissions on the returns.

¶ 13. Suzanne Keys, an attorney that worked for the Firm, testified she was unfamiliar with the case, but did participate in communications regarding it, as evidenced by emails between attorney Ab-deen and herself. One of the e-mails, dated May 13, 2004, from Abdeen, contained attachments which included the requests for admissions, which were also discussed in the text of the email. Moreover, Keys stated that she received the May 13, 2004, e-mail, although she claims she did not open any of the attachments. In an email dated May 27, 2004, Keys asked Abdeen, per Gibbs request, for an extension to file an answer. In an email dated May 28, 2004, Abdeen confirmed a telephone conversation between Keys and Abdeen regarding an agreement to grant an extension to file a responsive pleading and responses to discovery:

This email will confirm the discussion we just had wherein I agreed that Katrina Gibbs, Mr. Byrd, and the Byrd firm can have an additional 20 days to serve a responsive pleading in the referenced case. The responses to the discovery-served with the complaint will be served at the same time the answers will be due.

At the hearing on Bowie’s motion for partial summary judgment, Keys admitted to receiving this email.

¶ 14. The trial court held an evi-dentiary hearing pursuant to the Defendant’s motion to withdraw default responses pursuant to M.R.C.P. 36(b). The record reflects that the agent’s process returns showed service of process. Furthermore, the correspondence between Keys and Abdeen reflects notice to the Defendants. The Defendants’ meager proof or reasons given to the trial court for their failure to respond to Bowie’s request for admissions were soundly rejected. The evidence submitted to the trial judge was reasonable and certainly not manifestly wrong under the applicable standard of review. See Punzo v. Jackson County, 861 So.2d 340, 343 (Miss.2003). This Court is thus duly bound to respect the lower court’s findings of fact when they are supported by reasonable evidence in the record and are not manifestly wrong. See Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). Here, the trial judge did not abuse his discretion, and the evidence reasonably supports the grant of summary judgment on the issue the defendants’ negligence based on the defendants’ failure to respond to plaintiffs request for admissions.

B. Negligence as a Matter of Law

¶ 15. Notwithstanding the defendants’ failure to properly respond to Bowie’s request for admissions, we find the defendants were negligent as a matter of law. As the defendants correctly assert in their brief, to prevail, one claiming negligence in a legal malpractice action must prove by a preponderance of the evidence (1) the existence of an attorney-client relationship, (2) negligence on the part of the lawyer in handling his client’s affairs entrusted to him, and (3) proximate cause of the injury. Wilbourn v. Stennett, Wilkinson & Ward, 687 So.2d 1205, 1215 (Miss.1996); Hickox v. Holleman, 502 So.2d 626, 633 (Miss.1987) (superseded on other grounds). Moreover, “[cjlearly established law provides that expert testimony is necessary to establish the breach of a duty of care in a claim of legal malpractice.” Lane v. Oustalet, 873 So.2d 92, 99 (Miss.2004); Hickox v. Holleman, 502 So.2d at 635; Dean v. Conn, 419 So.2d 148, 150 (Miss.1982).

¶ 16. However, this Court has carved out some exceptions to the general rule that expert testimony is required in a legal malpractice claim. Applicable to the case at bar is the exception found in Hickox, 502 So.2d at 635. There, this Court held an expert is not required “when the attorney’s conduct is negligent as a matter of law and the plaintiff is entitled to a directed verdict on liability.” Id. In Hickox, this Court held the attorney’s failure to file suit prior to the expiration of the statute of limitations constituted negligence as a matter of law, where the attorney admitted he never performed research to determine the nature of Hickox’s claim. Id. at 636. See also Thompson v. Erving’s Hatcheries, Inc., 186 So.2d 756, 759 (Miss.1966).

¶ 17. In discussing the need for experts for legal malpractice actions, we stated:

Moreover, attorneys involved in malpractice actions must always remember there is a pragmatic difference between the trial of other professional malpractice cases and a legal malpractice case. In the former class, the lawyers and judges are laymen. In professional malpractice cases, excepting extreme cases, we rely upon experts for guidance. The attorney who finds himself the defendant in a legal malpractice case, however, has a judge and the trial attorneys who are already experts.

Hickox, 502 So.2d at 636. Furthermore, “[i]t does not require expert testimony to establish the negligence of an attorney who is ignorant of the applicable statute of limitations or who sits idly by and causes the client to lose the value of his claim for relief.” Id. (quoting George v. Caton, 93 N.M. 370, 600 P.2d 822, 829 (N.M.Ct.App. 1979)).

¶ 18. In this case, the question becomes whether Bowie’s claim of legal malpractice calls for expert testimony in order to establish that the Defendants breached their duty of care. In Bowie, the Defendants neither timely filed a designation of an expert, nor provided any excuse as to why they did not timely file the designation. Bowie, 861 So.2d at 1042. We find the facts in this case are analogous to the facts in Hickox. An attorney who fails to designate an expert by a court-mandated deadline and does not provide any reason for doing so, is negligent as a matter of law, as was the attorney in Hickox. Therefore, Bowie is entitled to partial summary judgment as to the Defendants’ liability.

II. Motion to Stay

¶ 19. The Defendants argue the trial court erred by denying a motion to stay. The Defendants’ legal malpractice insurance carrier is American National Lawyers Insurance Reciprocal (ANLIR). On June 3, 2004, ANLIR was placed into liquidation by the Chancery Court of Davidson County, Tennessee. Following the proceeding in Tennessee, the Defendants filed a motion for stay with the trial court citing that the legal malpractice suit (1) should be stayed until ANLIR’s assets are distributed; and (2) no discovery and prosecution of the claim should go forward because the Defendants would not be in a position to defend themselves which would result in undue prejudice.

¶ 20. The Defendants argue Bowie’s suit would have a direct and substantial adverse effect on the insurance company’s ability to undergo a successful liquidation. Defendants rely on Arnold v. Garlock, Inc., 278 F.3d 426, 434 (5th Cir. 2001), for the premise that proceedings that “relate to” a bankruptcy action include civil suits between third parties which have an effect on the bankruptcy estate. There is “related to” subject matter jurisdiction when the outcome of a proceeding between two non-debtors may impact the debtor’s bankruptcy estate. Id. at 441.

¶ 21. However, Bowie asserts that the Defendants erroneously argue a “related to” jurisdiction provision of the United States Bankruptcy Code, 28 U.S.C. Section 1334, for the first time on appeal. Nevertheless, Bowie argues that domestic insurers are not capable of being a “debtor” under the bankruptcy code 11 U.S.C. Section 109(b), but rather their insolvency is based on state law. In re Advanced Cellular Systems, 235 B.R. 713, 717-18 (Bankr.D.Puerto Rico 1999).

¶ 22. Bowie also argues that ANLIR’s Tennessee court order does not provided for a stay of litigation against its policy holders. Also, Miss.Code Ann. Section 83-23-135 provides a six month stay for the Mississippi Insurance Guaranty Association (MIGA) in order to provide a defense to a covered claim within the meaning of the code section. However, Bowie contends this provision is not applicable because ANLIR policy holders are not covered or protected under MIGA. Bowie provided an affidavit of John Weeks, the executive director of MIGA which stated in part:

I hereby certify that, according to the Mississippi Insurance Department, American National Lawyers Insurance Reciprocal (ANLIR), which provided legal liability and malpractice insurance for certain attorneys in the State of Mississippi was not licensed with that Department to do business in the State on or about February 11, 2003. I further certify that, according to the Mississippi Code, ANLIR policyholders are not covered and/or protected under the Mississippi Insurance Guaranty Association.

(emphasis added).

¶ 23. The trial court ruled:

Okay. Motion to Stay will be denied. The Court in Tennessee is not a Federal Bankruptcy Court where proceedings are automatically stayed. It’s a Chancery Court of Tennessee, where the receivership — the insurance company AN-L-I-R, is not covered under Section § 83-23-135 of the Mississippi Code and not part of that association of insurers. The Court in Tennessee is really of no consequence in the outcome of this lawsuit. The only way they could be is if they provide a defense. But if they could provide a defense, they’ve got funds to do that; they could also reimburse the defendants for any money expended on counts which is basically the same thing. They just don’t get to choose who they pay the money to. The Motion to Stay is denied.

¶ 24. We find the trial court did not abuse its discretion by denying the motion to stay. See Herrington v. Leaf River Forest Products, Inc., 733 So.2d 774, 776 (Miss.1999). The liability insurance firm, ANLIR, is not protected by Mississippi law. In addition, no automatic stay is provided to any policy holders of ANLIR. As such, we find the trial court correctly ruled to deny the motion to stay.

III. Motion to Disqualify

¶25. In Colson v. Johnson, 764 So.2d 438, 439 (Miss.2000), this Court ruled on a motion to disqualify an attorney and held:

Little case law exists in Mississippi with regard to the standard of review of a trial court’s decision of a motion to disqualify an attorney. In Quick Change Oil & Lubrication Co. v. County Line Place, Inc. 571 So.2d 968, 970 (Miss.1990), we held that manifest error applies only to review of findings of fact and that the court has broad discretion.

¶ 26. The Defendants filed a motion to disqualify Abdeen, the attorney of record for Bowie and Brown, in the legal malpractice case. The basis of the motion was that Abdeen stated in an affidavit that he had personal knowledge of the facts in the case. Therefore, the Defendants argue that Abdeen may be called as a witness at trial. The actual affidavit states in part:

1. My name is Eddie J. Abdeen and I have personal knowledge of the facts set forth herein. I am one of the attorneys of record in this matter.
2. I hereby certify that the attached emails are true and correct copies of the emails [sic] referred to as composite Exhibit “E” in Plaintiffs’ Motion for Partial Summary Judgment in the captioned case.

The Defendants also cite to the transcript of the hearing conducted on January 4, 2005. Specifically, they cite to the direct and cross-examination of Keys, an attorney and employee at the Firm. The e-mails mentioned in Abdeen’s affidavit were between him and Keys over a period of a few weeks. During the hearing, Abdeen questioned Keys about the content and circumstances which prompted the sending of the e-mails.

¶ 27. Bowie contends the affidavit merely stated that Abdeen had personal knowledge of the facts set forth in the affidavit and authenticated the e-mails between Abdeen and Key. Bowie also argues that Abdeen had no knowledge of the underlying facts of the case itself. The trial court denied the Defendants’ motion to disqualify Abdeen.

¶ 28. We find the record is clear that Abdeen had no knowledge of the underlying case. He merely had an e-mail exchange with an employee of the Firm, Keys, which occurred after Gibbs, Byrd, and the Firm were served with process. Abdeen had no personal knowledge of the underlying Bowie case which led to the filing of a legal malpractice case against the Defendants. Accordingly, we find that the trial court did not err by denying the Defendants’ motion to disqualify Abdeen.

CONCLUSION

¶ 29. For the reasons stated above, we find the trial court was correct in its rulings and affirm the trial court in toto.

¶ 30. AFFIRMED.

WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ„ CONCUR. EASLEY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. COBB, P.J., AND DIAZ, J., NOT PARTICIPATING.

EASLEY, Justice,

concurring in part and dissenting in part.

¶ 31. I agree with the majority’s opinion to affirm the trial court findings to deny the motion to stay and the motion to disqualify. However, I disagree with the majority’s decision to affirm the trial court on the issue of granting partial summary judgment in Bowie’s favor. I believe there is a genuine issue of material fact concerning whether the defendants received Bowie’s First Set of Requests for Admissions. I also strongly disagree with the trial court and this Court’s failure to consider the sworn affidavits of the defendants, Gibbs and Byrd, and their counsel, Martin. The affidavits state that none of them received the requests for admissions. I find it astonishing and disappointing that the trial court, and the majority of this Court by way of affirmance, completely disregarded the sworn affidavits of the Defendants and their counsel, all officers of the court. The failure to consider these affidavits sends a message to all lawyers that their sworn affidavits are untrustworthy and have no credibility in a court of law. For these reasons, I must concur in part and dissent in part with the majority’s opinion today.

¶ 32. Here, the trial court granted summary judgment in favor of Bowie on the issue of liability; found the Defendants were served the request for admissions; and denied the motion to set aside admissions. At the hearing the trial court stated:

[I]t appears to the Court that they were served — Byrd—Byrd law firm and Katrina Gibbs were served. No response was filed. I understand what you say Mr. Martin [counsel for the Defendants], about why would I file an answer and not file a motions responses [sic]. I’ve seen it happen a lot of times. With— Maybe they were overlooked, I don’t know. But it does show a pattern, I think. The plaintiffs Motion for Partial Summary Judgment will be granted as to the negligence issue but denied as to the monetary value....

A. Service of Requests for Admissions

¶ 33. The main issue is whether the Defendants were served with process on the Request for Admissions. Of significance, Gibbs, Byrd, and Precious Martin (Martin), counsel for Gibbs, Byrd, and the Firm, all gave affidavits stating that they never received any requests for admissions.

¶ 34. The trial court papers contain preprinted summonses which stated that the Defendants had notice and service of the Plaintiffs’ First Requests for Production of Documents Propounded to Defendant. Gibbs and Byrd also received summonses with a handwritten notation stating “First Set of Interrogatories & Requests for Admissions” near the notice paragraph. However, the Defendants argue that they had no knowledge of the request for admissions until Bowie filed the motion for partial summary judgment.

¶ 35. During the hearing, Windham, the process server, stated that he served Gibbs personally, and served Christy Hall, Byrd’s secretary. He could not identify who hand wrote the words “First Set of Interrogatories & Requests for Admissions” on the summonses. Of significance, Windham did not know if those words were on the summonses at the time he served them. Despite this testimony, Windham claimed that he served whatever was written on the returns. Windham also signed preprinted proofs of service that indicated service of the summonses, amended complaint, interrogatories and requests for admissions. These proofs of service were completely typed, unlike the summonses, which had the handwritten notations concerning the requests for admissions on the returns.

¶ 36. Keys testified regarding a number of e-mails between Attorney Abdeen and her. One of the e-mails, dated May 13, 2004, from Abdeen contained attachments which included the requests for admissions. Keys stated that she received the May 13, 2004, e-mail. However, Keys stated that she did not open any attachments. Also, Keys’s e-mails to Abdeen do not reference any admissions. She stated that she was unfamiliar with the case. Keys also stated that Gibbs solely requested that she seek an extension from Abdeen to file their answer. Keys stated that she merely attempted to get an extension for filing an answer in the case. Keys testified that she was not the registered agent for the Firm and not authorized to speak on behalf of the Firm.

¶ 37. Bowie argues that the Defendants were not entitled to relief pursuant to M.R.C.P. 36 because they never presented a justifiable excuse for failing to respond to the requests for admissions. Bowie relied on Earwood v. Reeves, 798 So.2d 508, 517 (Miss.2001), for authority. The Defendants argue that they had no knowledge of the requests for admissions until the motion for partial summary judgment was filed by Bowie. Thereafter, the Defendants immediately filed a motion to withdraw the requests for admissions. As previously mentioned, Gibbs, Byrd, and Martin all gave affidavits stating that none of them were served with any discovery including any requests for admissions.

¶ 38. In Earwood, Reeves filed a complaint against Earwood and his law firm. Id. at 514. Instead of filing an answer and responding to requests to discovery, Ear-wood filed a motion to transfer for change of venue to another county. Id. Earwood and the firm argued that they believed in good faith that the filing of the motion to transfer tolled the time limit for responding. Id. at 515. This Court found no abuse of discretion by the trial court and affirmed the grant of partial summary judgment. Id. at 516.

¶ 39. Here, the facts are distinguishable from Earwood. The Defendants claim that they never received the request for admissions and signed affidavits to that effect. The Defendants and their counsel are all officers of the court and have an obligation to the court to be truthful. Once Bowie filed the motion for partial summary, the Defendants immediately filed a motion to withdraw default responses. Earwood cites two other cases, Martin v. Simmons, 571 So.2d 254 (Miss.1990) and Sunbelt Royalty, Inc. v. Big-G Drilling Co., 592 So.2d 1011 (Miss.1992), for examples of cases in which this Court upheld a trial court decision which deemed unanswered requests for admission to be admitted. Earnwood, 798 at 517. However, these cases are also distinguishable because the defendants these two cases had no counsel, and the Defendants here gave signed affidavits that they never received the requests for admissions.

¶ 40. The trial court ruling clearly referenced and relied on the Defendants’s failure to answer the request for admissions to grant partial summary judgment in favor of Bowie. However, there is a genuine issue of material fact, that being, whether Gibbs and Byrd were actually served with the requests for admissions. The testimony from Windham indicates that he does not know what he served on Gibbs and Byrd’s secretary, Hall. Wind-ham also does not know whether the words “First Set of Interrogatories & Requests for Admissions” were written on the summonses at the time he served them on the Defendants. Keys stated that she knew nothing about the case and never opened any attachments from Abdeen. In addition, Gibbs, Byrd, and their counsel, Martin, as officers of the court, all gave sworn affidavits that they never received any requests for admissions.

¶ 41. The majority states that the trial court soundly rejected the Defendants “meager proof’ and reasons for the their failure to respond to the request for admissions. However, I find it worrisome that by affirming the trial court ruling, this Court is endorsing the complete refusal of the trial court to consider the submission of sworn affidavits from lawyers, who are officers of the court.

¶42. Accordingly, I believe that the trial court erred by granting Bowie’s motion for partial summary judgment. There exists a genuine issue of material fact, that being, whether Gibbs and Byrd ever received the request for admissions. Based upon the cloud surrounding service of process of the requests for admissions, the grant of partial summary judgment should be reversed, and the case should be remanded to the trial court.

B. Negligence — Bowie

¶ 43. Bowie asserts a collateral estoppel argument on the issue of liability claiming that Boioie established that the Defendants breached their legal duty of care as a matter of law. Bowie claims that if the Defendants are allowed to withdraw the admissions he would suffer additional delay, expenses, and effort.

¶ 44. This Court in Bowie affirmed a trial court ruling to grant summary judgment because the plaintiffs failed to timely designate an expert in a medical malpractice case. Bowie, 861 So.2d at 1043. “The trial judge made a specific finding that the plaintiffs had failed to show any excusable neglect as to why the designation of the expert was not timely filed.” Id. at 1042. Contrary to Bowie’s assertions, this Court made no actual finding of legal malpractice in Borne. Therefore, I believe that this issue is without merit.

¶ 45. For the foregoing reasons, I respectfully concur in part and dissent in part with the majority opinion.

GRAVES, J., JOINS THIS OPINION.

      . The court papers do not indicate that an original complaint was ever filed in the trial court case.

      . Hall's first name has various spellings as "Christy” and "Kristie.” We will use "Christy” unless otherwise indicated in a quoted passage from the hearing transcript.

      . Counsel for Bowie granted the Defendants a 20 day extension.

      . The Defendants also claim that Abdeen may have personal knowledge of the case outside his scope as an attorney. However, the Defendants offer no proof of this assertion, and, therefore, this Court has no evidence to address this claim.