author: ROLAND L. BELSOME, Judge.

text:
    Sheila ROBIN v. Jason W. WONG, BSCPT, and Pendleton Memorial Methodist Hospital.
    No. 2007-CA-0547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.
    Peter E. Sperling, Carl E. Hellmers III, Frilot Partridge, LC, New Orleans, LA, for Healthsouth Corporation.

      Darryl J. Foster, Lemle & Kelleher, L.L.P., New Orleans, LA, for Pendleton Memorial Methodist Hospital.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

|, Third Party Plaintiff, Pendleton Memorial Methodist Hospital (“Methodist”) appeals the trial court’s finding that the Third Party Defendant, HealthSouth Corporation (“HealthSouth”) does not owe a duty to defend Methodist.

STATEMENT OF THE CASE

Plaintiff, Sheila Robin, filed suit alleging Jason Wong (‘Wong”), a physical therapist, caused injury to her shoulder during a therapy session on July 22, 1998. Sheila also named Methodist as a defendant, alleging Methodist employed Wong in Methodist’s physical and occupational therapy unit.

Initially, Methodist contracted with HealthFocus, Inc. (“HealthFocus”) to provide physical and occupational therapies at Methodist. The contract, dated June 8, 1993 (“Contract”) provided that the “Contractor (HealthFocus) shall hold the Hospital (Methodist) harmless for any claims, loss or damage which the Hospital may suffer as a result of any act of contractor or its agents or employees”. The Contract allowed for assignments. HealthFocus assigned its rights to Mariner Post-Acute Network, Inc. (Mariner), which continued to operate the physical and occupational therapy unit through its subsidiary, Reliability, under the 1993 Contract.

| aAt the time of Plaintiffs injury, Reliability employed Wong as a therapist. Mariner/Rehability undertook Methodist’s defense in the instant case pursuant to the Contract. Eventually, HealthSouth Corporation (“HealthSouth”) acquired the assets of Mariner/Rehability. Mariner/Reh-ability continued to provide the defense in the instant case, along with two others, after the sale. Methodist consented to this assignment in writing (“Consent to Assignment”). The Consent to Assignment stipulated, “The undersigned will accept performance by HEALTHSOUTH or one of its wholly owned subsidiaries of all the obligations and rights of Rehability Hospital Services, Inc.” Thereafter, Mariner/Rehability filed bankruptcy prior to the resolution of the instant case and notified Methodist it could no longer continue defending any of the pending cases.

In response, Methodist tendered defense of the outstanding cases to HealthSouth pursuant to the terms of the Contract and Consent to Assignment. HealthSouth refused Methodist’s tender of defense, resulting in Methodist filing a third party demand. Methodist and HealthSouth filed cross motions for summary judgment. Methodist claimed in its motion for summary judgment that HealthSouth owed both a defense and indemnity to Methodist pursuant to the Contract and Consent to Assignment. HealthSouth contended in its motion for summary judgment that it had no duty to defend or indemnify Methodist for acts occurring prior to its asset purchase from Mariner. The trial court granted Methodist’s motion in part, and denied HealthSouth’s motion in part, finding HealthSouth owed a duty of indemnity in the instant case. The trial court denied Methodist’s motion in part and granted HealthSouth’s motion in part, finding HealthSouth did not owe a duty to defend in the instant case. The trial court found |sno just reason for delay and certified the judgment as a final judgment for immediate appeal, pursuant to La. C.C.P. art. 1915(B)(1).

Methodist appealed, contending the trial court erred in granting HealthSouth’s motion for summary judgment in part, finding HealthSouth owed no duty to defend in the instant case.

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, 2003-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. In the case sub judice, the parties contest the interpretation of a contract provision, not any material facts. The interpretation of contract provisions is typically a matter of law that properly may be decided on motion for summary judgment. Kops v. Lee, 2003-1407, p. 5 (La.App. 4 Cir. 3/31/04), 871 So.2d 1187, 1191, citing Bolton v. Tulane University of Louisiana, 96-1246 (La.App. 4 Cir. 1/29/97), 692 So.2d 1113; Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031.

DISCUSSION

The issue presented is whether the language “any claims, loss or damage” embraces costs of defense, including attorney’s fees. As a general rule, attorney’s fees are not allowed except where authorized by statute or contract. Nassif v. Sunrise Homes, Inc., 1998-3193, p. 2 (La.6/29/99), 739 So.2d 183, 184, citing Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386, 390 (1970). | ¿Further, indemnity agreements are strictly construed and the party seeking to enforce such an agreement bears the burden of proof. McGill v. Cochran-Sysco Foods, 35,898, p. 6 (La.App. 2 Cir. 5/8/02), 818 So.2d 301, 306.

Methodist cited Burns v. McDermott, Inc., 95-0195 (La.App. 1 Cir. 11/9/95), 665 So.2d 76 and Curtis v. Curtis, 28,698 (La. App. 2 Cir. 9/25/96), 680 So.2d 1327 in support of its argument that attorney’s fees are recoverable pursuant to an indemnity provision absent specific language.

In Burns, the indemnity provision contained the following language: “Subcontractor shall protect, defend, indemnify and hold harmless McDermott”. The contract at issue therein further stated that “Subcontractor shall be obligated to bear the expense of the investigations and defenses of all claims or demands”. As the language in the contract specifically provided for indemnification for costs of defenses, the court concluded attorney’s fees would be a cost of defense. Burns, 95-0195, 665 So.2d at 79-80.

In Curtis, the parties entered into a community property settlement which obligated each party to assume debt and which further provided that either party would have the “unrestricted right to demand of the other indemnification for any loss” sustained by the other’s failure to pay. The court found the clause constituted a “hold harmless” agreement and that an obligor under such agreements is liable for reasonable attorney’s fees. Curtis, 28,-698, 680 So.2d at 1332. More specifically the court found that the word “loss” in a hold harmless or indemnity agreement includes attorney’s fees. Id.

In Faucheaux v. Prytania Medical Complex Owners Ass’n., 93-2042 (La.App. 4 Cir. 8/17/94), 642 So.2d 242, 243, this Court found the language “indemnify and save harmless ... against and from any loss, costs, damages, and |5expenses” did not encompass a duty to defend. This language is strikingly similar to the language at issue in this case. The Contract in this instance provides that the Contractor, or HealthSouth, “shall hold the Hospital (Methodist) harmless for any claims, loss or damage which the Hospital may suffer as a result of any act of contractor or its agents or employees”.

Although the Curtis’ court’s reasoning that the word “loss” encompasses attorney’s fees is logical, this Court recognizes Faucheaux as controlling. Thus, this Court reads the indemnification clause at issue to exclude a duty to defend.

Methodist also argues that because HealthSouth tendered a defense in cases arising after its assignment of the Contract, the intent of the parties to include a duty to defend in the indemnification clause was established. La. C.C. art. 2053 provides that a doubtful provision must be interpreted in light of conduct of the parties before and after the formation of the contract. However, as the movant and the party seeking to enforce the agreement, Methodist retained the burden of proof. La. C.C.P. art. 966(C)(2); McGill, 35,898, p. 6, 818 So.2d at 306. Methodist provided no factual support for its assertion that HealthSouth tendered a defense in any case, whether arising before or after its purchase of Mariner.

As a court of record, this Court must limit its review to that which is in the record before us. Ventura v. Rubio, 2000-0682, pp. 3-4 (La.App. 4 Cir. 3/16/01), 785 So.2d 880, 885. In reviewing the record before us, we find no evidence of Health-South’s tendering a defense before or after the assignment of the Contract. Hence, this Court must find no duty to defend on the part of HealthSouth.

\ CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the trial court denying Methodist’s motion in part and granting HealthSouth’s motion in part, finding HealthSouth did not owe a duty to defend in the instant case, is affirmed.

AFFIRMED.

      . HealthSouth neglected to appeal or file an answer relative to the finding of the trial court that HealthSouth owed a duty to indemnify. Hence, this Court will not consider that issue. La. C.C.P. art. 2133; Saacks v. Mohawk Carpet Corp., 2003-0386, p. 25 (La.App. 4 Cir. 8/20/03), 855 So.2d 359, 375.


source: Caselaw Access Project

author: Judge LEON A. CANNIZZARO, JR.

license: Public Domain

text:
    STATE of Louisiana v. James GIBSON.
    No. 2007-KA-0530.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.

      Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Appellee, James Gibson.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge LEON A. CANNIZZARO, JR.
   Judge LEON A. CANNIZZARO, JR.

| Jfhe defendant, James Gibson, filed a motion to quash the bill of information against him. The district court granted the motion, and the State of Louisiana is now appealing the judgment granting Mr. Gibson’s motion.

STATEMENT OF THE CASE

On March 16, 2004, Mr. Gibson was charged by a bill of information in Case No. 446-406 of the Criminal District Court for the Parish of Orleans with the offense of possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A)(1). At his arraignment, Mr. Gibson pled not guilty. Motion hearings were reset by the district court judge twice and were continued twice by the State. On October 19, 2004, the State entered a nolle 'prosequi, and the case was dismissed.

On January 14, 2005, Mr. Gibson was again charged by a bill of information with one count of possession with the intent to distribute marijuana in violation of La. R.S. 40:966(A)(1), and the original case against him was reinstituted in Case No. 455-375 of the Criminal District Court for the Parish of Orleans. At his | ¡.arraignment Mr. Gibson again pled not guilty. His trial was set for September 20, 2005. Because Hurricane Katrina intervened, Mr. Gibson was not tried on that date. On November 15, 2006, the trial was set for January 23, 2007. Four days before the trial date, Mr. Gibson filed a motion to quash the indictment claiming that his right to a speedy trial had been denied and that the reinstitution of his case violated certain provisions of the Louisiana Code of Criminal Procedure. On January 23, 2007, the district court judge granted Mr. Gibson’s motion to quash. The State is now appealing that decision.

STATEMENT OF THE FACTS

The record does not reflect the facts regarding Mr. Gibson’s arrest or the underlying charge against him. Those facts, however, are not relevant to the issues raised on appeal.

DISCUSSION

The State has raised two issues for review on appeal. First, the State argues that Mr. Gibson was not denied his right to a speedy trial. Second, the State contends that the prosecution of Mr. Gibson did not contravene the provisions of La.C.Cr.P. art. 578 that set forth the time limit within which criminal trials must be commenced.

Right to a Speedy Trial

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial .... ” The right to a speedy trial is imposed on the states by the Due Process | aClause of the Fourteenth Amendment to the United States Constitution. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). The Louisiana Constitution also provides that “[ejvery person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy ... trial_” La. Const. art. I, § 16.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court established four factors to be considered in determining whether a defendant’s right to a speedy trial has been violated. In State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, the Louisiana Supreme Court discussed these factors as follows:

In determining whether a defendant’s right to speedy trial has been violated, courts are required to assess the following factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant.” [sic] Barker, 407 U.S. at 530, 92 S.Ct. 2182; State v. Alfred, 337 So.2d 1049, 1054 (1976) [on rehearing]. Under the rules established in Barker, none of the four factors listed above is “either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial.” Id. at 533, 92 S.Ct. 2182. Instead, they are “related factors and must be considered together ... in a difficult and sensitive balancing process.” Id.

00-3347, p. 15, 847 So.2d at 1210. As stated by the Louisiana Supreme Court in State v. Reaves, 376 So.2d 136, 138 (La.1979), “[t]his Court has assiduously followed the Barker v. Wingo analysis in evaluating Louisiana speedy trial claims.”

Both the Louisiana Supreme Court and this Court have recognized that the State has the authority to enter a nolle prosequi and then to reinstate the charges Lagainst a criminal defendant. See, e.g., State v. Batiste, 05-1571 (La.10/17/06), 939 So.2d 1245; State v. Dees, 06-1198 (La.App. 4 Cir. 1/10/07), 950 So.2d 50. La.C.Cr.P. art. 691 provides in relevant part that “[t]he district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court.”

La.C.Cr.P. art. 576 provides in relevant part as follows:

When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney ... before the first witness is sworn at the trial on the merits, ... a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578.

La.C.Cr.P. art. 578 provides that in a felony case, trial must commence no later than two years from the date of the institution of the prosecution.

The defendant’s right to a speedy trial, however, supersedes the authority of La.C.Cr.P. arts. 576 and 578. In State v. Shanklin, 06-1151 (La.App. 4 Cir. 2/14/07), 953 So.2d 84, this Court, citing State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, and State v. Scott, 04-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843, writ denied, 06-0822 (La.10/13/06), 939 So.2d 356, stated that “[t]he jurisprudence, however, has recognized that this authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial.” 06-1151, pp. 2-3, 953 So.2d at 86.

IsThis Court has held that a defendant challenging the entrance of a nolle prose-qui and the subsequent reinstitution of the charges that were dismissed has the burden of proof in showing that his constitutional right to a speedy trial was violated. Dees, 06-1198, p. 3, 950 So.2d at 52; State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. Thus, we must determine whether or not Mr. Gibson has proven that his constitutional right to a speedy trial was violated. In doing so, we must consider the four Barker factors set forth in the Barker v. Wingo case discussed above.

Length of the Delay

In Love the Louisiana Supreme Court stated that “[t]he first of the Barker factors, the length of the delay, is a threshold requirement for courts reviewing speedy trial claims.” Love, 00-3347, p. 16, 847 So.2d at 1210. The first Barker factor serves as a triggering mechanism for further inquiry into the other three Barker factors. Id. Only if the delay is “presumptively prejudicial” will further inquiry into the other three Barker factors be necessary. Id. In the instant case the State has conceded that the thirty-four month delay between March 16, 2004, the date that the initial bill of information was filed, and January 23, 2007, the date that Mr. Gibson’s motion to quash was granted, could be deemed to be presumptively prejudicial. Therefore, the remaining three Barker factors must be considered to determine whether or not Mr. Gibson was denied his right to a speedy trial.

Reason for the Delay

The record in the instant case shows that between March 16, 2004, the date that the initial bill of information was filed, and October 10, 2004, the date that Case No. 446-406 was dismissed, hearings were reset twice by the district court | ¿judge and hearings were continued twice on the State’s motion. The State’s first continuance was granted on August 9, 2004, and the State’s second continuance was granted on September 9, 2004. Case No. 446-406 was dismissed by the State on October 19, 2004, and reinstituted in Case No. 455-375 by the State on January 14, 2005. The delays attributable to the State between March 16, 2004, when the initial bill of information was filed, and January 14, 2005, when the charges against Mr. Gibson were reinstituted, total approximately five months.

Once the case was reinstituted, Mr. Gibson was responsible for several delays that cannot be attributed to the State. On March 21, 2005, Mr. Gibson failed to appear for a scheduled hearing, and a warrant for his arrest was issued. He was arrested in mid-May of 2005, and the motion hearing that he missed was rescheduled for June 14, 2005. Therefore, a delay of approximately three months from March 21, 2005, until June 14, 2005, was attributable to Mr. Gibson’s failure to appear at the March 21, 2005 hearing.

On June 14, 2005, the State was granted a continuance of the hearing that was rescheduled for that date. The rescheduled hearing was not held until August 9, 2005, when the trial was set for September 20, 2005. The State is, therefore, responsible for a delay of approximately two months during the time period from June 14, 2005, until the August 9, 2005 hearing.

On August 29, 2005, Hurricane Katrina hit New Orleans. Based on the district court judge’s estimate of when the Criminal District Court for the Parish of Orleans was first able to function after Hurricane Katrina, a delay of approximately seven months from August 29, 2005, until the spring of 2006, occurred as a result of Hurricane Katrina. This delay cannot be attributed to any party.

17From the spring of 2006, until July 26, 2006, a period of approximately four to five months, no activity occurred in the instant case. This delay of approximately four to five months is attributable to the State.

A hearing was scheduled for July 26, 2006, but Mr. Gibson was not served with notice of the hearing. The district court judge reset the hearing for August 21, 2006. Mr. Gibson failed to appear for the August 21 hearing, and a warrant was issued for his arrest. He appeared in court four days later, and a hearing was scheduled for October 20, 2006. The October 20, 2006 hearing was continued on the motion of Mr. Gibson. Mr. Gibson next appeared in court on November 15, 2006, when trial was set for January 23, 2007. Mr. Gibson filed his motion to quash on January 19, 2007, and on January 23, 2007, his motion to quash was granted.

Mr. Gibson was responsible for the delay between October 20, 2006, and November 15, 2006, due to his request for a continuance. He cannot, however, be held responsible for the delay between August 21, 2006, when he failed to appear in court, and October 20, 2006, when he requested a continuance, because the record does not contain proof that he actually received the notice of the August 21 hearing that was mailed to him.

In counting the months of delay attributable to the State, we find that of the delay of approximately thirty-four months in the instant case only a portion of the delay could be attributed to the State. The other delays in the instant case were attributable to the district court, to Mr. Gibson, and to the effect of Hurricane Katrina. We do not find that the delays caused by the State were sufficient to deny Mr. Gibson his right to a speedy trial.

IsAssertion of the Right to a Speedy Trial

There is nothing in the record showing that Mr. Gibson filed a motion for a speedy trial. Additionally, there is nothing in the record to indicate that Mr. Gibson objected to the State’s motions for continuances. Only when Mr. Gibson filed his motion to quash did he ever object to the length of time that the prosecution was taking in the instant case.

Prejudice to the Defendant

The United States Supreme Court in the Barker case identified three areas of interest of the defendant that the right to a speedy trial was designed to protect. The Supreme Court stated:

This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.

407 U.S. 514 at 532, 92 S.Ct. 2182 at 2193 (footnote omitted). In his brief, Mr. Gibson asserts that he has been prejudiced because the crime with which he was charged occurred in an area of New Orleans that was devastated by Hurricane Katrina. Thus, he contends that his neighborhood has been destroyed and that, therefore, the evidence and witnesses that he needed to assist in his case were no longer available.

With respect to the first of the interests enumerated in the Barker case, the only times that Mr. Gibson was incarcerated for the crime with which he is charged | ain the instant case were when he failed to appear in court and a warrant was issued for his arrest. With respect to the second interest, Mr. Gibson has not claimed or shown that he has suffered undue anxiety or concern because of the delays in the instant case. With respect to the third interest, Mr. Gibson has alleged that he has been prejudiced by the loss of witnesses and evidence. He has not, however, identified any witnesses who were missing, he has not shown that any avenues by which he could have investigated their whereabouts have been foreclosed to him, and he has not identified any evidence that was lost.

Based on the foregoing discussion of the applicability of the Barker factors to the instant case, although there was a lengthy delay involved in the instant case, we do not find that Mr. Gibson’s right to a speedy trial was violated. Hurricane Katrina and delays attributable to the district court or to Mr. Gibson constituted as much of a delay in this case as the actions of the State did. Mr. Gibson did not file a motion for a speedy trial and did not raise the issue until he filed a motion to quash his bill of information, and he has not demonstrated any prejudice that resulted from the State’s actions. Therefore, we find merit in the State’s contention that Mr. Gibson’s right to a speedy trial was not violated.

Compliance with La.C.Cr.P. art. 578

La.C.Cr.P. art. 578 provides in relevant part as follows:

A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
(2) In other felony cases [those other than capital cases] after two years from the date of institution of the prosecution

|inLa.C.Cr.P. art. 579 sets forth certain events that shall interrupt the time limitation set forth in La,C.Cr.P. art. 578. Article 579 provides in relevant part as follows:

A. The period of limitation established by Article 578 shall be interrupted if:
* * *
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

(Emphasis added).

When the first bill of information was filed against Mr. Gibson on March 16, 2004, under La.C.Cr.P. art. 578, the State had two years from that date to commence Mr. Gibson’s trial. Thus, the State originally had until March 16, 2006, to try Mr. Gibson. On March 21, 2005, however, Mr. Gibson failed to appear for a hearing, although he had been given actual notice of the March 21 hearing date on February 10, 2005, in open court. Therefore, pursuant to La.C.Cr.P. art. 579(A)(3), the two-year period established by La.C.Cr.P. art. 578 was interrupted by Mr. Gibson’s failure to appear at a proceeding of which he had actual notice.

Because La.C.Cr.P. art. 579(B) provides that the limitation periods set forth in La.C.Cr.P. art. 578 “commence to run anew from the date the cause of the interruption no longer exists,” the two-year period prescribed by article 578 began to run from the date of Mr. Gibson’s arrest in mid-May of 2005. Pursuant to La. jC.Cr.P.n art. 579(A)(2) and (B), the State then had two years from the date of his arrest to try Mr. Gibson. The trial in this case was set for January 23, 2007, which was within the two-year time limit for trying the case. Thus, the State has not failed to comply with the provisions of La.C.Cr.P. art. 578 as asserted by Mr. Gibson. This assignment of error has merit.

DECREE

We find that both of the State’s assignments of error have merit. We further find that the district court erred in granting Mr. Gibson’s motion to quash. Therefore, the judgment of the district court is reversed, and the instant case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . Mr. Gibson also failed to appear in court on August 21, 2006, but the record does not contain evidence that he received the notice that was mailed to him advising him of the hearing date. Therefore, because there is no proof in the record that Mr. Gibson received actual notice of that hearing as required by La.C.Cr.P. art. 579(A)(3), the two-year time period set forth in La.C.Cr.P. art. 578 was not interrupted.


author: THOMAS F. DALEY, Judge.

text:
    STATE of Louisiana v. Isaac SINGLETON, III.
    No. 07-KA-321.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.
    Molly L. Balfour, Assistant Attorney General, Louisiana Department of Justice, Baton Rouge, Louisiana, for Plaintiff/Ap-pellee.
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

|a0n April 6, 2004, defendant, Isaac Singleton, III, was found guilty of aggravated rape after a bench trial. On original appeal, this Court conditionally affirmed defendant’s conviction and sentence and remanded the case to the trial court for an evidentiary hearing on the question of whether defendant validly waived his right to a jury trial. State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922 So.2d 647, 654.

An evidentiary hearing was conducted on July 6, 2006, and the trial court concluded that defendant knowingly and intelligently waived his right to a jury trial. Defendant appeals that ruling. For the following reasons, we affirm.

FACTS

The facts of this case are found in this Court’s opinion in defendant’s first appeal, State v. Singleton, supra at 649-50. Because the facts of the offense are not at issue in this appeal, they need not be reiterated.

¡¿ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred in finding he validly waived his right to a jury trial because he had no understanding of his waiver and did not understand the benefit of a jury trial until after he was convicted. Further, he argues he never signed the motion waiving his rights and the record does not contain a colloquy between the trial court and defendant regarding the waiver. He notes that there is no evidence in the record to show he validly waived his right to a jury, except for the recollections of the trial judge and his defense attorney.

The State responds that the testimonies made clear that defendant desired a bench trial. It argues that defendant’s trial attorney discussed with defendant the merits of a bench trial versus a jury trial and that defendant did not object to the judge trial when trial commenced.

In the present case, on October 28, 2003, defense counsel filed a Motion to Waive Trial by Jury. In the motion, which was signed only by defense counsel, counsel asserted that he consulted with defendant and that defendant fully understood and wished to waive his right to a trial by jury. On the same date that the motion was filed, the trial judge granted the motion, allowing defendant to waive his right to trial by jury and to be tried by judge alone. There is no other mention of defendant’s jury rights contained in the record.

On remand at the evidentiary hearing, defendant testified that he did not tell his attorney to submit a document waiving his right to a jury trial and that he did not sign any document to that effect. He testified that his counsel told him a bench trial would be best because he would get less time than he would with a jury trial. Specifically, defendant stated the following:

Well, when he explained it to me over the phone, and the way he told it to me, he said, if you go with a jury trial and the victim goes to boo-hooing and this and that and get the 1 ¿people to believe and the judge will believe her, you can get — you’ll get lesser time if you go with a judge trial. He said I’ll get 60 to 70 years. That’s what he told me.

After the trial court asked about his opinion at that point, defendant responded, “When he told me that, I said, well, I said, well, you the lawyer, you know what you’re talking about. He said yes, and he hung up the phone. And that was it.”

Defendant claimed he did not speak to his counsel thereafter. He admitted that he did not present objections at the bench trial and stated he did not raise his objection sooner because he did not understand. He explained to the judge that he found out after trial that it was better to have a jury trial because ten out of twelve people render a verdict instead of the one judge.

Nathan Folse, defendant’s former trial attorney, testified at the hearing as well. He testified that when defendant turned down the plea offer made by the State, they discussed in depth his choice between a bench trial or a trial by a jury of twelve. Mr. Folse testified that because of the sensitivity of the case involving defendant’s minor niece, they discussed that it may be in defendant’s best interest to be judged by the judge alone, rather than a twelve-person jury. He explained that prior to trial and during the case they had discussions of whether the case would be best heard by a judge instead of a jury. They discussed counsel’s experience with juries in St. James Parish and their conviction rates, the nature of the case involving the alleged rape of a minor child and the involvement of defendant’s family. Mr. Folse testified explicitly that he discussed this with defendant numerous times, with many discussions being in person. Mr. Folse testified that defendant was aware that he would file a Motion to Waive a Jury Trial and was in agreement. Mr. Folse stated that defendant never expressed reservations about having a bench trial and that he first became aware of |fidefendant’s objection to the bench trial when he received a call about being a witness in this matter. Mr. Folse could not recall why defendant’s signature was not obtained on the motion.

Also at the hearing, the trial court asked Mr. Folse if prior to trial Mr. Folse had talked to the court about defendant wanting to waive his jury trial. Mr. Folse responded that there was a discussion at the bench that defendant wanted to waive his right to a trial by jury and the court tried to advise that he might want a jury trial. According to Mr. Folse, defendant was advised of what the trial court thought might be in his best interest, but defendant decided he wanted to waive his right to a jury trial and have a bench trial.

On remand, at the evidentiary hearing, the trial court stated the following:

Okay. Based on the testimony and based on the court’s knowledge of this particular — the intricacies of this particular case, there’s no doubt in this court’s mind that this defendant did, in fact, waive his right to a jury trial. At no time did he express to this court that he wanted to have a jury trial.
As a matter of fact, the court remembers, and it’s not on the record, but the court remembers this defendant specifically telling his counsel that he wanted to have a bench trial. And the court told his counsel that he should have a jury trial, or advised him he might want to have a jury trial, but he insisted on having a bench trial.
Therefore, based on this particular hearing, the court finds no merit whatsoever in the defendant’s contention that he did not knowingly and intelligently waive his right to a jury trial, and let the record so reflect.

Although the right to a jury trial may be waived in non-capital cases, the right must be “knowingly and intelligently” waived. LSA-C.Cr.P. art. 780(A); LSA-Const. Art. I, § 17(A). Waiver of this right is never presumed. State v. Goodwin, 05-51 (La.App. 5 Cir. 6/28/05), 908 So.2d 56, 59 (citation omitted).

The preferred method for the district court to advise the defendant of the right to trial by jury is in open court before obtaining a waiver, however, such | ^practice is not statutorily required; in addition, although preferred, it is not necessary for the defendant to waive the jury trial right personally. State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498, 508, unit denied, 05-1450 (La.1/13/06), 920 So.2d 235 (citations omitted). Defense counsel may waive the defendant’s right to a jury trial on his behalf as long as the defendant’s decision to do so was made knowingly and intelligently. Id.

In the present case, a Motion to Waive Trial by Jury was filed by defense counsel. Although this Court, in defendant’s first appeal, found the attorney-filed motion was insufficient to show a knowing and intelligent waiver, we find that the testimonies elicited at the evidentiary hearing show a valid waiver.

At the evidentiary hearing, defendant acknowledged at least one telephone conversation with defense counsel where his counsel explained the benefit of a bench trial rather than a jury trial. Defendant said that when his defense counsel told him this, defendant responded that he was the lawyer and knew what he was talking about. At the evidentiary hearing, however, defendant explained to the judge he found out after trial that it was better to have a jury trial because ten out of twelve people render a verdict instead of the one judge. It is noted that this Court has recognized that “nothing in the statutes or the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction.” State v. Goodwin, 06-439 (La.App. 5 Cir. 12/27/06), 948 So.2d 1125, 1127 (citation omitted).

Mr. Folse testified at the hearing that they had discussed in depth his choice between a bench trial and a jury trial on several occasions. Although Mr. Folse could not explain why defendant failed to sign the motion, he testified that defendant was fully aware that he would file a Motion to Waive a Jury Trial and was in agreement. Mr. Folse also recalled defendant deciding to waive his right to |7a jury trial after the trial court expressed what it thought might be in defendant’s best interest.

In addition, although not on the record, the trial court recalled defendant specifically telling defense counsel that he wanted a bench trial.

The evidence produced at the evidentia-ry hearing makes the present case distinguishable from other cases in which this Court has reversed convictions based on insufficient evidence of a valid jury trial waiver.

In State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d 1151, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093, on second appeal, defendant challenged the trial court’s ruling that there was a valid jury trial waiver. This Court found the record did not show a valid jury waiver. In Lokey, the defense counsel testified at the evidentiary hearing that he spoke to the defendant about the benefits of choosing a judge trial and that the defendant indicated he understood the advantages and chose a bench trial. In reversing the trial court’s ruling, this Court found that the testimony at the evidentiary hearing was inadequate to show that the defense counsel sufficiently explained the defendant’s rights regarding a jury trial. This Court noted that no discussion of the choice of a judge trial versus a jury trial was made on the record and that there was no evidence either at the trial or in the minutes to indicate the defendant waived his right to a jury either personally or through his attorney. This Court also noted that the defense counsel did not, at trial, refer to any conversation with the defendant on the issue, although the defense counsel had testified on remand that he had discussed the issue with the defendant.

The present case can be distinguished from Lokey. In the present case, there is evidence in the record of a waiver of defendant’s right to a jury, through his |sattorney. The motion filed October 28, 2003 reflected that counsel consulted with defendant and that defendant fully understood and wished to waive his right to a trial by jury. See, State v. Singleton, 922 So.2d at 653.

In State v. Onstead, 05-410 (La.App. 5 Cir. 1/17/06), 922 So.2d 622, after remanding the case for an evidentiary hearing to determine whether defendant had knowingly and intelligently waived his right to a jury trial, this Court decided the evidence did not support the determination that the defendant’s jury trial waiver was knowing and intelligent and, therefore, vacated the defendant’s conviction and sentence and remanded the case for a new trial. At the evidentiary hearing, the defendant and the assistant district attorney, the prosecutor who tried the State’s case against the defendant, were called as witnesses. This Court recognized that the defendant testified he did not understand the ramifications of waiving his right to a jury trial and that he did not recall discussing the matter with his attorney. This Court also recognized that the only other witness at the evidentiary hearing was the assistant district attorney, who was not in a position to know how much the defense counsel had explained to the defendant in advance of trial or how much the defendant understood with regard to the jury waiver.

The present case can be distinguished from Onstead. Mr. Folse testified in the present case and, as defense counsel, was in a position to know the length of the discussions regarding bench trials and jury trials that he had with defendant as well as defendant’s understanding of his options.

The present case is also distinguishable from State v. James, 99-1047 (La.App. 5 Cir. 1/25/00), 751 So.2d 419. In James, following an evidentiary hearing on remand that found a valid jury trial waiver, this Court reversed the defendant’s conviction, finding that the evidence failed to show the defendant waived his right.

In James, on remand, the State conceded that the original appellate record was devoid of a jury trial waiver and introduced the transcript of the defendant’s | ;)arraignment where a trial judge advised the defendant of his right to waive a jury trial. This Court noted the transcript reflected that the trial court informed the defendant of the right, but that there was no response from the defendant or his counsel that he understood or waived that right. Also, at the evidentiary hearing, the defendant’s former counsel testified regarding his representation of the defendant. The defense counsel testified that he presumed the defendant waived his right to a jury trial because he did not have a jury trial. This Court recognized the law does not allow such a presumption and that although the defense counsel probably advised the defendant of his right to trial by jury, the evidence did not show the defendant waived the right.

Unlike James, the present case does not include presumptions, but involves testimony by defendant’s former counsel who specifically remembered defendant and his discussions regarding bench trials, jury trials, and the waiver. Also, a waiver was filed by defense counsel. Accordingly, we affirm the trial court’s ruling that found defendant validly waived his right to a jury trial.

AFFIRMED.

      . A Motion to Waive Trial by Jury was filed on October 28, 2003.

      . Defendant waived his attorney/client privilege with Mr. Folse for purposes of this motion.

      . However, it is noted that this Court previously concluded it could not consider the trial judge's comments as evidence in State v. Lokey, 04-616 (La.App. 5 Cir. 11/30/04), 889 So.2d 1151, 1154, writ denied, 04-3195 (La.5/6/05), 901 So.2d 1093.


author: EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    Michael BENNETT v. RYDER TRUCK RENTAL, INC.
    No. 07-CA-220.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.
    Kevin A. Rieth, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Steven B. Rabalais, Joan Wallace, Raba-lais, Hanna & Hebert, Lafayette, LA, and Guy D. Perrier, Rodney J. Lacoste, Jr., Michael J. Gautier, Jr., Perrier & Lacoste, LLC, New Orleans, LA, for Defendant/Ap-pellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

I «.This is an appeal by Michael Bennett, plaintiff-appellant, from a judgment sustaining an exception of prescription urged by Ryder Truck Rental, Inc., defendant-appellee, and Sentry Insurance, interve-nor-appellee. For the following reasons we set aside that judgment and remand the matter to the district court for further proceedings.

The issue here is whether plaintiffs counsel complied with the requirements of La. R.S. 13:850, relating to facsimile filing of a petition. The undisputed facts are these. Plaintiffs action against Ryder was to prescribe on July 24, 2004, a Saturday. On Friday, July 28, 2004, his counsel filed with the Jefferson Parish Clerk of Court by facsimile transmission an original petition in this matter. The Clerk docketed the petition as No. 609-982, and duly sent counsel a receipt which set forth a filing fee of $255, representing $250 for filing and $5 for the ^transmission fee. That document had a notation stating simply “[p]lease enclose this acknowledgement when the original pleading is filed.” On Wednesday, July 28, 2004, counsel filed the original signed petition with the Clerk and tendered his check for $255. He failed, however, to attach the acknowledgement or to inform the receiving clerk that this was a facsimile filing. As a result, the case was docketed as No. 610-155. Of the $255, the first $250 was applied to the regular filing fee, and a credit of $5 was entered on counsel’s behalf. Two days later, on Friday, July 30, 2004, the Clerk’s office noted that the original petition had not been filed in case No. 609-982, and telephoned counsel’s office to inquire about the faxed petition. The Clerk’s office was then informed that the original petition had indeed been filed and the appropriate fees paid. On further inquiry, the Clerk’s office discovered what had happened, but on advice of counsel a decision was made not to change any of the paperwork.

The case bearing No. 610-155 proceeded in district court, and Ryder and Sentry urged an exception of prescription. They argued that because No. 610-155 was not filed until July 28, 2004, the claim had prescribed on its face. The trial court agreed and sustained the exception. This appeal followed.

The applicable facsimile filing statute is La. R.S. 13:850. That statute requires that for a document sent to the clerk by facsimile transmission to have force or effect, the sender must within five days, exclusive of legal holidays forward to the clerk:

1) The original signed document.
2) The applicable filing fee, if any.
3) A transmission fee of five dollars.

As the above facts show, counsel complied with all three requirements. The facts that the clerk assigned a second case number to the original signed petition Land showed the $5 transmission fee as a credit are of no consequence to the force and effect of the document filed by facsimile transmission. We finally note that the statute provides that the district courts may provide by rule for other matters related to facsimile filings. It was suggested at the hearing that the instruction on the Clerk’s filing acknowledgement form that the litigant present that form when submitting the original signed document was a rule instituted by the clerk pursuant to the statute. However, there was no showing that such a rule was ever instituted by the courts. We thus deem this argument to be without merit.

Based on the above undisputed facts, we hold that plaintiffs counsel complied with the statute in timely presenting to the Clerk the original signed document and tendering both the filing fee and the facsimile transmission fee, and that the July 23, 2004, facsimile transmitted document interrupted prescription on the claim. In this circumstance it was error for the district judge to sustain the exception of prescription. We therefore vacate the judgment and remand the matter for further proceedings.

JUDGMENT VACATED, REMANDED FOR FURTHER PROCEEDINGS.


author: WALTER J. ROTHSCHILD, Judge.

text:
    MERIAL LIMITED v. Albert G. LAGRAIZE, Individually and d/b/a Airways Animal Hospital.
    No. 07-CA-182.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.
    Hazel A. Sanchez, Attorney at Law, Spicewood, Texas, for Plaintiff/Appellee.
    Cynthia A. De Luca, Martha J. Maher, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

12Albert Lagraize (“Lagraize”) appeals from a trial court judgment dismissing his “Petition for Annulment of Judgment Pursuant to C.C.P. Article 2002(2).” For the reasons which follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On April 11, 2001, Merial Limited (“Merial”) filed a “Petition on Open Account,” asserting that it sold and delivered goods to Lagraize for his business, Airways Animal Hospital, and that there was an outstanding balance of $5,097.22 that was due and owing to Merial. In its petition, Merial sought a judgment for the outstanding balance, finance charges, attorney fees, and costs.

Merial requested service on Lagraize at 3636 Severn Avenue in Metairie, Louisiana, but the sheriffs return dated April 17, 2001 indicates that he was not served because he was “NOT AT THIS ADDRESS PER RES. FOR 10 YEARS.” Merial then requested service of Lagraize at 3620 Edenborn Avenue in Metairie, |3but on May 24, 2001, the sheriff returned the petition unserved indicating “UNABLE TO SERVE AFTER MAKING 5 ATTEMPTS.” On February 20, 2002, Merial filed a “Motion to Appoint Special Deputy,” and on February 25, 2002, the trial court appointed Dwayne Alexander (“Alexander”) to effect service on Lagraize. The service return signed by Alexander and filed into the record on May 9, 2002 indicates that service was made on Lagraize on April 13, 2002, and it contains the notation, “ *Mr. Albert Lagraize acknowledged service but refused to sign.” The record also contains a document that appears to be an affidavit of Alexander, but is not notarized, indicating that Lagraize was served on April 13, 2002, and that he acknowledged service but would not sign. Hazel Sanchez, an attorney for Merial, filed a “Certification” into the record on August 16, 2002, indicating that Albert La-graize was personally served at 3636 Severn Avenue on April 13, 2002.

On August 20, 2002, the trial court granted a default judgment in favor of Merial and against Lagraize, awarding Merial the principal sum of $5,097.22, plus accrued finance charges of $1,166.34 through October 13, 2000, plus finance charges of 12% per year from October 14, 2000 until paid, plus all costs and reasonable attorney fees.

On April 26, 2006, Lagraize filed a “Petition for Annulment of Judgment Pursuant to C.C.P. Article 2002(2),” contending that the default judgment rendered against him was an absolute nullity because he was never served with the Petition on Open Account. According to Lagraize, he did not become aware of the lawsuit against him until he sold a piece of immovable property in February 2006 and was informed that there was a lien on the property due to the default judgment. On June 9, 2006, a notarized affidavit of Dwayne Alexander, entitled “First Amended |4Return of Service,” was filed into the record, indicating that Alexander personally served Lagraize with the Petition on Open Account on April 13, 2002 at 3620 Edenborn Avenue in Metairie.

Trial of the Petition for Annulment came for hearing on September 26, 2006. At trial, Albert Lagraize testified that he was a veterinarian and he retired in 1999. He stated that he has lived at 3620 Edenborn Avenue since 1984, and he lived at 3636 Severn Avenue prior to 1984. He asserted that he was never served with the Petition on Open Account and had never seen or spoken with the special deputy, Dwayne Alexander. He testified that on April 13, 2002, which was the day that he had allegedly been served at his home on Eden-born, he was in Leeville, Louisiana, apprenticing as a camera man for Robert Gourques (“Gourques”), who is the host of a fishing television show entitled, “Between the Banks.”

Robert Gourques testified that he has produced “Between the Banks” for 23 years. He stated that Lagraize began apprenticing with him in 2002 and he began working for him as a camera man in 2004. At Lagraize’s request, Gourques looked back at his 2002 calendar and realized that Lagraize was with him in Leeville, Louisiana, on April 13, 2002. Gourques contends that he remembers Lagraize was with him that weekend because it was a weekend before he was to film with a guest and he had to do some scouting on the weekend of April 13, 2002. He also remembers arriving in Leeville late Friday night after attending a Zephyrs game.

Dwayne Alexander testified that he served Albert Lagraize on April 13, 2002 between 5:30 and 6:00 p.m. at 3620 Eden-born. He stated that he believes Ms. Sanchez gave him the Edenborn address after he notified her that the Severn address was incorrect. He asserted that he knocked on the door at 3620 Edenborn and no one answered, but as he walked away, Lagraize appeared and asked if he | scould help him. Lagraize identified himself as “Albert Lagraize.” Alexander contends that he provided Lagraize with the papers and asked him to sign the return of the citation. Lagraize stated that he would not sign any papers, so Alexander left. He stated that the notation, “Mr. Albert Lagraize acknowledged service but refused to sign,” was written on the service return by someone in his office at his direction, but he did not ask anyone to write the address where he was served on the service return. In June 2006, Ms. Sanchez provided him with an Amended Return of Service indicating that he personally served Lagraize at 3620 Edenborn on April 13, 2002, and it was signed by him and notarized. He testified that he took pictures of the house at 3620 Edenborn after the Petition for Annulment was filed, but he is certain from his own recollection that he served Lagraize at the Edenborn address.

At the conclusion of the hearing, the trial court took the matter under advisement. On September 27, 2006, the trial court rendered a judgment dismissing the Petition to Annul Judgment and finding that the evidence presented by Lagraize to support his allegation that he did not receive service of the original petition was “not convincing.” Albert Lagraize now appeals.

DISCUSSION

On appeal, Lagraize contends that the trial court erred in dismissing his Petition for Annulment of Judgment on the grounds that citation and service were insufficient. He asserts there is no evidence that he was served with the Petition on Open Account. The trial court appointed Dwayne Alexander as a special deputy to effectuate service on Lagraize, in accordance with LSA-C.C.P. art. 1293(A). Lagraize contends that the documents purporting to show that he was served by Alexander do not meet the requirements of LSA-C.C.P. arts. 1292 and 1293, and that Alexander did not complete the service return which contains numerous lfiblanks, including those for the address of service and type of service. Mer-ial responds that the return of the court appointed special deputy sufficiently evidences that service was made upon La-graize and that, although the return from April 13, 2002 may be incomplete, the error is only a clerical one which may not be used to invalidate a default judgment.

Citation and service thereof are essential in all civil actions except summary and executory proceedings, C.C. art. 102 divorce actions, and proceedings under the Children’s Code. LSA-C.C.P. art. 1201(A). In the absence of evidence of proper citation and service of process informing the defendant of the claim against him, in strict compliance with the law, all subsequent proceedings are absolutely null. Beevers v. Burmaster, 00-1951 (La.App. 5 Cir. 4/11/01), 787 So.2d 381, 384; Wills v. National Automotive Ins., 41,034 (La.App. 2 Cir. 4/12/06), 926 So.2d 771, 774; Rivers v. Groth Corp., 95-2509 (La.App. 1 Cir. 9/27/96), 680 So.2d 762, 763.

LSA-C.C.P. art. 2002 provides in pertinent part:

A. A final judgment shall be annulled if it is rendered:
2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

An allegation that a defendant was never served, if true, is a basis for annulling a judgment against him. Butler v. Harrington, 99-2549 (La.App. 4 Cir. 4/12/00), 761 So.2d 50, 52. On a petition to annul a default judgment, the burden of proof is on the party challenging the validity of service to show by a preponderance of the evidence that service was not properly made. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90, 97; State ex rel. Dept. of Social Services v. Langlois, 03-849 (La.3/3/04), 874 So.2d 216, 217.

|7LSA-C.C.P. art. 1292 requires that the sheriff endorse a copy of the citation or other process with “the date, place, and method of service and sufficient other data” to show that service was made in compliance with law. LSA-C.C.P. art. 1293 provides that service of process by a private person must be made in the same manner as is required of sheriffs. When the clerk of court receives the sheriffs return, it is considered prima facie correct, but service by a private process server must be proven like any other fact in the case. LSA-C.C.P. art. 1293. The party challenging service of process in a nullity action is not required to show for certain that service was not made. Hall v. Folger Coffee Co., 874 So.2d at 105. Rather, since a preponderance of the evidence standard applies, the party attacking service only needs to prove that, more likely than not, service was not properly made. Id.

After reviewing the record before us, along with the applicable law, we find that the evidence was insufficient to establish that Lagraize was properly served pri- or to the rendition of the default judgment against him. A private process server is required to effectuate service of process in the same manner as is required of sheriffs. However, in the present case, a preponderance of the evidence reveals that this was not done and that service was defective.

On May 9, 2002, a service return was filed into the record, indicating that, “Mr. Albert Lagraize acknowledged service but refused to sign.” However, the return does not provide the place or method of service, as required of sheriffs and thus private process servers, pursuant to LSA-C.C.P. arts. 1292 and 1293. Citation and service must strictly comply with the law in order to support a valid judgment. W & R Farming Partnership v. Old South Properties, Inc., 04-737 (La.App. 3 Cir. 11/10/04), 887 So.2d 646, 648.

Although Alexander testified that he personally served Lagraize at 3620 Eden-born on April 13, 2002, the service return in the record does not support that |she was served at the Edenborn address. Further, the “Certification” filed by Merial’s attorney, Ms. Sanchez, indicates that Mr. Alexander served Lagraize at the Severn address, not 3620 Edenborn. As stated above, service by a private person is not considered prima facie correct and it must be proven like any other fact in the case. The record before us reveals that the evidence is clearly insufficient to support Merial’s assertion that service was properly made. Thus, the evidence was inadequate to support the default judgment.

Accordingly, we reverse the trial court’s judgment dismissing Lagraize’s Petition to Annul Judgment, and we hereby annul the August 20, 2002 default judgment on the grounds that Lagraize was not properly served with process as required by law.

In his second argument on appeal, La-graize asserts that the trial court erred in dismissing his Petition for Annulment of Judgment, because he did not receive notice of signing of judgment pursuant to LSA-C.C.P. art. 1913. However, considering our decision to annul the default judgment on the grounds that service was not properly effectuated, this argument is moot.

DECREE

For the reasons set forth above, we reverse the trial court’s judgment dismissing Lagraize’s Petition for Annulment of Judgment, and we annul the default judgment rendered against Lagraize on August 20, 2002.

REVERSED.

      . Merial acknowledges that this was not the correct address where service was allegedly made, and it asserts that the error was a clerical one. Merial contends that service was actually made at 3620 Edenborn Avenue.


text:
    3627 AIRLINE DRIVE, L.L.C. v. PARISH OF JEFFERSON c/w The Parish of Jefferson v. 3627 Airline Drive, L.L.C. d/b/a Zack’s Unfinished Furniture, and Nicholas V. Chisesi.
    Nos. 07-CA-339, 07-CA-340.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.
    Timothy S. Madden, John A. Cangelosi, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    Thomas G. Wilkinson, Gretna, Louisiana, and Matthew M. Friedman, Jefferson, Louisiana, for Defendant/Appellant.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

| ¡.The Parish of Jefferson has appealed the trial court’s grant of summary judgment in favor of the plaintiff in this action for declaratory judgment. For reasons that follow, we affirm the judgment of the trial court.

FACTS:

Plaintiff, 2637 Airline drive, L.L.C., purchased the property at issue in this proceeding from Beach Brothers Furniture Store, Inc. (Beach Brothers) on July 10, 2003. Beach Brothers had operated a furniture store at this location for many years and the principals of the plaintiff company intended to do the same. This tract of land consists of lots A, B, 62, 63, 64, 65, 66, which front on Airline Drive, and lots Y, 17,18,19, 20, 21, 22, 23, and 24, which are adjacent to the rear of the Airline Drive lots and front on Johnson Street. The lots fronting on Airline Drive are zoned commercial, (C-2), while the lots fronting on Johnson Street are zoned residential (R-2) with legal non-conforming use rights. In March 2004, Jefferson | ¡¡Parish (the Parish) determined that lots 21 and 22, and portions of lots Y, 17, and 18 had lost their legal non-conforming status due to non-use and lots 19, 20, 23, and 24 do not have legal non-conforming status. The Parish gave plaintiffs notice of its findings and on December 20, 2004, the Parish filed a petition in First Parish Court for the Parish of Jefferson claiming plaintiffs were in violation of certain ordinances by allowing non-permitted use of their property. On December 30, 2004, the plaintiffs filed a Petition for Declaratory Judgment against the Parish claiming that there was no cessation of use of the property for one year and that the lots had not lost their nonconforming status due to nonuse. The plaintiffs sought:

1.A declaration that lots Y, 17, and 18 continue to enjoy legal non-conforming use and that the property and structures on the property be used for commercial purposes.
2. A declaration that lots 19, 20, 21, and 22 continue to enjoy a limited non-conforming use.
3. A declaration that lots 19, 20, 21, and 22 may be used for parking, and as a commercial driveway, including loading and unloading of merchandise.

Thereafter, the action filed by the Parish in First Parish Court was removed to the 24th Judicial District Court for the Parish of Jefferson and the suits were consolidated.

On February 8, 2007, the plaintiffs filed a Motion for Summary Judgment and following a hearing, judgment was rendered in their favor by the trial court. The judgment stated that lots Y, 17, 18, 21, and 22 continue to enjoy a legal non-conforming status to be used as C-2 property including, but not limited to, the loading, unloading and storage of merchandise, and the conducting of business activities. The judgment further stated that lots 19 and 20 continue to enjoy a legal non-conforming status and can be used for parking and the loading, unloading and storage of merchandise. This timely appeal followed.

\JLAW AND DISCUSSION:

The Parish contends the trial court erred in granting summary judgment when there are issues as to whether the non-conforming use status was lost prior to the sale of the property to plaintiff. The plaintiff responds that the trial court correctly granted summary judgment because the Parish failed to controvert the evidence presented by the plaintiff.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits 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). The mov-ant bears the burden of proof. La.C.C.P. art. 966(C)(2). An adverse party to a supported Motion for Summary Judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967. Once the Motion for Summary Judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Babin v. Winn-Dixie Louisiana, Inc., 2000-0078 (La.6/30/00), 764 So.2d 37.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties Ltd., 93 1480 (La.4/11/94); 634 So.2d 1180.

In its Motion for Summary Judgment, plaintiff acknowledged that Beach Brothers closed their furniture storefront in August 2001, however, plaintiff contends Beach Brothers continued to conduct its furniture business on the premises until it was sold to plaintiff. In support of its motion, plaintiff submitted |Ran affidavit by Michael Beach, who served as the president of Beach Brothers from 1992 until 2003. Mr. Beach attests the following: Beach Brothers commenced operating a furniture store at 3627 Airline Highway (which was later renamed Airline Drive) in May 1946. At that time, the premises consisted of lots B, 62, 63, 64. 65, and part of lot 66, all of which front Airline Highway. In the 1960s, Beach Brothers, acquired lots Y, 17, and 18 that were directly behind the building and front on Johnson Street. In 1966, Beach Brothers expanded the main building onto these lots after approval by the Parish Council. Beach Brothers later acquired lots 21 and 22 and then lots 19 and 20, all of which front on Johnson Street. In April 2001, Beach Brothers opened a store in LaPlace and on June 30, 2001, closed the furniture showroom at 3627 Airline Drive. Following the closure of the showroom, Beach Brothers used the property at 3627 Airline Drive as a warehouse to store furniture, continued to receive deliveries of furniture at this address, continued to deliver furniture to customers from this address, and continued to assemble and repair furniture at this address. Beach Brothers continued to store financial records at this address. Beach Brothers continued to maintain utilities at this address and maintained an occupational license to conduct commercial activities at this address until December 31, 2003. Beach Brothers continued to make payments to Jefferson Parish for items delivered in or sold in the Parish at least until September 2003. Attached to the affidavit were copies of utility bills and their corresponding payments by check and sales tax invoices and their corresponding payments by check.

The Parish responded by memorandum only arguing that Beach Brothers closed in August 2001 and plaintiffs store did not open until July 2003, thus there was a 23 month period in which no business occurred. The Parish argues that while the building may have been used for minimal storage, there was no parking | (¡on lots 21 and 22 and no use of lots 19 and 20. The Parish argued that there is an issue of whether Beach Brothers lost the non-conforming status on lots Y, 17, 18, 19, 20, 21, and 22 prior to the sale of the property. The Parish submitted no evidence to support this position with its memorandum.

The plaintiff responded that it did not realize the Parish was going to argue that lots Y, 17, 18, 19, 20, 21, and 22 had lost their non-eonforming use with respect to parking, loading and unloading, and use as a driveway for ingress and egress to the property. Since plaintiff was now aware of this argument, plaintiff submitted a supplemental affidavit by Michael Beach attesting the following: After the closure of the Beach Brothers’ showroom, lots 21 and 22 continued to be used for parking and the loading and unloading of furniture. Customers and employees continued to use the driveway on lots 21 and 22 to access the parking areas and make deliveries. The portions of lots Y, 17, and 18 not occupied by the main building continued to be used for loading and unloading furniture, parking, and assembly, repair, and storage of furniture in the structure located on these lots behind the main building.

At the hearing on plaintiffs motion, the Parish argued that because the volume of business decreased, the property lost its non-conforming use status. The Parish then went on to refer to a January 30, 2000 decision by the Administration Adjudication Bureau for Public Health, Housing, Fire Code and Environmental Violations of the Department of Inspection and Code Enforcement for the Parish of Jefferson involving this same property. Following an administrative hearing, the hearing officer held that lots 21 and 22 had been used consistently since their acquisition for the parking of vehicles associated with the furniture store and that use may continue as a “limited non-conforming use for parking only, unless it ceases for one year at some time in the future.” The order further stated that the 17portion of the commercial driveway on lot 21 enjoys a legal nonconforming status since it has existed on the property in excess of five years and the legal non-conforming status as a commercial driveway confers the right of Beach Brothers to use the driveway for loading and unloading of furniture. The order further held that Beach Brothers were limited in their use of lots 19, 20, 23, and 24 to those permissive uses in a residential neighborhood. At the summary judgment hearing, the plaintiffs attorney stated that he agreed that lot 20 should only be allowed to be used for parking, but that there is a canopy on lot 19 and this lot should be allowed to receive merchandise and for parking. The plaintiffs attorney explained that his clients were not seeking anything other than what the 2000 administrative adjudication allowed.

The court then asked the attorney for the Parish if he had anything to traverse the affidavits presented by the plaintiff. The attorney for the Parish responded that he had people from the neighborhood civic association who live in the area of the premises. Carol McGovern, who lives on Johnson Street, was called as a representative of the civic association. The Parish introduced a copy of a newspaper advertisement stating that Beach Brothers located at 3627 Airline Highway was going out of business and all inventory had to be removed immediately. Ms. McGovern testified that she had no personal knowledge of “the situation going on at the identified property.” She went on to testify that she had not seen any cars parked on lots Y, 17, 18, 19, 20, 21, or 22, nor had she seen any furniture stored under the canopy on lot 19. On cross-examination, Ms. McGovern testified that she is not in a position to refute the assertions contained in Michael Beach’s affidavit. During her testimony, the plaintiffs attorney pointed out to the court that in the pretrial order, filed into the record on January 19, 2007 and entered into evidence as support of plaintiffs position during the summary | ¿judgment hearing, the Parish stipulated that following the closure of the Beach Brothers’ showroom, Beach Brothers continued to maintain an occupational license for the site, continued to warehouse a small amount of inventory at the site and continued to store financial records at the site. He further pointed out that in the opposition memorandum, the Parish stated that taxes, utility bills, and sales and deliveries occurred after the closure of the showroom. The attorney for the Parish then explained that the issue was whether lots 19, 20, 21, and 22 were not used to run the business for twelve consecutive months after the closure of the showroom. At that point, the trial judge pointed out that in the pre-trial order, the Parish stipulated that following the closure of the showroom, “vehicles continue to use the driveway on lots 21 and 22 as a ‘cut-through’ from Johnson Street to Airline Drive.”

At the conclusion of the hearing, the trial judge stated that he was granting the motion because the Parish presented no credible evidence to contradict any of the affidavits submitted by plaintiff.

Our de novo review of the motions and memoranda in support of and in opposition to summary judgment, as well as the supporting documents and transcript, indicate the trial court correctly rendered summary judgment in favor of the plaintiff. The plaintiff moved for summary judgment stating that Beach Brothers continued to use the premises to conduct business after the closure of the showroom. In support of this argument, plaintiff submitted affidavits from Michael Beach stating that after the closure of the showroom, Beach Brothers used the property at 3627 Airline Drive as a warehouse to store furniture, to receive deliveries of furniture, to deliver furniture to customers, to assemble and repair furniture, to store financial records, to maintain utilities, and maintained an occupational license to conduct commercial activities at this address until | ¡December 31, 2003. The supplemental affidavit stated that lots 21 and 22 continued to be used for parking and delivery purposes after the closure of the showroom. The Parish submitted no evidence to controvert the statements set forth in these sworn affidavits. As stated in La.C.C.P. art. 967, an adverse party to a supported Motion for Summary Judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. After the Parish failed to come forth with opposing affidavits or other evidence, the trial judge allowed the Parish to call witnesses at the motion hearing to controvert plaintiffs affidavits. Even after the witness called by the Parish failed to do so, the trial judge gave the Parish another opportunity to call a witness to controvert the affidavit and the Parish failed to do so. Since there are no material issues in dispute, the plaintiff is entitled to summary judgment.

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

AFFIRMED.

      . Lots 23 and 24 are no longer owned by plaintiff.


author: GREG G. GUIDRY, Judge.

text:
    Gerald and Betty ALWELL v. MEADOWCREST HOSPITAL, INC.
    No. 07-CA-376.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 30, 2007.

      Jerald L. Album, Lauren L. Tafaro, Attorneys at Law, Metairie, Louisiana, for Defendant/Appellant.

      Bruce A. Cranner, Karen C. Duncan, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, WALTER J.
    ROTHSCHILD, and GREG G. GUIDRY.
   GREG G. GUIDRY, Judge.

RThird-party Defendant, Liberty Surplus Insurance Corporation (“Liberty”), appeals from a summary judgment in favor of Third-party Plaintiff, Meadowcrest Hospital (“Meadowcrest”), holding Liberty to a contractual duty to defend Meadow-crest in a slip and fall ease. We affirm in part and amend in part.

In 2002, Plaintiff, Betty Alwell, was allegedly injured when she slipped and fell at Meadowcrest due to a sticky substance on the floor. The Alwells subsequently filed a negligence suit against Meadow-crest, its janitorial service, Hospital Housekeeping Systems, L.L.C. (“HHS”), and HHS’s general liability insurer, Liberty. Meadowcrest filed third-party actions against HHS and Liberty demanding defense and indemnity.

In the janitorial contract between Mea-dowcrest and HHS (“Housekeeping Agreement”), HHS agreed to defend, indemnify and hold Meadowcrest harmless for HHS’s negligence or willful misconduct, to name it as an insured to the extent |3of HHS’s negligence, and to maintain adequate liability insurance against claims that “might or could arise as a result of the Housekeeping Contract or performing hospital service for the benefit of the host hospital .... ” Paragraphs 8 a., 8 b.

HHS subsequently purchased a policy from Liberty to comply with the Housekeeping Agreement. The policy provides coverage for damages HHS has obligated itself to pay under a contractual assumption of liability, but only when that liability is assumed in an “insured contract.” An insured contract is one that pertains to HHS’s business, and in which HHS agreed to assume the tort liability of another party “to pay for ‘bodily injur/... to a third party or organization.” HHS has a self insured retention (“SER”) of $150,000. Meadowcrest was not specifically named as an insured.

Based on the contracts, Meadowcrest tendered its defense to Liberty. Liberty refused to comply. Meadowcrest then filed a Motion for Summary Judgment claiming that the Housekeeping Agreement and the Liberty policy require Liberty to provide a defense to the lawsuit, and indemnification in the event of a judgment against Meadowcrest. Meadowcrest filed a petition for penalties as a result of Liberty’s refusal to provide a defense. The trial judge granted the motion in regard to the duty to defend, and further held that Mea-dowcrest is insured against a judgment in excess of $150,000, up to the policy limits. The judgment was silent regarding Mea-dowcrest’s claim for penalties.

On appeal, Liberty asserts that the trial judge erred in finding it has a duty to defend Meadowcrest, because the duty to defend and the question of whether Mea-dowcrest is an insured is only triggered by finding HHS at fault. Thus, the ^summary judgment on these issues is premature. Liberty also asserts that the trial judge erred in failing to restrict its duty to the extent of HHS’s liability. It further claims that it does not owe a defense or coverage to its insured or Mea-dowcrest for the self-insured retention amount, because it is an excess carrier.

The standard for review of a ruling on a summary judgment is de novo. Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 11 (La.4/12/05), 907 So.2d 37, 48. Summary judgment should be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B); Id. A genuine issue exists where reasonable persons, after considering the evidence, could disagree. Suire, 04-1459 at p. 11, 907 So.2d at 48. In determining whether an issue is genuine, a court should not consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Id. A fact is “material” if it is one that would matter at trial on the merits. Suire, 04-1459 at p. 11, 907 So.2d at 48. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Id.

The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Elliott v. Continental Cas. Co., 06-1505, p. 5 (La.2/22/07), 949 So.2d 1247, 1250. Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Id. If, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer |Rmust defend the insured regardless of the outcome of the suit. Elliott, 06-1505 at p. 5, 949 So.2d at 1250. Thus, unlike an indemnity agreement, an insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Id.

We find that the trial judge did not err in rejecting the prematurity argument regarding the duty to defend. The question then, is whether the policy provides the possibility that Meadowcrest is covered, and that it may be held liable. We conclude it does.

The Housekeeping Agreement requires HHS to name Meadowcrest as an insured on its policy, to the extent of the negligence of HHS. The policy excludes contractual liability, except for liability for damages assumed in a contract that is an “insured contract.” SECTION VII, 10 f. defines an “insured contract”, inter alia, as:

The part of any other contract or agreement pertaining to your business ..., under which you assume the tort liability of another party to pay for “bodily injury”... to a third person or organization. Tort liability means liability that would be imposed by law in the absence of any contract or agreement.

UThe first part of the definition is met. However, HHS did not name Meadowcrest on its policy with Liberty as an additional insured. Nevertheless, the insurer stands in the shoes of the insured to the extent applicable to this situation.

The parties disagree concerning the meaning of the paragraphs’ remaining language, as well as the meaning of the other provisions in light of the intent of the parties. Liberty urges that it is clear that the policy was obtained to cover HHS’s contractual duties to Meadowcrest only, and do not extend to Meadowcrest’s negligence. The Housekeeping Agreement specifically states that HHS’s duty to defend and indemnify is only to the extent of HHS’s fault. Thus, the policy only applies insofar as HHS is found to be at fault. Again, Liberty argues that, because that has yet to be determined, the issues should be deferred until fault is determined. Furthermore, Liberty contends that the trial judge failed to limit his ruling to HHS’s fault.

Meadowcrest, on the other hand, argues that the duty to defend exists even if it is found to be solely negligent since it is an insured under the “insured contract” provision which does not restrict coverage to HHS’ liability.

After our review of the two contracts, we find that the Liberty policy does not unambiguously exclude coverage. Thus, the trial judge did not err in finding Liberty has a duty to defend Meadowcrest. However, because the Housekeeping Agreement limits HHS’s duty to defend and indemnify Meadowcrest to “the extent of Contractor’s negligence”, the insurer, who stands in HHS’s shoes, is liable only to the extent of HHS’s negligence. The judgment will be modified to reflect the restriction.

Liberty also argues that it does not owe a duty to defend or indemnify Mea-dowcrest at this point in the proceedings, because the policy provides only |7excess coverage, which is triggered after other valid and collectable insurance has been satisfied. However, a self-insured retention is not considered an insurance policy. Hearty v. Harris, 574 So.2d 1234, 1237 (La.1991). Self-insurance is “[a] plan under which a business sets aside money to cover any loss.” Black’s Law Dictionary 807 (7th ed.1999). It is in the nature of a deductible, in which HHS retained its risk up to $150,000. Although HHS would be responsible for up to $150,000 in damages, Liberty still has the duty to defend since the SIR is not insurance within the meaning of the policy.

Meadowcrest asserts that HHS or Liberty should be responsible for the SIR, regardless of who ultimately is found at fault. We disagree. The language of the Housekeeping Agreement and the insur-anee policy together show that the purpose of the policy is to provide insurance only to the extent of HHS’s negligence.

Liberty also asserts that the trial judge erred in finding that Liberty is liable for damages over $150,000 up to the policy limits without also limiting the liability to the percentage of HHS’s fault. We agree. Based on the reasons for judgment, the trial judge apparently neglected to include the restriction. Thus, we will amend the judgment to reflect the limitation.

Meadowcrest raised an issue in brief, asserting that the trial judge erred in fading to award penalties for Liberty’s arbitrary and capricious refusal to provide a defense. However, Meadowcrest has failed to properly confect an appeal of the issue. In order for the appellate court to modify a judgment, the party asking for the modification must file either a motion for appeal, pursuant to La. C.C.P. art. 2121, or a written Answer to the Appeal, in accordance with La. C.C.P. art. 2138. Thus, the Court is precluded from addressing the argument.

| ^Accordingly, we hereby affirm that part of the judgment holding that Liberty Surplus Insurance Corporation owes a defense to Meadowcrest Hospital, but amend it to restrict Liberty’s duties to Meadow-crest Hospital to the extent of HHS’s fault. We further amend the judgment to state that Meadowcrest is entitled to coverage for any amount of a judgment in excess of $150,000 up to the policy limits, but only to the extent of HHS’s fault. The judgment is otherwise affirmed.

AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.

      . See: SECTION I-COVERAGES, COVERAGE A., 2. Exclusions, and the definitions in SECTION VII, 10 f.

      . An indemnity agreement is a "specialized form of contract which is distinguishable from a liability insurance policy.” Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987); Suire, 04-1459 atp. 17, 907 So.2d at 51. An indemnitor is not liable under an indemnity agreement until the indemnitee "actually makes payment or sustains loss.” Meloy, 504 So.2d at 839; Suire, 04-1459 at p. 17, 907 So.2d at 51. Thus, a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid. Meloy, 504 So.2d at 839; Suire, 04-1459 at p. 17, 907 So.2d at 51

      . Housekeeping Agreement — Paragraph 8 a. states in part:
      Contractor shall maintain adequate ... general public liability ... insurance against any claim or claims that might or could arise as a result of Contractor performing Hotel Service for the benefit of a Host Hospital under this Agreement... .The insurance policies shall name the Host Hospital as an additional insured (to the extent of Contractor’s negligence).... Contractor's insurance shall be primary and non contributory.

      .Liberty policy — SECTION I — COVERAGES, COVERAGE A., 2 Exclusions:
      b. Contractual Liability.
      'Bodily injury’ or 'property damage’ for which the insured is obligated to pay as damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liabilities for damages: (1) Assumed in a contract or agreement that is an "insured contract," provided the ‘bodily damage’... occurs subsequent to the execution of the contract. ...” [Emphasis added.]

      . See: Housekeeping Agreement, 8. a.

      . The policy states that Liberty will pay those sums in excess of the ‘Self-Insured Retention' that the insured becomes legally obligated to pay-


author: McKAY, III, Judge.

text:
    STATE of Louisiana v. Alejandro LOPEZ and Jose Hernandez.
    No. 2007-KA-0701.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2007.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Battle Bell, IV, Assistant District Attorney of Orleans Parish, New Orleans, Louisiana, for Plaintiff/Ap-pellee.
    R. Judson Mitchell, Jr., Supervising Attorney, Paula J. Rodriguez, Student Practitioner, Loyola Law Clinic, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   McKAY, III, Judge.

hOn April 6, 2006, defendants Alejandro Lopez and Jose Hernandez were charged by bill of information with attempted looting in violation of La. R.S. 14:(27)62.5. Defendants entered pleas of not guilty at their arraignment on May 17, 2006. The State, on August 14, 2006, amended the bill of information to charge defendants with looting during a state of emergency. Defendants filed discovery and suppression motions on September 1, 2006. After a preliminary and suppression hearing on November 8, 2007, the trial court found probable cause and denied the defendants’ motions to suppress evidence. After a bench trial on March 2, 2007, the defendants were found guilty of looting. On April 4, 2007, both defendants were sentenced to three years at hard labor with credit for time served. On the same day, the defendants filed a notice of appeal, which was granted by the trial court.

STATEMENT OF FACT

Prior to Hurricane Katrina, Katrena Ndang resided at 2338 Robert E. Lee Boulevard. After the hurricane, Ms. Ndang hired someone to gut the downstairs portion of her house. The upstairs contained all her furniture, clothing and other |2furnishings, including her computer. Ms. Ndang would go to the house every day. At approximately 6:00 p.m. on February 6, 2006, she went to the house and found the front door wide open. She had closed and tied the door shut the day before. She heard people upstairs and closed the door. Ms. Ndang then returned to her car and called 911.

Police officers arrived shortly thereafter and entered the house. The officers found the two defendants inside the house. Ms. Ndang did not know the defendants and did not give them permission to enter the house. When Ms. Ndang entered the house she noticed that her coin purse and a bottle of perfume, which had been upstairs, were downstairs. Upstairs, she found the bedroom in disarray, items had been taken out the closet and thrown around and drawers were taken out the dresser.

New Orleans Police Officer Nathan McGhee responded to the call in reference to a burglary at 2338 Robert E. Lee Boulevard. When Officer McGhee arrived on the scene, he spoke with Ms. Ndang who told him that she heard people upstairs rummaging through her house. Officer McGhee conducted a search of the house and found defendant Lopez underneath the stairwell. Lopez attempted to run from McGhee, but McGhee was able to apprehend him. Hernandez was attempting to get out the back iron door. Hernandez tried to escape but other police officers, who had arrived on the scene, captured him. Officer McGhee continued his search of the house. Ms. Ndang noticed that her coin purse was downstairs. When the officer went upstairs, he noticed that the bedroom had been ransacked. The crime lab was called out to take photographs.

Jose Hernandez and Alejandro Lopez are itinerant construction workers who came to New Orleans after Hurricane Katrina. They testified that they were hired | ¡¡by a man named Arthur or Arturo to do sheetrock and painting work. Arturo would take them to the places where he needed them to work. On February 6, 2006, they started working on a house in the area around 8:30 a.m. and finished around 5:30 p.m. Arturo picked them up from that house and told them that they were going to start working on another house that evening. He dropped them off near the Ms. Ndang’s house and told them that he would be back. According to the defendants, Arturo would drop them off at the house where they were to work before getting the supplies. They would often wait until Arturo returned with the construction supplies. However, Arturo did not return, and the defendants went into the house to wait for Arturo. They were in the house for about one hour and did not go upstairs. They both stated that the door was open when they arrived at the house and did not see Ms. Ndang come to the door.

ERRORS PATENT

A review of the record for errors patent reveals that the defendants were not arraigned after the bill of information was amended on August 14, 2006, to charge defendants with looting during a state of emergency. However, defendants waived their right to object to this error when they proceeded with the trial on the merits. La.C.Cr.P. article 555.

ASSIGNMENT OF ERROR NUMBER 1

In their sole assignment of error, the defendants argue that the State failed to produce sufficient evidence to support convictions for looting.

_JjThis Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (LaApp. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (LaApp. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussall, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mussall; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319, 1324 (La.1992).
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such that every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

| rjd. at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

La. R.S. 14:62.5(A) defines looting as

the intentional entry by a person without authorization into any dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person, or any structure belonging to another and used in whole or in part as a place of business, or any vehicle, watercraft, building, plant, establishment, or other structure, movable or immovable, in which normal security of property is not present by virtue of a hurricane, flood, fire, act of God, or force majeure of any kind, or by virtue of a riot, mob, or other human agency, and the obtaining or exerting control over or damaging or removing property of the owner.

Therefore, in order to convict a defendant of looting, the State must prove that the defendant perpetrated the act of (1) intentionally entering a dwelling owned and used, in whole or part, as a home by another person, (2) lacking normal security because of a hurricane, flood, act of God, or force majeure of any kind, and (3) obtaining, exerting control over, damaging or removing property of the owner.

In State v. Browning, 06-929 (La.App. 5 Cir. 4/11/07), 956 So.2d 65, the defendant was convicted of attempted looting of a business during a state of emergency. On appeal, the defendant argued that the State failed to prove that he attempted to obtain, exert control over, damage or remove property of the owner. The Fifth Circuit found that the State produced sufficient evidence to support the conviction. The court relied upon the testimony of the business owner and the deputies who responded to the looting call and apprehended the defendant. Mr. Savoie, the owner of the business, testified that he stored televisions in their boxes on shelves in the storeroom. He also stated that the only entrance into the damaged building was through a hole in an exterior wall. The deputies who investigated the | ^incident testified that it was not easy to gain entrance due to debris near the hole in the wall. The deputies further stated that they arrived on the scene within five minutes of receiving the looting call, and the defendant was the only person found in the building. The deputies found the defendant hiding in the corner of the storeroom behind some debris. The witnesses also testified that a television was found out of its box on top of the debris and was adjacent to the hole in the wall. The television was the only television not in its box or properly stacked.

In the present case, Ms. Ndang testified that her house had been gutted as result of damage from Hurricane Katrina. She stated that she would tie the front door closed because the door could not be locked in the normal manner due to damage from the hurricane. Ms. Ndang further testified that when she arrived at her home, she heard people upstairs. Officer McGhee stated that he found the defendants hiding in the house. Both defendants attempted to flee when they saw the police officers. Defendants admitted that they were in the house. They both stated that they entered the house after waiting for their boss to return. Additionally, Ms. Ndang and Officer McGhee testified that the upstairs was ransacked and items were displaced. Ms. Ndang testified that two items which had been upstairs, her coin purse and a bottle of perfume, were found downstairs. Such testimony was sufficient to prove that the defendants entered Ms. Ndang’s home which lacked normal security due to Hurricane Katrina and exerted control over and removal of Ms. Ndang’s property. The State met its burden of proving that the defendants were guilty of looting.

^CONCLUSION

Accordingly, we affirm the defendants’ convictions and sentences.

AFFIRMED.

      . La.C.Cr. P. article 555 provides that “[a]ny irregularity in the arraignment, including a failure to read the indictment, is waived if the defendant pleads to the indictment without objecting thereto. A failure to arraign the defendant or the fact that he did not plead, is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty.”