text:
    In re APPEAL OF DECISION OF the DISCIPLINARY BOARD NO. 0019153.
    No. 2005-OB-1117.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Disciplinary Counsel; — Plaintiff; Applying for Rehearing of this Court’s order dated August 25, 2006, Appeal of Decision of the Disciplinary Board No. 0019153.

Rehearing granted. The court’s order of August 25, 2006 is recalled and set aside. Treating complainant’s April 20, 2005 letter to this Court as a petition for leave to appeal pursuant to Supreme Court Rule XIX, section 30(C), leave to appeal is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Cullen WASHINGTON v. Willie G. CHARLES, et al.
    No. 2006-C-1528.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Washington, Cullen; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 2003-2442; to the Court of Appeal, Third Circuit, No. CA 05-1426.

Not considered. Not timely filed.


text:
    QUILIO & ASSOCIATES, INC. v. PLAQUEMINES PARISH GOVERNMENT.
    No. 2006-C-1442.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Quilio & Associates Inc.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 40-798; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0803.

Stay denied. Writ denied.


text:
    Sonja JACKSON v. STATE of Louisiana, et al.
    No. 2005-C-2021.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Jackson, Sonja; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. A, No. 98-4060; to the Court of Appeal, Second Circuit, No. 39,759-CA.

Denied.


text:
    STATE of Louisiana v. Albert WOODFOX.
    No. 2005-KP-2476.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Woodfox, Albert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. B, No. 68933-B; to the Court of Appeal, First Circuit, No. 2005 KW 0551.

Denied.


text:
    STATE of Louisiana v. Julie HODGES.
    No. 2005-KP-2551.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Hodges, Julie; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Ascension, Ascension Parish Court, No. 332668; to the Court of Appeal, First Circuit, No(s). 2005 KW 0015, 2005 KW 0766.

Denied.


text:
    STATE of Louisiana v. Everette NORWOOD.
    No. 2006-KO-0463.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Norwood, Everette; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 1-04-53; to the Court of Appeal, First Circuit, No. 2005 KA 0316.

Denied.


text:
    STATE of Louisiana v. Ronnie Deon RUSSELL.
    No. 2006-K-0478.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Russell, Ronnie Deon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 235259; to the Court of Appeal, Second Circuit, No. 40,526-KA.

Denied.


text:
    STATE of Louisiana v. Roger Lee HAVIS.
    No. 2006-K-0485.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Havis, Roger Lee; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. A, No. 394,972; to the Court of Appeal, First Circuit, No. 2005 KA 0905.

Denied.


text:
    STATE of Louisiana v. Cardell K. FUSILIER.
    No. 2006-K-0508.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Fusilier, Cardell K.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 100348; to the Court of Appeal, Third Circuit, No. 05-837.

Denied.


text:
    STATE of Louisiana v. Marklin SCALISI.
    No. 2006-KO-0560.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Scalisi, Marklin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. F, No. 270,297; to the Court of Appeal, Third Circuit, No. 05-380.

Denied.


text:
    STATE of Louisiana v. James WILLIAMS.
    No. 2006-K-0610.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Williams, James;- — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 374699; to the Court of Appeal, First Circuit, No. 2005 KA 0929.

Denied.


text:
    STATE of Louisiana v. Zachary B. ARABIE.
    No. 2006-K-0612.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Arabie, Zachary B.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 374699; to the Court of Appeal, First Circuit, No. 2005 KA 0961.

Denied.


text:
    STATE of Louisiana v. Andrew JOHNIGAN.
    No. 2006-K-0614.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Johnigan, Andrew; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. C, No. 440-273; to the Court of Appeal, Fourth Circuit, No. 2005-KA-1005.

Denied.


text:
    STATE ex rel. Gerald BROUSSARD v. STATE of Louisiana.
    No. 2006-KH-0688.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Broussard, Gerald; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 284-106; to the Court of Appeal, Fourth Circuit, No. 2005-K-1350.

Denied.


text:
    STATE ex rel. Carson Wayne THOMAS v. STATE of Louisiana.
    No. 2006-KH-0690.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Thomas, Carson Wayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of East Feliciana, 20th Judicial District Court Div. A, No. 97-CR-510; to the Court of Appeal, First Circuit, No. 2005 KW 2189.

Denied. Not cognizable on collateral review and repetitive. La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Marlon WASHINGTON v. STATE of Louisiana.
    No. 2006-KH-0691.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Washington, Marlon;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div.'C, No. 213-378; to the Court of Appeal, Second Circuit, No. 40925-KH.

Denied.

TRAYLOR, J., recused.


text:
    STATE ex rel. Gerrell WASHINGTON v. STATE of Louisiana.
    No. 2006-KH-0694.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Washington, Gerrell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. E, Nos. 323,197, 319,-802; to the Court of Appeal, First Circuit, No. 2005 KW 1218.

Denied.


text:
    STATE ex rel. Richard D. FLUKER, Jr. v. STATE of Louisiana.
    No. 2006-KH-0696.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Fluker, Richard D. Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 03-6129; to the Court of Appeal, Fifth Circuit, No. 05-KA-172.

Denied.


text:
    STATE ex rel. Jerome WARREN v. STATE of Louisiana.
    No. 2006-KH-0698.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Warren, Jerome; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 97-7518; to the Court of Appeal, Fifth Circuit, No. 05-KH-920.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172; State v. McKinney, 406 So.2d 160, 161 (La.1981).

KNOLL, J., recused.


text:
    STATE ex rel. Jason REBARDI v. STATE of Louisiana.
    No. 2006-KH-0699.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Rebardi, Jason; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. A, Nos. 99-152, 99-905, 418-791; to the Court of Appeal, First Circuit, No. 2005 KW 2154.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Thomas SWINNER v. STATE of Louisiana.
    No. 2006-KH-0708.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Swinner, Thomas; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 312,915; to the Court of. Appeal, First Circuit, No. 2005 KW 1585.

Denied.


text:
    STATE ex rel. Robert POOLER v. STATE of Louisiana.
    No. 2006-KH-0710.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Pooler, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. H, No. 10,524; to the Court of Appeal, First Circuit, No. 2005 KW 2163.

Denied. Repetitive. Cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Otis GEORGE v. STATE of Louisiana.
    No. 2006-KH-0711.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re George, Otis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 3-81-279.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Willie GORDON v. STATE of Louisiana.
    No. 2006-KH-0713.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Gordon, Willie; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, Nos. 12-89-344, 2-89-387; to the Court of Appeal, First Circuit, No. 2005 KW 1893.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

WEIMER, J., recused.


text:
    STATE ex rel. Tyrone FLETCHER v. STATE of Louisiana.
    No. 2006-KH-0714.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Fletcher, Tyrone;' — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 01-5777; to the Court of Appeal, Fifth Circuit, No. 05-KH-763.

Denied.


text:
    STATE ex rel. Eric PETRY v. STATE of Louisiana.
    No. 2006-KH-0715.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Petry, Eric; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Vermilion, 15th Judicial District Court Div. J, Nos. 26759, 25914; to the Court of Appeal, Third Circuit, No. KH 05-00959.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Michael Lewis GROSSIE v. STATE of Louisiana.
    No. 2006-KH-0728.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Grossie, Michael Lewis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. F, No. 255,686; to the Court of Appeal, Third Circuit, No. KH 05-01099.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Joenathan ROCHELLE v. STATE of Louisiana.
    No. 2006-KH-0736.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Rochelle,- Joenathan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, Nos. CR-645-03, CR-646-03; to the Court of Appeal, Third Circuit, No. KH 05-01024.

Denied.


text:
    STATE ex rel. Tyrone JEFFERS v. STATE of Louisiana.
    No. 2006-KH-0740.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Jeffers, Samuel Tyrone; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 156,667; to the Court of Appeal, Second Circuit, No. 40763-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

VICTORY, J„ recused.


text:
    STATE ex rel. Clyde Dennis GLENN v. STATE of Louisiana.
    No. 2006-CI-0743.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Glenn, Clyde Dennis; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 521,680; to the Court of Appeal, First Circuit, No. 2005 CW 2106.

Denied.


text:
    William C. RICHARDSON v. Sgt James SPURLOCK, et al.
    No. 2006-CI-0744.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Richardson, William C.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of West Feliciana, 20th Judicial District Court Div. A, No. 17,879; to the Court of Appeal, First Circuit, No. 2005 CW 0996.

Denied.

CALOGERO, C.J., would grant the writ.

KNOLL, J., would grant the writ.


text:
    STATE ex rel. Noel BROOKS v. STATE of Louisiana.
    No. 2006-KH-0746.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Brooks, Noel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, No. 352-970; to the Court of Appeal, Fourth Circuit, No. 2005-K-1252.

Denied.


text:
    STATE ex rel. Leroy GIPSON Jr. v. STATE of Louisiana.
    No. 2006-KH-0747.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Gipson, Leroy Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 209,198; to the Court of Appeal, Second Circuit, No. 40967-KH.

Denied.


text:
    STATE ex rel. Harold AUGUSTINE, Jr. v. STATE of Louisiana.
    No. 2006-KH-0750.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Augustine, Harold Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 192039; to the Court of Appeal, First Circuit', No. 2005 KW 2153.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Alan K. ADDISON v. STATE of Louisiana.
    No. 2006-KH-0751.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Addison, Alan K.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Evangeline, 13th Judicial District Court Div. B, No. 63640; to the Court of Appeal, Third Circuit, No. KH 04-00954.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Marlon WING v. STATE of Louisiana.
    No. 2006-KH-0752.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Wing, Marlon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, Nos. 055940, 055939.

Denied. Moot.


text:
    STATE ex rel. Monte W. SMITH v. STATE of Louisiana.
    No. 2006-KH-0753.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Smith, Monte W.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Morehouse, 4th Judicial District Court Div. G, No. 02-683F; to the Court of Appeal, Second Circuit, No. 40936-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Samuel T. JEFFERS v. STATE of Louisiana.
    No. 2006-KH-0758.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Jeffers, Samuel T.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. G, No. 139,149; to the Court of Appeal, Second Circuit, No. 40806-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.

VICTORY, J., recused.


text:
    Wanda Baker SMITH, et al. v. The MUNICIPALITY OF FERRIDAY, et al.
    No. 2006-C-0934.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Ferriday, Town of; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Concordia, 7th Judicial District Court Div. B, Nos. 36263, 36348; to the Court of Appeal, Third Circuit, No(s). 05-756, 05-755.

Denied.

VICTORY, J„ would grant.


text:
    Gay PARKER v. Stephanie ROBINSON, Colony Insurance Company, the Department of Public Safety and the Government Employees Insurance Company.
    No. 2006-C-0944.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Robinson, Stephanie et al.; Colony Insurance Company; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 01-07165; to the Court of Appeal, Fourth Circuit, No. 2005-CA-0160.

Denied.


text:
    Alfonso RHONE v. K. WARD, Warden at D.W.C.C. and Rhodes, Captain at D.W.C.C.
    No. 2006-CP-1227.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Rhone, Alfonso; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 453,221; to the Court of Appeal, First Circuit, No. 2000 CA 1774.

Denied.

CALOGERO, C.J., would grant.

KNOLL, J., would grant.


text:
    Leonard ALLRED v. James BRADLEY and State Farm Insurance Company.
    No. 2006-C-1326.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Bradley, Andrew; State Farm Mutual Automobile Insurance Company; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. A, No. 75442; to the Court of Appeal, First Circuit, No. 2005 CA 1089.

Denied.


text:
    Marcella Marie Thompson TEZENO v. Lester BOUTTE, et al.
    No. 2006-C-1343.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Tezeno, Marcella Marie Thompson; — Plaintiff; Applying for Writ of Cer-tiorari and/or Review, Parish of Iberia, 16th Judicial District Court Div. G, No. 82860; to the Court of Appeal, Third Circuit, No. CA 05-1314.

Denied.


text:
    STATE ex rel. Harold AUGUSTINE, Jr. v. STATE of Louisiana.
    No. 2006-KH-1376.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Augustine, Harold Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, Nos. 214975, 214976; to the Court of Appeal, First Circuit, No(s). 2005 KW 2655, 2005 KW 2722.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    Marion Francis GOWAN, IPP v. Michael S. INGRAM, Judge.
    No. 2006-CP-1382.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Gowan, Marion F.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 97-0683; to the Court of Appeal, Second Circuit, No. 31,-037-CA.

Denied.

WEIMER, J., would grant and remand to the trial court.


text:
    Kelvin WELLS v. The FAMILY COURT, Annette Lassalle, Toni Higginbotham.
    No. 2006-CP-1384.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Wells, Kelvin; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Baton Rouge Family Court, Nos. 135511,135,557.

Denied.


text:
    Collette F. MATHIS v. Michael Ray COOPER.
    No. 2006-C-1389.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Cooper, Michael Ray; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Family Court Parish of East Baton Rouge, No. 137,366; to the Court of Appeal, First Circuit, No. 2005 CA 1215.

Denied.


text:
    STATE ex rel. Harold AUGUSTINE Jr. v. STATE of Louisiana.
    No. 2006-KH-1411.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Augustine, Harold; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. E, No. 192039; to the Court of Appeal, First Circuit, No. 2005 KW 2704.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; La.C.Cr.P. art. 930.3, State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    Janet KLING, Individually and on Behalf of Her Minor Child, Cameron B. Gillis v. LOUISIANA CASINO CRUISES, INC. and ABC Insurance Company.
    No. 2006-C-1433.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Kling, Janet; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 510,199; to the Court of Appeal, First Circuit, No. 2005 CA 0056.

Denied.

CALOGERO, C.J., would grant.


text:
    FIDELITY BANK & TRUST COMPANY v. RIVER CITY FINANCE, INC., Randy J. Pitalo and Rawny G. Pitalo.
    No. 2006-C-1445.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Fidelity Bank & Trust Co.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 522,363; to the Court of Appeal, First Circuit, No. 2005 CA 0738.

Denied.


text:
    Alwyn J. BOUTTE, Sr. v. FIREMAN'S FUND COUNTY MUTUAL INS. CO., et al.
    No. 2006-C-1482.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Fireman’s Fund County Mutual Ins. Co. et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 200N4596; to the Court of Appeal, Third Circuit, No. 06-34.

Denied.

VICTORY, J., would grant.


text:
    Alwyn J. BOUTTE, Sr. v. FIREMAN'S FUND COUNTY MUTUAL INS. CO., et al.
    No. 2006-C-1484.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Bernal, Eva; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. A, No. 200N4596; to the Court of Appeal, Third Circuit, No. 06-34.

Denied.

VICTORY, J., would grant.


text:
    Dewitt WILLIAMS v. A-JAX LUMBER COMPANY.
    No. 2006-C-1486.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Williams, Dewitt; — Plaintiff; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation— District 2, Nos. 03-03326, 00-05590,; to the Court of Appeal, Third Circuit, No. 05-935.

Denied.


text:
    Robert MCANELLY, Nell Wood McAnelly, Megan Elizabeth McAnelly and James Shelton McAnelly v. AERO RESOURCES, LLC, Jerry D. Bryant and Mike Shannon.
    No. 2006-C-1487.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Old Republic Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ascension, 23rd Judicial District Court Div. E, No. 64-581; to the Court of Appeal, First Circuit, No. 05 CA 0351.

Denied.

VICTORY, J., would grant.


text:
    Tom WILCOX, Individually and on Behalf of the Estate of Gaye W. Wilcox v. GAMBLE GUEST CARE CORPORATION, South Park Guest Care Center, and Ron Durel.
    No. 2006-C-1494.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Wilcox, Tom et al.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. C, No. 467,270-B; to the Court of Appeal, Second Circuit, No. 40,650-CA.

Denied.


text:
    Dewitt WILLIAMS v. A-JAX LUMBER COMPANY.
    No. 2006-C-1498.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Capital City Insurance Co.; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation-District 2, Nos. 03-03326, 00-05590,; to the Court of Appeal, Third Circuit, No. 05-935.

Denied.


text:
    LOUISIANA BOARD OF ETHICS v. Faye MCDONALD.
    No. 2006-CC-1521.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re McDonald, Faye; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, Louisiana Board of Ethics, No. 2003-233; to the Court of Appeal, First Circuit, No. 2006 CW 0325.

Denied.


text:
    Stewart HEAD, et al. v. CONTINENTAL CASUALTY COMPANY, et al.
    No. 2006-C-1525.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Risk Management Inc.; — Other; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 05-0138; to the Court of Appeal, Third Circuit, No. CA 06-236.

Denied.


text:
    ASSOCIATED BRANCH PILOTS OF the PORT OF NEW ORLEANS v. MEGGA INDUSTRIES, INC., et al.
    No. 2006-CC-1527.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re North American Capacity Insurance Company; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 48^85; to the Court of Appeal, Fourth Circuit, No. 2006-C-0240.

Denied.


text:
    Deone MEYERS on Behalf of Her Minor Daughter, Kiyante MEYERS v. CITY OF NEW ORLEANS, New Orleans Department of Streets and Downtown Development District.
    No. 2006-C-1530.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Meyers, Deone; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. E, No. 93-4181; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1142.

Denied.


text:
    FORMOSA PLASTICS CORPORATION, U.S.A. v. WILLIAMS OLEFINS, L.L.C.
    No. 2006-CC-1535.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Williams Olefins L.L.C.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 526,621; to the Court of Appeal, First Circuit, No. 2006 CW 0479.

Denied.


text:
    STATE of Louisiana v. Patrick STUTES.
    No. 2006-KK-1536.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re States, Patrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. G, No. 08-04-0463; to the Court of Appeal, First Circuit, No. 2006 KW 0584.

Denied.


text:
    Maria D. PENA-FUNEZ, Jose Funez and Their Children, Stephanie V. Pena, Andrea P. Funez and Angie Funez v. Gary R. NEECE, State Farm Mutual Automobile Insurance Company and Allstate Insurance Company.
    No. 2006-CC-1539.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re State Farm Mutual Auto. Ins.; Neece, Gary R. et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 04-12159; to the Court of Appeal, Fourth Circuit, No. 2006-C-0413.

Denied.

VICTORY, J„ would grant.

TRAYLOR, J., would grant.


text:
    BANK ONE, LOUISIANA v. Nemo VISO.
    No. 2006-C-1564.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Viso, Nemo; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. F, No. 1999-16539; to the Court of Appeal, Fourth Circuit, No. 2004-CA-0392.

Denied.


text:
    James and Shirley BAKER v. ABC INSURANCE CO. and Mesonie Halley.
    No. 2006-C-1569.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Baker, James et al.; Baker, Shirley; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Calca-sieu, 14th Judicial District Court Div. G, No. 2003-4407; to the Court of Appeal, Third Circuit, No. 05-1354.

Denied.


text:
    Marcel TAYLOR v. Patrick J. BRANDNER, Individually, and as Trustee of the Patrick J. Brandner Trust, Jed D'Arensbourg, Peter J. Fennel, Individually, and as Trustee of the Peter J. and Ruth's K. Fennel Trust R-501, Barbara Lawler, T-FAB, Inc. and Ruth's Chris Steak House Franchise, Inc.
    No. 2006-C-1571.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re T-FAB Inc.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. E, No. 615-292; to the Court of Appeal, Fifth Circuit, No. 05-CA-970.

Denied.


text:
    WILLOW, INCORPORATED v. The JEFFERSON PARISH COUNCIL and the Parish of Jefferson.
    No. 2006-C-1596.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Willow Incorporated; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 614-315; to the Court of Appeal, Fifth Circuit, No. 05-CA-754.

Denied.

TRAYLOR, J., would grant.


text:
    Evelyn Rose DRAKE on Her Own Behalf and on Behalf of Her Minor Son, Brandon Perrio v. Sheriff Elmer L. LITCHFIELD, in His Official Capacity as the Duly Elected Sheriff of East Baton Rouge Parish.
    No. 2006-CC-1597.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Public Safety & Corr. Dept, of; Louisiana State of; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. E, No. C-536248; to the Court of Appeal, First Circuit, No. 2006 CW 0550.

Denied.


text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, Department of Health and Hospitals, Division of Administration et al. Kristen M. Rhodes, et al. v. BG Real Estate Services, Inc., et al. Mary Johnson, et al. v. Department of Social Services, Department of Health and Hospitals, Division of Administration, et al.
    No. 2006-C-1598.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Social Services, Department of et al.; Health and Hospitals, Department of Div. of Admin.; Louisiana, State of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 2001-18355, 02-14043; to the Court of Appeal, Fourth Circuit, No(s). 2005-CA-0324, 2005-CA-326, 2005-CA-0325.

Denied.


text:
    Sherry WATTERS, et al. v. DEPARTMENT OF SOCIAL SERVICES, Department of Health and Hospitals, Division of Administration et al. Kristen M. Rhodes, et al. v. BG Real Estate Services, Inc., et al. Mary Johnson, et al. v. Department of Social Services, Department of Health and Hospitals, Division of Administration, et al.
    No. 2006-C-1601.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Specialty National Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. J, Nos. 01-17775, 2001-18355, 02-14043; to the Court of Appeal, Fourth Circuit, No(s). 2005-CA-0324, 2005-CA-0325, 2005-CA-0326.

Denied.


text:
    In re EDC CONTRACTOR INSURANCE LITIGATION.
    No. 2006-CC-1612.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Liberty Mutual Ins. Co.; — Third Party; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. F, No. 98-1984; to the Court of Appeal, Third Circuit, No. CW 05-01064.

Denied.


text:
    John DOE and Jane Doe v. JO ELLEN SMITH MEDICAL FOUNDATION d/b/a Jo Ellen Smith Medical Center and Jo Ellen Smith Psychiatric Center and ABC Insurance Company.
    No. 2006-C-1617.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Tenet Healthsystem Hospitals; P.I.A. Westbank Inc.; Jo Ellen Smith Psychiatric Hospital; Jo Ellen Smith Medical Foundation d/b/a; Jo Ellen Smith Psychiatric Center; Jo Ellen Smith Medical Center; Tenet Healthcare Corporation; — Defendant/s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. N, No. 1997-05365; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1161.

Denied.


text:
    Michelle LACY v. Lewis HALEY and State of Louisiana Department of Culture, Recreation and Tourism. Ivory Webster v. The State of Louisiana Through the Department of Culture and Recreation and Lewis Haley.
    No. 2006-C-1622.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Culture, Recreation & Tourism Dept, of; Louisiana State of et al.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. A, Nos. 2002-16431, 2002-16895; to the Court of Appeal, Fourth Circuit, No(s). 2005-CA-0381, 2005-CA-0382.

Denied.

VICTORY, J., would grant.


text:
    Rebecca L. GRISHAM, et al. v. TE PRODUCTS PIPELINE COMPANY, Limited Partnership.
    No. 2006-CC-1626.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Grisham, Rebecca L. et al.; Messenger, Karen D.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Natchitoches, 10th Judicial District Court Div. A, No. 74,244-A; to the Court of Appeal, Third Circuit, No. CW 06-00287.

Denied.


text:
    J. Lomas JORDAN, Jr. v. Sandra BROUSSARD, et al.
    No. 2006-C-1628.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Jordan, J. Lomas Jr.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. B, No. 2000-3879; to the Court of Appeal, Third Circuit, No. 05-0611.

Denied.


text:
    Jane D. SORREL v. ALLSTATE INSURANCE CO., et al.
    No. 2006-C-1630.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Sorrel, Jane D.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. G, No. 2001-3500 — G; to the Court of Appeal, Third Circuit, No. 05-1618.

Denied.


text:
    Roger PALMER # 322435 v. Glenn G. CORTELLO.
    No. 2006-CP-1637.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Palmer, Roger # 322435; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Allen, 33th Judicial District Court Div. A, No. C-2005-026; to the Court of Appeal, Third Circuit, No. 05-1174.

Denied.


text:
    Charles E. SLAIN, Jr., et al. v. Carnell J. THOMAS, et al.
    No. 2006-C-1649.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Slain, Charles E. Jr. et al.; Washington, Magnolia; Delaney, John; Slain, Brenda; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Con-cordia, 7th Judicial District Court Div. B, No. 39668; to the Court of Appeal, Third Circuit, No. 05-1616.

Denied.


text:
    ASSOCIATED BRANCH PILOTS OF the PORT OF NEW ORLEANS v. MEGGA INDUSTRIES, INC., et al.
    No. 2006-CC-2298.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Megga Industries Inc. et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Plaque-mines, 25th Judicial District Court Div. B, No. 48-485; to the Court of Appeal, Fourth Circuit, No. 2006-C-0240.

Denied.


text:
    Charles A. TREECE v. Judge, Edwin LOMBARD; Warren Spears, Clerk; Judge, Leon Cannizzaro; Michale C. Looney; and $17,962.00 in U.S. Currency; Dale Atkins; Orleans Civil District Ct. Clerk, et al.
    No. 2006-CP-1638.
    Supreme Court of Louisiana.
    Sept. 29, 2006.
   In re Treece, Charles A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. A, No. 0000000.

Denied.


author: PATRICIA RIVET MURRAY, Judge. PATRICIA RIVET MURRAY, Judge.

text:
    Laurence SOLOW, Jack Stolier and Allan Katz v. HEARD, McELROY & VESTAL, L.L.P. and Curtis A. Swanson.
    No. 2005-CA-1028.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 2006.
    Order Reversing in Part on Grant of Rehearing May 31, 2006.

      Stephen H. Kupperman, Craig Isenberg, Barrasso Usdin Kupperman Freeman & Sarver, LLC, New Orleans, Counsel for Plaintiffs/Appellees.
    James F. Shuey, Frilot, Partridge, Kohnke & Clements, L.C., New Orleans, Bernard S. Johnson, Cook, Yancey, King & Galloway, APLC, Shreveport, Counsel for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS Jr.)
   PATRICIA RIVET MURRAY, Judge.

It Heard, McElroy, Vestal, L.L.P. (“HMV”), seeks review from the trial court’s judgment denying its dilatory and declinatory exceptions of improper venue, improper cumulation, and prematurity. Because we find the trial court erred in overruling HMV’s exception of prematurity, we grant HMV’s writ application.

FACTS

HMV is a firm of certified public accountants headquartered in Shreveport, Louisiana. In 2002, HMV was retained by RTIN Holdings, Inc. (“RTIN”) as its auditor. The case stems from the collapse of RTIN, which declared bankruptcy in March 2004. Over the years, Curtis Swanson held various positions in RTIN including chief financial officer, president, and chief executive officer. Mr. Swanson allegedly perpetrated an accounting scheme whereby RTIN significantly overstated its financial position. On March 26, 2003, RTIN submitted its 2002 annual report to the SEC. On the following day, RTIN submitted an amended 2001 annual report. With these filings, RTIN submitted audit reports that purported to be issued by HMV, when in fact HMV had not yet completed its Daudit. The reports expressed no concerns with RTIN’s financial condition. RTIN’s previous auditor had expressed concern as to RTIN’s ability to continue as a going concern in light of significant operating losses reflected in its 2001 audit report.

On April 3, 2003, HMV allegedly issued correspondence to RTIN requesting that it amend its filings with the SEC to remove the audit reports. Although RTIN ignored this request, HMV failed to inform the SEC of the situation until February 2004, ten months later. In February 2004, the SEC announced that it was considering an enforcement action against RTIN. In March 2004, RTIN declared bankruptcy.

In April 2003, Mr. Solow began negotiating with RTIN for the sale of Mr. Solow’s companies, MedEx Systems, Inc. and Pegasus Pharmacy, Inc. Mr. Solow subsequently sold the businesses to RTIN in return for 1.25 million shares of stock, promissory notes, and future payments. Mr. Solow alleges that he relied on the amended 2001 and 2002 financial statements containing HMV’s audit reports. Mr. Solow alleges that he never received payment on the notes and that his shares-are now worthless.

As part of the sale agreement, RTIN was obligated to issue shares of RTIN stock to two of Mr. Solow’s creditors, Jack Stolier, and Allan Katz. Furthermore, RTIN guaranteed that Mr. Solow, Mr. Stolier and Mr. Katz would receive no less than $2 per share when they later sold their stock. Allegedly, Mr. Stolier received |s193,000 shares of RTIN stock and Mr. Katz received 169,000 shares and these shares are now worthless. It is further alleged that HMV was aware of the negotiations and agreements between Mr. Solow and RTIN and that Mr. Solow had relied on the two audit reports submitted by RTIN to the SEC in March 2003. It is still further alleged that HMV knew or was reckless in not knowing that RTIN financial statements were materially misstated and that HMV’s audit reports had been improperly filed with SEC. If HMV had alerted Mr. Solow, Mr. Stolier, and Mr. Katz that RTIN’s financial statements had been filed before HMV completed its audit, it is alleged that they would not have completed the sale.

In June 2004, Mr. Solow filed a copi-plaint against HMV with the Louisiana State Society of Certified Public Accountants (“Society”) requesting that review panel proceedings be instituted under the provisions of LA. R.S. 37:71, et. seq. In December 2004, HMV filed a declaratory action in Caddo Parish against Mr. Solow representing that Mr. Solow has presented a claim for damages against it to the Society and seeking a judicial declaration that Mr. Solow could not establish a cause of action against it for negligence in auditing financial statements pursuant to La. R.S. 37:91(B)(2).

In February 2005, Mr. Solow, Mr. Stolier, and Mr. Katz filed this suit in Orleans Parish against both HMV and Mr. Swanson. In response, HMV filed dilatory and declinatory exceptions of improper venue, improper cumulation, and prematurity. The trial court overruled all the exceptions. As noted at the outset, we find thé trial court erred in failing to sustain the dilatory exception of ^prematurity.- Given our finding that this suit is premature as to HMV, we pretermit considering the other exceptions.

DISCUSSION

The basis for HMV’s exception of prematurity is the requirement that suits against a firm of certified public accountants first be presented to a review panel. The panel requirement is set forth in La. R.S. 37:105, which provides in pertinent part as follows:

Except as provided in this Part, no action against a certified public accountant or firm or his insurer may be commenced in any court before the claimant’s request for review has been presented to a public accountant review panel established pursuant to this Part and the panel has issued a written opinion.

La. R.S. 37:105(A). The plaintiffs contend that HMV effectively waived the review panel requirement by commencing the declaratory judgment action in Caddo Parish. We disagree.

Although La. R.S. 37:107 provides that the parties may waive the panel requirement, it mandates that both parties agree in writing to waive the panel. Particularly, it provides that “[b]y written agreement of both parties, the use of the public accountant review panel may be waived.” La. R.S. 37:107. Procedurally, the proper mechanism to raise a violation of the panel requirement is by a dilatory exception of prematurity. See Saia v. Asher, 2001 1038 (La.App. 1 Cir. 7/10/02), 825 So.2d 1257. The jurisprudence has recognized that the parties may waive the panel by failing to assert a dilatory exception of prematurity timely as required by |sLa. C.C. P. art. 926(B), which states “[a]ll objections which may be raised through the dilatory exception are waived unless pleaded therein.” Saia, 2001 1038 at p. 3, n. 3, 825 So.2d at 1259 (finding panel waived because the parties failed to raise this objection); see also Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 2004-1227 (La.App. 1 Cir. 6/10/05), 916 So.2d 252.

Applying these principles to the instant case, we find the exception of prematurity should have been granted for two reasons. First, the statutory requirement for waiving the panel requirement—a written agreement signed by both parties—was not met. Second, the procedural requirement to raise a violation of the panel requirement—filing a timely exception of prematurity—was met in this case. For these reasons, we find the trial court erred in failing to sustain HMV’s dilatory exception of prematurity. When, as in this case, an exception of prematurity is sustained, the court is required to dismiss the action. La. C.C.P. art. 933. Accordingly, we sustain HMV’s dilatory exception of prematurity and dismiss the plaintiffs’ claims against HMV.

WRIT GRANTED.

ON APPLICATION FOR REHEARING

PATRICIA RIVET MURRAY, Judge.

hln our earlier decision, we sustained the defendants’ dilatory exception of prematurity. We did so because we found the statutory requirement for waiving the accounting review panel—a written agreement signed by both parties'—was not met. On rehearing, the plaintiffs, citing La. R.S. 37:106, raise the issue of whether the panel’s failure to render an opinion within' twelve months after the date of notification of the chairman’s appointment gave them the right to seek relief in a judicial forum. To decide this issue, we ordered the plaintiffs to provide evidence that certain steps were taken. ■ ,

The Louisiana Accountancy Act provides for an automatic dismissal of a panel proceeding in the event the panel fails to render an opinion within twelve months of the giving of notice of the attorney chairman’s appointment, absent a court-ordered extension. La. R.S. 37:106. The plaintiffs provided evidence that the notice of the attorney chairman’s appointment was given in September 2004. It |¾⅛ undisputed that no court ordered extension was obtained. Pursuant to La. R.S. 37:106, the panel was automatically dissolved before this suit was commenced in February 2005. The parties were thus allowed to proceed in a judicial forum. The trial court did not err in overruling the defendants’ exception of prematurity.

Given our finding that the exception of prematurity was properly overruled, we now turn to the questions we pretermitted in our earlier decision of whether the trial court erred in overruling the exceptions of improper venue, improper cumulation, and lis pendens.

The petition establishes that Laurence Solow is domiciled in Jefferson Parish, Jack Stolier is domiciled in Orleans Parish, and Allan Katz is domiciled in the state of Florida. Heard, McElroy & Vestal, L.L.P. (“HMV”) is domiciled in Caddo Parish. Curtis Swanson is domiciled in Montana. The petition asserts that venue is proper in Orleans Parish by application of La. C.C.P. art. 74, which makes venue proper in the parish where the wrongful' conduct occurred or in the parish where the damages were sustainéd, and by application of La. R.S. 13:3203, which permits a Long-Arm suit to be brought in the parish where the plaintiff is domiciled.

Plaintiffs maintain that venue is proper in Orleans Parish for Mr. Stolier’s action against Curtis Swanson under the Long Arm Statute. Plaintiffs further maintain that because Orleans Parish is the location where Mr. Stolier sustained his damages, venue is proper there for Mr. Stolier’s action against HMV. La. C.C.P. art. 74. Stated otherwise, plaintiffs maintain that Mr. Stolier received his stock in | ^Orleans Parish and thus that is the location where his damages were sustained. Additionally, plaintiffs maintain that because Mr. Swanson and HMV are jointly or solidarily liable, Orleans Parish is a proper venue for Mr. Stolier’s action against HMV under either theory. La. C.C.P. art. 74.

HMV contends that plaintiffs must establish Orleans Parish as a place of proper venue for each plaintiff separately because La. C.C.P. art. 463(2) allows cu-mulation of actions by plaintiffs only if venue is proper as to each of the cumulat-ed actions. Regardless of whether venue is appropriate in Orleans Parish for Mr. Stolier’s claims, HMV contends that plaintiffs cannot establish venue in Orleans Parish for their cumulated action.

Plaintiffs acknowledge that they cannot establish Orleans Parish as a place of proper venue for the claims of Mr. Solow and Mr. Katz; however, they argue that judicial efficiency is served by allowing the cumulated claims to proceed in Orleans Parish. Essentially, plaintiffs assert that because venue is proper in Orleans Parish for Mr. Stolier’s actions against Mr. Swanson and HMV, then venue is also proper for Mr. Solow and Mr. Katz’s claims.

Plaintiffs seek to invoke the doctrine of ancillary venue as a basis for establishing venue in Orleans Parish. Explaining that doctrine, the Louisiana Supreme Court in Underwood v. Lane Memorial Hospital, 97-1997, p. 8 (La.7/8/98), 714 So.2d 715, 719, stated:

Ancillary venue applies when separate claims involving common or identical questions of fact share no common venue. The concept of ancillary venue allows such claims to be tried together for reasons of judicial economy and efficiency, even though venue is not proper technically for one claim or one party.

Id. In Underwood, however, no single venue was proper as to all defendants. In that context, the Supreme Court embraced ancillary venue as a solution to the | ¿otherwise objectionable result of trying two cases in separate parishes with the “risk of inconsistent verdicts” being rendered. Alborada v. Union P. RR. Co., 2000-2540, pp. 9-10 (La.App. 4 Cir. 4/25/01), 787 So.2d 431, 438. In this case, however, all the claims share a common venue in Caddo Parish under La. C.C.P. art. 42. For that reason, we find the plaintiffs’ reliance on the doctrine of ancillary venue misplaced. See Foltmer v. James, 2000-2353 (La.App. 4 Cir. 1/17/01), 779 So.2d 57 (declining to exercise ancillary venue because the plaintiffs could have “avoided having to prosecute suits in both Jefferson Parish and Orleans Parish by filing (the entire) suit in Jefferson Parish.”); J & L Industries, L.L.C. v. Reeves, 31,742 (La.App. 2 Cir. 1/7/99), 723 So.2d 541 (finding ancillary venue was inapplicable in part because the lack of a common venue had not been demonstrated). We thus find the trial court erred in overruling the exception of improper cumulation.

Although we find Mr. Katz’s and Mr. Solow’s claims were improperly cumu-lated with Mr. Stolier’s claims, we find no error in the trial court’s finding that Mr. Stolier had the right to litigate his claims in Orleans Parish. As noted, Mr. Stolier is domiciled in Orleans Parish. Venue is proper in Orleans Parish over his claims against Mr. Swanson, who is domiciled in Montana, under La. R.S. 13:3203, the Long Arm Statute. Venue is also proper in Orleans Parish as to Mr. Stolier’s claims against HMV under La. C.C.P. art. 73. The petition alleges sufficient facts that Mr. Swanson and HMV are joint or soli-dary obligors. Particularly, as the plaintiffs point out, the petition alleges that both HMV and Mr. Swanson made material misrepresentations and omissions about the accuracy of RTIN’s financial statements. These allegations, as plaintiffs contend, satisfy the requirement for pleading a joint or solidary obligation. We thus find the trial court Udid not err in denying HMV’s exception of improper venue as to Mr. Stolier’s claims.

Lastly, HMV contends that the trial court erred in failing to dismiss Mr. So-low’s claims pursuant to La. C.C.P. art. 531, lis pendens, based on HMV’s previously filed declaratory action in Caddo Parish. Given our finding that Mr. So-low’s claims were improperly cumulated, it is unnecessary for us to decide this issue.

Accordingly, we grant the plaintiffs’ application for rehearing and reverse our prior decision on the exception of prematurity. We reverse the trial court’s ruling overruling the exception of improper cu-mulation and order the trial court to transfer Mr. Katz’s and Mr. Solow’s improperly cumulated claims to the First Judicial District Court for the Parish of Caddo. We find no error in the trial court’s overruling of the exception of venue as to the claims of Mr. Stolier.

REHEARING GRANTED AND REVERSED IN PART.

      . This matter was initially filed as an appeal, but was subsequently converted to a writ.

      . HMV suggests that RTIN purloined an unsigned draft audit report that HMV had not intended to be final.

      . HMV contends that the sale of Mr. Solow’s companies was completed in June of 2003 and that the sales agreement called for Mr. Solow’s stock to be delivered to an escrow agent to be held until RTIN paid all the cash consideration required by the sales agreement. HMV suggests that the shares of Mr. Solow's companies . either remain in the hands of an escrow agent or have been returned to Mr. Solow. As a result, HMV questions what damage if any Mr. Solow has sustained other than disappointment in not having a lucrative business deal go through. 'HMV emphasizes that Mr. Solow’s statement that “his shares are now worthless’’ is a reference to his RTIN shares, not the shares in his two companies.

      . The record reflects that a preliminary default has been taken in this suit as to Mr. Swanson.

      . Contrary to HMV’s suggestion, we find, as plaintiffs point out, that the provision in La. R.S. 37:108 allowing a party to seek judicial relief while the panel proceeding is pending is not applicable in this case. That provision, by its terms, allows an accounting firm against whom a panel proceeding is pending to seek a judicial determination as to whether a defense is available under La. R.S. 9:5604, which provides the applicable preemption period. Peremption is not at issue in this case.

      .La. R.S. 37:106 provides:
      If an opinion is not rendered by the panel within twelve months after the date notification of the selection of the attorney chairman is given the selected attorney and all other parties, pursuant to R.S. 37:109, suit may be instituted against a certified public accountant or firm. However, either party may petition a court of competent jurisdiction for an order extending the twelve month period for good cause shown. After the twelve-month period or any court-ordered extension thereof, the public accountant review panel established to review the claimant’s complaint shall be dissolved without the necessity of obtaining a court order of dissolution.

      . Plaintiffs obtained service on Mr. Swanson through the Long Arm Statute, La. R.S. 13:3201 et seq. He has never responded to the petition, and plaintiffs have obtained an entry of default against him.

      . La. R.S. 13:3203 also permits a Long-Arm suit to be brought in any parish of proper venue.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. David BUCKLEY.
    No. 2006-KA-0606.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 2, 2006.
    Eddie J. Jordan, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Laura Pavy, Louisiana Appellate Project, Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

|, The appellant, David Buckley, appeals his convictions for one count of unauthorized entry of an inhabited dwelling and one count of simple burglary. Because the transcript of his trial is unavailable, we vacate his convictions and sentences, and we remand the case for further proceedings.

On January 31, 2005, the State filed a bill of information which charged the appellant with one count of violating La. R.S. 14:62.3, unauthorized entry of an inhabited dwelling, and one count of violating La. R.S. 14:62, simple burglary. The appellant entered not guilty pleas at his arraignment on February 10, 2005. On August 10, 2005, a six-person jury found him guilty as charged on both counts. The appellant through counsel made an oral motion for appeal to be supplemented in writing. The court set the matter for sentencing and a multiple bill hearing on August 26, 2005. On August 12, 2005, the State filed a multiple bill of information which charged the appellant to be a fourth offender. According to the minute entry of the same date, the appellant filed the written motion for an appeal which the court granted, making the appeal returnable on October 28, 2005. There is no minute entry for August 26, 2005; the next minute entry is dated January 5, 2006 and reflects that the court set the matter for a status hearing on January 27, 2006. Subsequent minute entries reflect only that the hearing on the multiple bill 1 ¿was reset; as of the date this record was lodged no hearing had been held. The only reference to the sentences imposed is in the January 27, 2006 commitment form executed by the trial court. The commitment form shows that the court imposed a sentence of twelve years on count one, to run consecutively with count two, and a sentence of six years on count two, to run consecutively with count one. The court further ordered that these sentences run concurrently with any other sentences already imposed on the appellant.

Due to the intervention of Hurricane Katrina, the appeal record was not lodged in this Court until May 18, 2006. Included with the record is a certificate from the court reporter stating that she was unable to prepare the transcript of the trial because her tapes which she could salvage from the flooding in her home caused by the hurricane do not include the trial in this matter. Because there is no trial transcript, the facts of the offenses are not known.

By his sole assignment of error, the appellant contends that his convictions and sentences must be vacated because his right to an effective appeal has been violated due to the unavailability of the trial transcript.

As per La. Const. Art. I, § 19: “No person shall be subjected to imprisonment ... without the right of review based upon a complete record of all evidence upon which the judgment is based.” In addition, La.C.Cr.P. art. 843 provides in pertinent part that all trial proceedings be recorded. Where appellate counsel is different than trial counsel, no transcript of trial is available, and the unavailability of the transcript is not due to any fault of the defendant, Louisiana Lcourts have consistently held that the defendant’s right to “appellate review is rendered meaningless ... and the interests of justice require that a defendant be afforded a new, fully-recorded trial.” State v. Ford, 338 So.2d 107, 110 (La.1976). See also State v. Sublet, 2005-0123 (La.App. 4 Cir. 5/18/05), 904 So.2d 778; State v. Harris, 2001-1910 (La.App. 4 Cir. 4/24/02), 817 So.2d 1164.

Here, as in Sublet and Harris, the unavailability of the trial transcript is not due to any action by the appellant. He orally moved for an appeal on the date of his conviction, which was less than a month before Hurricane Katrina struck, and the court reporter has certified that she cannot provide the transcript. Because the transcript was lost due to no action or inaction by the appellant, his right to a meaningful review of his convictions and sentences was violated.

For the reasons stated above, the appellant’s convictions and sentences on both counts are vacated, and this matter is remanded to the trial court for further proceedings.

CONVICTIONS AND SENTENCES ON BOTH COUNTS VACATED; REMANDED

      . La. R.S. 14:62.3 carries a maximum sentence of six years. If the appellant had not been adjudicated a multiple offender at the time the court imposed this sentence, it appears illegally excessive. However, any error is moot in light of the fact that the appellants convictions and sentences must be vacated.


text:
    Arthur DUMAINE v. GULF GROUP, INC. and XYZ Insurance Company.
    No. 2006-CA-0463.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 2, 2006.

      Donald F. de Boisblanc, Donald F. de Boisblanc, Jr., Rand Smith, Jr., New Orleans, LA, for Plaintiff/Appellant.
    Michael S. Futrell, Connick and Con-nick, L.L.C., Metairie, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   MICHAEL E. KIRBY, Judge.

hThe plaintiff, Arthur Dumaine (“Mr.Dumaine”) appeals the trial court’s granting of summary judgment in favor of the defendant, Gulf Group, Inc. (“Gulf’). For the reasons ascribed below, we reverse and remand.

STATEMENT OF FACTS AND PROCEDURAL HISTORY:

Mr. Dumaine alleges injury as a result of a fall that occurred outside his home on July 26, 2002. Mr. Dumaine resided at 429 Hammond Highway on the Orleans Parish side of the 17th Street Canal. At the time of the incident, there was ongoing construction in the area related to the new bridge project. Gulf was the primary contractor on the project pursuant to a contract with the U.S. Army Corps of Engineers.

On .the day of the accident, Mr. Dumaine maintains he was bringing garbage to the curb when he stepped into a hole that was left in the ground after the removal of one of the construction project traffic control signs. Mr. Dumaine alleges that as a result of the fall, he sustained an injury to his testicles, which necessitated surgery. It is Mr. Dumaine’s contention that Gulf placed a sign on his 12property adjacent to the curb and later removed the sign leaving the open hole in the ground.

The instant lawsuit was filed against Gulf. In response, Gulf filed a motion for summary judgment, which was heard in the district court on February 16, 2006. In support of the motion, Gulf presented the affidavit of Mike Morningstar (“Mr.Morningstar”), General Superintendent of Gulf, who claimed to have personal knowledge regarding Gulfs work on the construction project. Mr. Morningstar stated that Gulf did not place nor remove the traffic sign as complained of by Mr. Dumaine, and further, that Gulf did not direct any of its subcontractors to place or remove the sign. Also presented in support of the motion for summary judgment were excerpts from Mr. Dumaine’s deposition to show that he lacked personal knowledge of the identity of the workers who placed or removed the sign in question.

It appears from the record that at the hearing on the motion for summary judgment, Gulf referenced excerpts from the deposition of Gulfs Vice President, Sam Stone (“Mr.Stone”). Mr. Stone stated that he was not on the jobsite everyday, and further, that he had no personal knowledge of the sign in question. Mr. Stone did state, however, that Gulf provided the majority of the signs and barricades that were used to direct traffic at the jobsite.

After the matter was taken under advisement, Mr. Dumaine attempted to introduce Mr. Stone’s entire deposition in connection with the filing of a supplemental memorandum. Mr. Dumaine contends that he filed the supplemental memorandum with the clerk of court and that a copy of the motion was delivered to the judge’s chambers. He later argued in his motion for new trial that the supplemental memorandum was not in the court record, suggesting that the trial |,judge may not have had the benefit of the memorandum and the entire deposition when he granted the motion for summary judgment in favor of Gulf. We have no way of knowing whether the trial court considered Mr. Du-maine’s supplemental memorandum and the entire deposition of Mr. Stone. Regardless, Mr. Stone’s entire deposition is part of the record before us; and, therefore, we will consider the deposition testimony in our de novo review.

After taking the matter under advisement, summary judgment was granted in favor of Gulf on February 17, 2006. Mr. Dumaine’s motion for new trial was denied on March 3, 2006. This timely appeal followed.

On appeal, Mr. Dumaine asserts the following assignments of error: 1) the trial court erred by failing to weigh the circumstantial evidence presented in opposition to the summary judgment; 2) the trial court erred by weighing the likelihood that the non-mover will prevail on the merits rather than, as the law requires, simply whether there are issues of material fact; 3) the trial court made its ruling without benefit of Mr. Dumaine’s Supplemental Memorandum in Opposition to Motion for Summary Judgment which was inexplicably missing from the record; 4) Gulf failed to make a prima facie showing that there was an absence of factual support for Mr. Du-maine’s claim; and 5) the trial court erred in shifting the burden to the plaintiff to present evidence of a material factual dispute.

STANDARD OF REVIEW:

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 2003-2311, p. 4 (La.1/19/05), 893 So.2d 773, 776. The mover bears the burden of proof. La. C.C.P. art. 966(C)(2). If the mover meets this initial burden, the burden then shifts to. the other party to present factual support adequate to establish that he will be able to satisfy the evidentia-ry burden at trial. Richard v. Hall, 2003-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137. Thereafter, if the non-moving party fails to meet this burden, there is no genuine issue of material' fact and the mover is entitled to summary judgment as a matter of law. Id. The Supreme Court has recognized that a “genuine issue” is a “triable issue,” an issue in which reasonable persons could disagree. Jones v. Estate of Santiago, 2003-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751). A “material fact” is one as to which “its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Id.

Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050. The court must draw those inferences from the undisputed facts, which are most favorable to the party opposing the motion. Id.

To determine whether the trial court erred in granting summary judgment in favor of Gulf, we must determine whether there.are any genuine issues of material fact. In conducting our review, this Court must construe any factual inferences drawn from the evidence in favor of Mr. Dumaine who is opposing the Motion for Summary Judgment. Further, in determining whether an issue is genuine, this Court cannot make determinations on the merits of Mr. Dumaine’s claim, make | Bcredibility determinations, or evaluate the weight of the evidence. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236; Coto v. J. Ray McDermott, 99-1866 (La.App. 4 Cir. 10/25/00), 772 So.2d 828, 830.

DISCUSSION:

In its judgment, the trial court stated:
“In the instant matter, plaintiff has failed to provide any evidence that the defendant, Gulf Group, Inc., did in fact remove the sign in question which led to the injuries complained of in this lawsuit. At the hearing, plaintiff merely pointed out that defendant could not prove that he didn’t. As stated above, it is the plaintiffs burden to provide this element of proof. In the Court’s opinion he has not.”

Mr. Dumaine argues that the trial court erred by failing to or improperly weighing the circumstantial evidence. It is Mr. Du-maine’s contention that strong circumstantial evidence was presented to show that Gulf, or its agents or employees, placed and subsequently removed the traffic sign, thereby creating a hazardous condition.

Gulf counters that Mr. Dumaine is relying on allegations or conjecture to establish a genuine issue of material fact. More specifically, Gulf asserts that Mr. Dumaine must present evidence to establish that Gulf placed or removed the sign in question. This Court disagrees.

It is well established that circumstantial evidence may be used to prove a plaintiffs case. In Lacey v. Louisiana Coca-Cola Bottling Co., 452 So.2d 162, 164 (La.1984), the Louisiana Supreme Court stated: “If circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable 1 ^hypothesis with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.”

Our courts have also established that circumstantial evidence may be used to defeat a motion for summary judgment. Lyons v. Airdyne Lafayette, Inc., 563 So.2d 260 (La.1990); Brooks v. State Farm Mut. Auto. Ins. Co., 2003-0389, (La.App. 4 Cir. 9/24/03), 855 So.2d 419, 424. The circumstantial evidence must exclude with a fair amount of certainty every other reasonable hypothesis and not all other possible causes. Booth v. Acands, 2003-0511, p. 8 (La.App. 4 Cir. 8/13/03), 854 So.2d 979, 984.

In Wood v. Becnel, 2002-1730 (La.App. 4 Cir. 2/26/03), 840 So.2d 1225, the plaintiffs, Mr. and Mrs. Wood, filed suit against then-neighbor, Mr. Becnel, alleging that certain trees on their property had been killed by an application of the herbicide, Bromacil, and that Mr. Becnel or persons under his direct control had intentionally or negligently applied Bromacil to the trees. The trial court granted summary judgment in favor of Mr. Becnel based on a lack of direct evidence and insufficient circumstantial evidence to prove that Mr. Becnel poisoned the Woods’ trees. We reversed, finding that the circumstantial evidence presented by the Woods was sufficient to create a genuine issue of material fact. Moreover, we determined that eyewitness or other direct testimony was not required for the Woods to prove their case.

The Woods alleged that they observed Mr. Becnel spraying chemicals on his property and that they observed grass dying along the fence line between their property and Mr. Becnel’s property. Thereafter, a number of the Woods’ trees died. Soil samples from their property showed the presence of Bromacil. Mr. Becnel testified that he had been in the citrus industry for twenty-seven years and |7that he was certified by the State of Louisiana to obtain and apply commercial chemicals such as Bromacil.

In light of these facts, and the long history of difficulties between these neighbors, the Woods were convinced that Mr. Becnel killed their trees. The petition alleged that Mr. Becnel was the only person who had both the motive to kill the trees and the licenses and expertise necessary to obtain Bromacil and apply it to the trees.

In finding that the circumstantial evidence submitted by the Woods was sufficient to create a material issue of fact, we stated: “The material fact that is at issue is whether Mr. Becnel poisoned the Woods’ trees. A jury or other trier of fact should determine whether the circumstantial evidence excludes with a fair, but not absolute, amount of certainty all reasonable hypotheses for the destruction of the trees other than the hypothesis that Mr. Becnel poisoned them.”

In the present case, we find that Gulf, relying on the affidavit of Mr. Morningstar and the deposition testimony of Mr. Stone and Mr. Dumaine, met its initial burden of proof required by La. C.C.P. art 966. Thereafter, the burden shifted to Mr. Du-maine to show the existence of a genuine issue of material fact.

After our de novo review of the record, we find that Mr. Dumaine presented sufficient circumstantial evidence to create a material issue of fact and defeat Gulfs motion for summary judgment. In support of his assertion that Gulf was responsible for the hole, Mr. Dumaine relied on Mr. Stone’s deposition testimony. Mr. Stone explained that Gulf was the primary contractor on the construction project and that the contract with the U.S. Army Corp of Engineers required Gulf to place traffic control signs. By his own admission, Mr. Stone stated that Gulf provided at least 95% of the equipment (which included the signs, barrels and ^barricades) necessary during the project. Mr. Stone’s testimony on this issue is as follows:

Q. Did Gulf Group provide the signs and the barrels and the barricades that were used to direct traffic at the 17th Street job site?
A. Yes.
Q. Okay. It’s all Gulf Group’s equipment.
A. No, not all of it. A majority of it.
Q. Majority? Which of the equipment used was not Gulf Group’s equipment?
A. I believe probably some of the electric flashing signs and maybe — There could be some of the temporary barricades. There’s even some temporary signs that don’t belong to us.
Q. When you say ours what do you mean by that? Do you own it?
A. For the majority we were under contract, either rent or own the majority of the temporary facilities.
Q. Okay. So the majority of it?
A. Of the temporary facilities, yes.
Q. Now when you say majority would that be 90%, 95%?
A. I would say 95%.
Q. And the other 5% would be?
A. I think, you know, there’s a tendency on jobs like this, like D.O.T, to maybe have some signs up there and Jefferson Parish may have some signs.

It is further evident from Mr. Stone’s testimony that the sign referred to by Mr. Dumaine (the one which says “BRIDGE CLOSED TO TRUCK TRAFFIC”) was in fact the type of sign that Gulf put up. In reference to the particular sign, Mr. | ¡¡Stone was asked, “Is this a sign supplied by Gulf?” He answered, ‘Tes. It could be, yeah. We have signs like that on the job.”

CONCLUSION:

After reviewing the facts in a light more favorable to Mr. Dumaine, the party opposing the motion for summary judgment, we find that Mr. Dumaine has successfully raised a material issue of fact as to whether Gulf was responsible for the removal of the sign, which allegedly contributed to his fall. Because the factual inferences reasonably drawn from the circumstantial evidence presented by Mr. Dumaine are to be construed in his favor at this juncture in the proceedings, summary judgment is not warranted. Accordingly, we find that the trial court erred in granting summary judgment in favor of Gulf and we, therefore, reverse the trial court’s granting of summary judgment and remand this case for further proceedings.

REVERSED AND REMANDED


author: TERRI F. LOVE, Judge.

text:
    Carmen J. LINO v. ALLSTATE INSURANCE COMPANY, Lawrence Y. Yatsu and Elizabeth Yatsu Athmann.
    No. 2006-CA-0166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 2, 2006.

      John D. Sileo, Allan Berger, Allan Berger & Associates, New Orleans, LA, for PlaintiffiAppellee.
    Jeffery P. Lozes, Lozes <& Ponder, New Orleans, LA, for Defendants/Appellants.
    (Court composed of Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE, Judge DAVID S. GORBATY).
   TERRI F. LOVE, Judge.

11 This appeal arises from a personal injury action. The judgment of the trial court granted general and special damages in favor of plaintiff, Carmen Lino, and against the defendants, Elizabeth Yatsu Athmann and Allstate Insurance Company. The defendants appeal. For reasons ascribed below, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

At approximately 10:00 p.m. on August 27, 2002, Carmen Lino (“Ms. Lino”) was operating her 1996 Kia automobile in an easterly direction on Airline Highway at its entrance with I — 10. Ms. Lino was traveling on the upslope of Airline Highway before it turns into Tulane Avenue. As she proceeded up the overpass, the lights on her vehicle began to dim and the vehicle shut down. Ms. Lino attempted to restart the vehicle for approximately twenty minutes. She also attempted to call her friend, Mario, who installed a new battery in the vehicle the day before. Ms. Lino did not call 911 or any other emergency assistance. Ms. Lino was unable to turn on the vehicle’s lights or emergency flashers because of the electrical problem. Ms. Lino testified that while she was stalled, many vehicles passed her or went around her without incident.

| aAfter attempting to restart the vehicle, Ms. Lino exited the vehicle and raised the hood. Ms. Lino was standing to the passenger side of her vehicle when a 1997 Toyota Avalon, driven by Elizabeth Yatsu Athmann (“Ms.Athmann”), struck Ms. Lino’s vehicle from the rear. Ms. Lino’s testimony does not indicate the length of time she remained outside of the vehicle before the impact occurred.

Ms. Athmann was traveling east on Airline Highway. Just prior to the accident, Ms. Athmann stopped at a red traffic signal. When the signal turned green, she proceeded straight ahead with the intention of going up the overpass toward Tulane Avenue. Ms. Athmann testified that she was in the same lane as Ms. Lino’s vehicle, which was stalled three to four car lengths ahead. Ms. Athmann explained that she did not see Ms. Lino’s vehicle until it was in front of her. She stated that she tried to brake, swerved to the left, and hit the back corner of Ms. Lino’s vehicle. At that point, she saw Ms. Lino being thrown to the ground. Ms. Athmann further testified she did not notice that the hood was up on Ms. Lino’s vehicle until after the impact. Ms. Athmann confirmed that Ms. Lino’s vehicle did not have lights or emergency flashers. Contrary to Ms. Lino’s statement that the accident scene was well lit, Ms. Athmann testified that some of the streetlights in the area of the accident were dark.

An ambulance transported Ms. Lino from the scene to Charity Hospital. Ms. Lino sustained a fractured elbow and soft tissue injuries.

Ms. Lino filed suit against Ms. Athmann and her insurer, Allstate Insurance Company (“Allstate”), seeking recovery for her personal injuries and property damage. Ms. Athmann and Ms. Lino testified. The trial court rendered a judgment in favor of Ms. Lino and against Ms. Athmann and Allstate. The trial |scourt assessed 90% fault to Ms. Athmann and 10% fault to Ms. Lino. Ms. Lino was awarded general damages in the amount of $40,000, property damage in the amount of $2,949.49, and medical expenses totaling $6,616.25, less 10% for Ms. Lino’s contributory negligence.

Ms. Athmann and Allstate appeal the judgment of the trial court, assigning two errors. First, they assert the trial court erred in assessing only 10% fault to Ms. Lino. Second, they contend the trial court erred in awarding $40,000 in general damages to Ms. Lino. The award for medical expenses and property damage is not at issue in this appeal.

ALLOCATION OF FAULT

As with other factual determinations, the trier of fact is vested with much discretion in allocating fault. Foley v. Entergy La., Inc., 04-1967, p. 3 (La.App. 4 Cir. 2/15/06), 925 So.2d 638, 641. An adjustment in an apportionment of fault will only be made if it is “clearly wrong,” and only “to the extent of lowering or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion.” Clement v. Frey, 95-1119 (La.1/16/96), 666 So.2d 607, 611.

This Court described the very wide latitude afforded the fact finder in allocating comparative fault in Riley v. Reliance Ins. Co., 97-0445 (La.App. 4 Cir. 11/19/97), 703 So.2d 158, 163:

Thus, Clement tells us that the allocation of fault is not an exact science, or the search for one precise ratio. Rather, it is an acceptable range and any allocation by the jury within that range cannot be “clearly wrong.” In Clement, the Supreme Court held that any allocation of fault falling between a ratio of 50/50 and 75/25 would be reasonable. [ /Phis very broad range is illustrative of the analogy referred to in the passage quoted above from Clement, comparing fault and quantum determinations. Mindful that in quantum determinations, Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994), affords the factfinder “great, even vast” discretion, the Clement analogy mandates this Court to afford considerable latitude to the trial court in matters of fault allocation.

In comparing the relative fault of the parties, several factors are considered, including: “(1) whether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought.” Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985).

In written reasons for judgment in the case sub judice, the trial court stated:

In the instant case, Ms. Lino never abandoned her vehicle. Further, she attempted to start her vehicle for approximately 20 minutes without success. She then got out of her car and was attempting to signal oncoming drivers by lifting her hood at the time of the collision. Finally, Ms. Lino was unable to turn on her flashers because the electrical system was totally out due to battery failure.
Ms. Lino also testified that she attempted to phone the mechanic who repaired her car the day before, but was unsuccessful. The only other measure that Ms. Lino could have possibly taken would have been to move to the rear of her car and signal oncoming motorists away from her stalled vehicle.
The Court finds that her actions described above were the actions of a reasonably prudent person in her situation.
The court finds Ms. Lino’s account to be more credible, and after reviewing the evidence and appropriate jurisprudence, especially the principles articulated in Doyle v. McKinney, et al, 732 So.2d 128, the Court finds that Ms. Lino’s fault is to be assessed at 10%.

|BOn appeal, Ms. Athmann and Allstate argue that Ms. Lino should have been found 100%> at fault for violating La. R.S. 32:141, which provides, in part:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.

Ms. Athmann and Allstate submit that Ms. Lino took no actions to warn oncoming motorists for an extended period of time as her gray vehicle was stalled at night without lights in a section of roadway in which some streetlights were dark. They further contend that although Ms. Lino had a cell phone, she did not attempt to call 911 for assistance, nor did she call for a tow truck.

In support of their argument, the Ms. Athmann and Allstate site Doyle v. McKinney, 98-1102 (La.App. 4 Cir. 4/7/99), 732 So.2d 128, wherein this Court discussed the responsibility of a driver of a stalled vehicle. In Doyle, Mr. Jones, the driver of the stalled vehicle, left his vehicle for an hour and a half in order to go to his friend’s house to seek assistance. The emergency flashers did not work and the driver made no attempt to warn other motorists. This Court found the driver of |fithe stalled vehicle 75% at fault, finding that Mr. Jones’ actions were not the actions of a prudent person under the circumstances. This Court further determined that Mr. Jones could have flagged oncoming motorists away from his stalled vehicle or he could have called a tow truck as soon as he was able to get to a phone.

Finally, Ms. Athmann and Allstate assert that there was no evidence produced at trial to indicate that Ms. Athmann was operating her vehicle above the speed limit or that she was inattentive. Rather, they submit that the accident would not have occurred but for Ms. Lino’s failure to warn traffic as required by La. R.S. 32:141.

In opposition, Ms. Lino submits that La. R.S. 32:141 does not apply to the case sub judice. Ms. Lino asserts that, pursuant to Section B of the statute, there is no violation or prohibition against stopping on a highway if the vehicle stops because it became disabled or stalled. We agree. The statute indicates that the provisions do not apply to a disabled vehicle if it is impossible to avoid stopping on the main traveled portion of the highway. Furthermore, it was within the discretion of the trial court to analyze the testimony of the witnesses and determine that Ms. Lino did not have an option under La. R.S. 32:141 to move her car out of harms way. Duroncelet v. McLendon, 01-0022, p. 5 (La.App. 4 Cir. 11/14/01), 801 So.2d 1169, 1172.

Whether Ms. Lino acted reasonably under the circumstances involves a factual determination. The trial court distinguished this case from Doyle and made a factual finding that Ms. Lino acted as a reasonably prudent person in her situation and assessed her only 10% fault for the accident. We see no manifest error in this finding, and we will not disturb the trial court’s ruling.

17Regarding Ms. Athmann’s actions, the trial court concluded that Ms. Athmann breached her duty of a following motorist by rear-ending Ms. Lino. The trial comb referenced the duty of a following motorist to maintain a careful lookout, to observe the obstructions present and to exercise caution to avoid them. Breaux v. Larkin, 93-2544 (La.App. 4 Cir. 5/26/94), 637 So.2d 1313, 1315.

The case law documents that Ms. Athmann “had the duty to focus” her “attention to the front to see what was in her path, what might be entering his path or about to enter his path.” Duroncelet, 01-0022, p. 5, 801 So.2d at 1172. “A motorist may generally assume that the road is safe for travel and he/she is not required to anticipate unexpected obstructions in his/ her lane of traffic which are, under the circumstances, difficult to discover.” Wimberly v. McCoy Tree Surgery Co., 33, 761, p. 4 (La.App. 2 Cir. 8/25/00), 766 So.2d 729, 733, citing U.S. Fid. & Chiar. Co. v. State, Through the Dep’t of Highways, 339 So.2d 780 (La.1976). However, a motorist’s duty of reasonable care includes the duty to keep the vehicle under control. Updegraff v. State ex rel Dep’t of Transp. and Dev., 01-1048, p. 8 (La.App. 4 Cir. 10/02/02), 828 So.2d 693, 700. “Further, a motorist has a duty to maintain a proper lookout for hazards, which by the use of ordinary care and observation, he should be able to see in time to avoid running into them.” Id.

The court stated in Wimberly:

In deciding whether a motorist who strikes a stationary vehicle obstructing his/her lane should have observed the vehicle in time to avoid a collision, there are no hard and fast rules. In making this determination, all of the facts and circumstances surrounding a particular case must be considered, including the locality of the accident, the lighting conditions, the respective positions of the vehicles, visibility and the presence and operation of lighting or warning equipment.

Wimberly, 33,761, p. 4, 766 So.2d at 733. Reasonableness is applied as the standard. Id. at 733.

In the case sub judice, Ms. Athmann testified that she was traveling in the same lane as Ms. Lino, and that Ms. Lino’s vehicle was stalled three to four car lengths directly ahead of where Ms. Ath-mann was stopped at a red light. Based on the facts, we cannot say that the trial court erred in finding that Ms. Athmann breached her duty as a motorist to focus her attention to the front to see what was in her path. Accordingly, we do not find that the allocation of 90% fault to Ms. Athmann was clearly wrong.

GENERAL DAMAGES

Ms. Athmann and Allstate next contend that the award of $40,000 in general damages was excessive, considering Ms. Lino sustained a non-displaced fracture of the elbow, which was treated conservatively and did not require a hard cast. In Raines v. Columbia Lakeland Med. Ctr., 05-0243, p. 5 (La.App. 4 Cir. 1/4/06), 923 So.2d 170, 173, this Court discussed the review of general damage awards as follows:

The standard of appellate review of a damage award is clear abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). The Supreme Court addressed the standards governing appellate review of general damage awards in Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206. Specifically, the Supreme Court stated: In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. Reck v. Stevens, 373 So.2d 498 (La.1979). The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Id. Only if the reviewing court determines that the trial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976). Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award. Id. Andrus v. State Farm Mutual Auto. Ins. Co., 95-0801 (La.3/22/96), 670 So.2d 1206, 1210.

Reversal of a general damage award requires a showing that the trier of fact abused the great discretion accorded in awarding damages. The award must be so high or so low in proportion to the injury that it “shocks the conscience.” Casbon v. Phillips, 04-1717, p. 6 (La.App. 4 Cir. 2/16/05), 897 So.2d 790, 793, quoting Moore v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir.1991).

In support of their position that the general damage award was excessive, Ms. Athmann and Allstate cite Nelson v. La. Stadium and Exposition Dist., 01-1764 (La.App. 4 Cir. 11/13/02), 832 So.2d 1043. In Nelson, this Court affirmed an award of $22,500 for a sixty-two year old woman who sustained a non-displaced fracture of her right elbow, with residual pain. Id. Ms. Lino counters that the award is not excessive when considering the soft tissue injuries to her neck and back for which she sought treatment for eight months.

The record before us shows that Ms. Lino was thrown to the ground on impact of the collision. An ambulance transported her to the emergency room where she was treated and released later that night. Ms. Lino sought treatment with orthopedic specialist, Dr. Gordon P. Nutik (“Dr.Nutik”). According to the medical records, Ms. Lino was diagnosed with a non-displaced fracture of the radial head of the right elbow, as well as soft tissue strains of the neck, mid back, right shoulder, and right wrist. Dr. Nutik recommended physical therapy and prescribed Celebrex. Ms. Lino received physical therapy from Premier Medical |inRehab from September 3, 2002, until March 17, 2003. On Ms. Lino’s last recorded visit with Di. Nutik, April 23, 2003, Dr. Nutik prescribed Vioxx and recommended that Ms. Lino undergo an MRI of her shoulder. There is no évidence in the record that the MRI was performed. The record further reflects that Ms. Lino missed six weeks of work as a result of her injuries.

At trial, Ms. Lino testified that her elbow had not healed completely, and that she still experienced pain when she worked. Ms. Lino stated that she continued to take Motrin for pain in her elbow, neck, and back.

Considering the evidence, we find that the general damages awarded to Ms. Lino were not excessive, and that there was no abuse of discretion by the trial court.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED

      . Prior to trial, Lawrence Yatsu, the owner of the vehicle driven by Ms. Athmann, was dismissed as a defendant.

      . Ms. Lino stipulated that her damages did not exceed $50,000.

      . Ms. Athmann and Allstate stipulated to Ms. Lino's medical expenses and property damages prior to trial.