author: LOVE, Judge. TOBIAS, J.,

text:
    Roy RASPANTI v. E. John LITCHFIELD and Berrigan, Litchfield, Schonekas, Mann, Traina and Thompson, L.L.C. Roy Raspanti v. E. John Litchfield and Berrigan, Litchfield, Schonekas, Mann, Trainor and Thompson, L.L.C.
    Nos. 2005-CA-1512, 2006-CA-0331.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.
    Rehearing Denied Jan. 16, 2007.

      Roy Raspanti, Metairie, LA, pro se.
    Douglas M. Schmidt, Doug Schmidt, A.P.L.C., Dane S. Ciolino, New Orleans, LA, for Roy Raspanti.
    G. Frederick Kelly III, G. Frederick Kelly III, LLC, New Orleans, LA, for E. John Litchfield & Berrigan, Litchfield, Schonekas, Mann, Trainor and Thompson.
    (Court composed of Judge JAMES F. McKAY, III, Judge, TERRI F. LOVE, Judge, MAX N. TOBIAS, JR.)
   LOVE, Judge.

liThis appeal arises from a dispute, between attorneys, over attorney’s fees pursuant to referrals. Roy Raspanti successfully represented Mr. and Mrs. Byrd. However, Mr. and Mrs. Byrd’s previous attorneys sued Roy Raspanti seeking attorney’s fees based on quantum ■ meruit, tortious interference with a contract, and unjust enrichmdnt. Roy Raspanti alleged that E. John Litchfield, of Berrigan, Litch-field, Schonekas, Mann, Trainor and Thompson, agreed that the Firm would reimburse his costs and fees for representing himself in the suit. Roy Raspanti did not receive monetary reimbursement or a return of the $292,303.15 advance he paid the Firm for assistance. E. John Litch-field filed an exception of no cause of action, which the trial court granted. The Firm later filed a motion for contempt and sanctions against Roy Raspanti. Roy Ras-panti alleged that the defense attorneys lied on the certificates of services of the pleadings and discovery requests because it stated that all counsel of record had been served. He did not receive copies of discovery requests and other pleadings. The trial court found Roy Raspanti in contempt and dismissed his case with prejudice. The two appeals regarding the no cause of action as to E. John Litchfield and discovery sanctions were consolidated in this appeal.

I gRoy Raspanti appeals asserting the trial court erred by denying his motion for a new trial based on the exception of no cause of action and refusing to allow him to amend his petition. He also avers that he did not violate the trial court’s discovery order willfully, in bad faith, or through his fault and he was not “clearly aware” that noncompliance with the discovery order would result in the dismissal of his case. Lastly, Roy Raspanti asserts that the trial court erred in denying his motion for summary judgment. We find 'that the trial court did not err in granting the exception of no cause of action as to E. John Litchfield. However, we find that the trial court abused its discretion by dismissing his case with prejudice and by declaring Attorney Raspanti’s motion for summary judgment and the. Firm’s exception of no cause of action moot. Thus, we reverse in part and remand these matters to the trial court for proceedings consistent with this opinion.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

E. John Litchfield (“Attorney Litch-field”), of Berrigan, Litchfield, Schonekas, Mann, Trainor and Thompson, L.L.C. (“the Firm”), engaged in the referral of cases to Roy Raspanti (“Attorney Raspan-ti”) with one-third of the fee going to Attorney Litchfield and the Firm and two-thirds to Attorney Raspanti. In 1988, Attorney Litchfield referred Connie and Greg Byrd (“the Byrds”) to Attorney Ras-panti. Attorney Raspanti successfully concluded the Byrds’ litigation and received $596,606.31 in attorney’s fees. Attorney Raspanti also expended $12,000 in costs while representing the Byrds. The Byrds’ previous attorneys, Robert and Thomas Keaty (“the Keatys”), sued Attorney Ras-panti alleging tortious interference with a contract, unjust enrichment, and quantum meruit.

Attorney Raspanti alleges that Attorney Litchfield orally agreed, personally and on behalf of the Firm, to reimburse him for half the cost of defending himself Ragainst the Keatys. He asserts that this agreement included attorney’s fees and that Attorney Litchfield and the Firm would pay half of the resulting judgment or settlement. As a result, Attorney Raspanti tendered $292,303.15, from the Byrds’ fee, to the Firm. Attorney Litchfield permitted Attorney Raspanti’s brother, Joseph Ras-panti, to assist in his defense. The Firm paid half or $8,286 of Joseph’s Raspanti’s attorney’s fees bill. In 1995, Joseph Ras-panti asked for further assistance in defending his brother and Attorney Raspanti asked Attorney Litchfield if he could hire William Cherbonnier (“Attorney Cherbon-nier”). Attorney Litchfield agreed but reserved the right to terminate him and stop paying half of Attorney. Cherbonnier’s bill. Attorney Raspanti alleges that Attorney Litchfield also agreed to hire Thomas Gibbs to assist in his defense.

The Firm did not pay half of the costs, half of Attorney Cherbonnier’s $9,887.12 bill, half of Attorney Raspanti’s attorney’s fees, and half of Attorney Raspanti’s bill. As a result, Attorney Raspanti requested that the Firm return the $292,303.15 that he tendered the Firm as an advance.

In 2002, Attorney Raspanti sued Attorney Litchfield and the Firm seeking the return of the money advanced and costs. Dane Ciolino (“Attorney Ciolino”) and Douglas Schmidt (“Attorney Schmidt”) enrolled as Attorney Raspanti’s co-counsel of record in June 2002 and October 2004, respectively. Attorney Litchfield filed a peremptory exception of no cause of action. No one representing Attorney Ras-panti attended the hearing, and the trial court granted the motion. Attorney Ras-panti asserted he did not receive service of the motion and filed a motion for a new trial, which the trial court denied.

The Firm filed a motion to compel in April 2005 alleging that Attorney Raspanti failed to comply with any of their discovery requests and that no attorney | Representing him attended the Rule 10.1 conference scheduled for April 15, 2005. Attorney Raspanti alleged that he was not served with any of the pleadings or discovery requests, but that some of his co-counsel received the pleadings. Attorney Giolino and Attorney Schmidt stated, in affidavits, that they received certain pleadings, but did not contact Attorney Raspan-ti because all of the pleadings contained a certificate of service clause stating that all attorneys of record were served. Attorney Raspanti then filed a motion for summary judgment against the Firm! The trial court granted the Firm’s motion to compel and ordered Attorney Raspanti to provide answers to the interrogatories and requests for the production of documents within ten days of the hearing or by June 6, 2005.

The Firm then filed a motion for contempt and sanctions for Attorney Raspan-ti’s violation of the trial court’s discovery order. The alleged violations included insufficient answers to discovery and a dispute over the copying of a 15,000 to 18,000 page file. The Firm filed a second motion for sanctions because Attorney Raspanti did not attend the scheduled deposition. The trial court granted the Firm’s motion, dismissed Attorney’s Raspanti’s case against the Firm with prejudice, and awarded the Firm $500 in attorney’s fees and costs. Further, the trial court determined that the Firm’s peremptory exception of no right of action and Attorney Raspanti’s outstanding motion for summary judgment were moot. Attorney Ras-panti filed a motion for a new trial, which the trial court also denied. Attorney Ras-panti timely appealed both of the above judgments and the matters were consolidated.

Attorney Raspanti asserts the trial court erred: 1) by denying his motion for new trial on the peremptory exception of no cause of action as to Attorney Litchfield; 2) by refusing to allow him to amend his petition; 3) because it is [.¡contrary to the law to dismiss Attorney Litchfield as a defendant; and 4) because good grounds existed for granting his motion for new trial. As to the appeal against the Firm, Attorney Raspanti avers the trial court erred because: 1) the record did not show that he was clearly aware that noncompliance with the trial court’s discovery order would result in the dismissal of his case; 2) he did not violate the discovery order willfully, in bad faith, or through his fault; 3) it dismissed his case; and 4) it did not grant his motion for summary judgment.

OUTSTANDING APPELLEE MOTIONS

There is one outstanding appellate motion in -this matter. The Firm filed a motion for contempt and to return the brief of appellant, which was deferred pending-oral argument. We hereby deny the motion and continue with the substance of these appeals.

NO CAUSE OF ACTION

The peremptory exception of no cause of action is a question of law that requires the appellate court to conduct a de novo review. Indus. Co. v. Durbin, 02-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213. “The function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition.” Id. at p. 6, 837 So.2d at 1213. “The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true.” Fink v. Bryant, 01-0987, p. 4 (La.11/28/01), 801 So.2d 346, 349. The exception of no cause of action should be granted if it “appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief.” Indus., 02-0665, p. 7, 837 So.2d at 1213.

|,;The burden of proving an exception of no cause of action remains with the exceptor. S. Tools & Supply, Inc. v. Beerman Precision, Inc., 03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277. “When it can reasonably do so, the court should maintain a petition against a peremptory exception [of no cause of action] so as to afford the litigant an opportunity to present his evidence.” Kuebler v. Martin, 578 So.2d 113, 114 (La.1991). However, considering the well-pleaded facts as true, the court cannot grant a no cause of action exception if it requires the court “to accept as true charges so patently unsound and unfounded as to lead to the belief that they were inserted merely to prevent the dismissal of the petition.” Trumbaturi v. Katz & Bestoff, 154 So. 58, 60-61 (La.App.Orleans 1934), rev’d on other grounds, 180 La. 915, 158 So. 16 (1934).

In regards to the peremptory exception of no cause of action, “[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” La. C.C.P. art. 931. However, the trial court shall order an amendment to the petition “[w]hen the grounds of the objection pleaded ... may be removed by amendment.” La. C.C.P. art. 934. “[Ajmendment is not permitted when it would constitute a vain and useless act.” Butler v. Reeder, 93-764 (La.App. 5 Cir. 3/16/94), 635 So.2d 1206, 1208.

“A new trial shall be granted ... [w]hen the verdict or judgment appears clearly contrary to the law and evidence.” La. C.C.P. art.1972. “A new trial may be granted in any case if there is good ground therefore, except as otherwise provided by law.” La. C.C.P. art.1973.

Attorney Raspanti asserts that the trial court erred by denying his motion for a new trial on the exception of no cause of action, that the trial court should have permitted him to amend his. petition, and that dismissing Attorney Litchfield was |7contrary to the law. Attorney Raspanti avers that Attorney Litchfield “personally” agreed to reimburse him as well as speaking on behalf of the Firm.

Attorney Raspanti’s petition seeks dissolution of the alleged oral agreement and the return of the $292,303.15 advance. He relies on Honeywell, Inc. v. Sierra, 543 So.2d 594, 596 (La.App. 4th Cir.1989), in support of the argument that Attorney Litchfield personally agreed to reimburse his costs and pay his attorney’s fees in relation to his defense against the Keatys. However, Honeywell stated, “the capacity in which a party executes a document is largely a matter of intent which is determined from the circumstances of the transaction.” Id. Attorney Raspanti’s petition stated, in part:

VI.
In April, 1992, plaintiff Roy Raspanti received the $596,606.31 fee. In that same April, 1992, defendant Litchfield personally, and on behalf of defendant Berrigan, Litchfield, agreed to pay one-half of the cost defending the Keaty v. Raspanti matter, including attorneys’ fees and that he and defendant Berrigan Litchfield would be responsible for one-half of any amounts that Roy Raspanti had to pay in the event of a judgment or settlement of said matter. In consideration of those two obligations on the part of the defendant Litchfield and defendant Berrigan Litchfield, and the limited assistance defendant Litchfield rendered to Roy Raspanti in the representation of Greg and Connie Byrd in Byrd v. Bossier, Roy Raspanti agreed to give and gave defendant Litchfield and defendant Berrigan Litchfield $292,303.15 out of the fee he, Roy Ras-panti, realized from his representation of the Byrds. This oral agreement was confected in New Orleans, Louisiana.

The capacity in which Attorney Litchfield allegedly bound himself in the oral agreement is in the context of his legal practice and as a member of a limited liability company. Attorney Raspanti is asserting that Attorney Litchfield personally guaranteed the Firm’s alleged obligation. La. R.S. 12:1320 states, in pertinent part:

|SB. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.

As referenced in Honeywell, Attorney Litchfield’s capacity and intent when entering into the alleged oral contract was in reference to his legal membership in the Firm. Accordingly, Attorney Litchfield did not intend to guarantee the Firm’s alleged obligation personally and is not a proper party for Attorney Raspanti to sue in order to enforce the Firm’s alleged obligation.

Alternatively, Attorney Litchfield’s alleged oral contract could be construed as a personal guarantee of the Firm’s alleged obligation to Attorney Raspanti. “A contract of guaranty is equivalent to a contract of suretyship.” Guar. Bank & Trust Co. v. Jones, 489 So.2d 368, 370 (La.App. 5th Cir.1986). A suretyship “is an accessory contract by which a person binds himself to a creditor to fulfill the obligation of another upon the failure of the latter to do so.” La. C.C. art. 3035. Suretyship agreements and contracts óf guaranty must be explicit and in writing. La. C.C. art. 3038; Guar. Bank, 489 So.2d at 371. Attorney Raspanti stated in his petition, “[t]his oral agreement was confected in New Orleans.” There is no remedy at law for Attorney Raspanti in regards to a guarantee of the Firm’s alleged obligation because the guarantee was not in writing. Attorney Raspanti could not cure the lack of a legal remedy against Attorney Litch-field by amending his petition pursuant to La. C.C.P. art. 934. Therefore, we do not find that the trial court erred by denying Attorney Raspanti’s motion for a new trial, as it was not |flclearly contrary to the law or evidence.

CONTEMPT AND SANCTIONS

La. C.C.P. art. 1471 provides the trial court with varying sanctions used when a party does not comply with a discovery order. La. C.C.P. art. 1471 states:

If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action of proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination. (5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Paragraphs (1), (2), and (3) of this Article, unless the party failing to comply shows that he is unable to produce such person for. examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The trial court has vast discretion on imposing sanctions for failing to comply with |1na discovery order. Fulgham v. An Unknown Police Officer, 480 So.2d 417, 418 (La.App. 4th Cir.1985). Thus, appellate courts do not reverse the trial court’s imposition of sanctions absent an abuse of discretion. Peter v. Touro Infirmary, 05-0317, p. 4 (La.App. 4 Cir. 7/6/05), 913 So.2d 131, 134.

Failing to obey court ordered discovery is a more “serious matter” that requires more “severe sanctions” than failing to comply with discovery. Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 203. The dismissal of a complaint with prejudice “is the ultimate sanction for a plaintiff’ and “should be imposed for failure to comply with a discovery order only as a last resort, and only after the litigant has been afforded the opportunity to be heard.” Id. at p. 5, 913 So.2d at 134. Dismissal has also been described as a “draconian penalty.” Hutchinson v. Westport Ins. Corp., 04-1592, p. 2 (La.11/8/04), 886 So.2d 438, 440. Further, the .sanction of dismissal should be imposed “where a plaintiff is clearly aware that his non compliance will result in dismissal.” Helm v. Mervyn’s Dep’t Store, 97-0547 (La.App. 4 Cir. 8/20/97), 699 So.2d 129,131. Additionally, the record must establish “that the noncompliance was due to the willfulness, bad faith or fault of the party, not merely the attorney.” Peter, 05-0317, p. 5, 913 So.2d at 134. “Because the sanctions of dismissal or default involve property rights, those sanctions are generally reserved for the most culpable conduct.” Horton, 93-2315, 635 So.2d at 203.

The Louisiana Supreme Court adopted four factors from the federal courts “to consider before taking the drastic action of dismissal.” Hutchinson, 04-1592, p. 3, 88'6 So.2d at 440. The factors take into account “whether the violation was willful or resulted from inability to comply,” “whether less drastic sanctions would be effective,” “whether the violations prejudiced the opposing party’s trial ^preparation,” and “whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.” Id.

Attorney Raspanti asserts that the trial court erred in dismissing his suit with prejudice because he was never served with any pleadings or discovery requests. He avers that he was not clearly aware that noncompliance with the trial court’s discovery order would result in the dismissal of his case and that he did not violate the discovery order willfully, in bad faith, or through his fault.

The court ordered discovery deadline in the case sub judice was June 22, 2005. The Firm served discovery requests upon Attorney Schmidt. However, the certificates of service on the requests contained the statement: “I HEREBY CERTIFY that a copy of the above and foregoing has been served upon all counsel of record.... ” The Firm received no response and filed a motion to compel. The trial court granted the Firm’s motion to compel and ordered Attorney Raspanti to provide answers to interrogatories and responses to the request for production of documents within ten days of the hearing, May 27, 2005, or by June 6, 2005. The trial court did not indicate which sanctions could be granted if he did not obey the order.

File Copying

Attorney Raspanti discussed with the Firm, on June 3, 2005, the details of copying the 15,000 to 18,000 page file it requested. The Firm agreed to copy the entire file. Both the Firm and Attorney Raspanti agreed upon DocuMart to copy the file for $.15 per page, on June 6, 2005. The Firm then found an alternative copy center, Choice Copying Service, which offered a rate of $.18 per page. DocuMart changed its quote to $.25 per page after viewing the file. After contacting Docu-Mart, both parties agreed that the file would be copied atJ^DocuMart if it could match Choice Copying Service’s $.18 per page quote. Monique Weilbaeeher, a Do-cuMart employee, stated in her affidavit, that she telephoned Rick Kelly (“Attorney Kelly”), the attorney for the Firm, and told him that DocuMart could match the $.18 per page quote if it received a “written statement by Choice Copiers.” She further stated that he never called her back regarding the price quote, which meant that she could not begin copying the file. As a result, Attorney Raspanti retrieved his file and waited to hear from Attorney Kelly. He stated that upon notice he would return the file to the approved copy center. On June 8, 2005, Attorney Ras-panti sent his answers to interrogatories and request for production of other documents, which the Firm stated were evasive and incomplete. The Firm contends the responses constituted a failure to'answer.

The Firm’s Request to Depose Attorney Raspanti

Attorney Kelly sent a letter, on June 8, 2005, expounding its intent to depose Attorney Raspanti. The Firm sought to depose him at noon on either June 15 or June 21, which was a week or less before the discovery cut-off period and gave him less than a twenty-four hour period to respond. Neither of Attorney Raspanti’s co-counsels of record were available for those dates due to other pending legal matters. Attorney Raspanti offered a date for his deposition after the discovery deadline and Attorney Kelly allegedly agreed predicated upon the condition that Attorney Raspanti could not conduct any discovery after the deadline. Attorney Kelly did not provide further correspondence regarding the deposition and the Firm did not want to continue the trial. The Firm scheduled Attorney Raspanti’s deposition for June 21, 2005, the day before the discovery deadline even though the Firm knew that, neither of his co-counsel could attend due to other prior legal commitments. Attorney Raspanti asserts that he was not served with a subpoena 113and he did not appear.

Affidavit of Attorney Schmidt

Attorney Schmidt stated in his affidavit that he personally told Attorney Kelly, around April 15, 2005, to serve all pleadings on Attorney Raspanti and that Attorney Kelly agreed. He stated that Attorney Kelly understood that Attorney Raspanti was handling all motions and court appearances prior to trial. However, Attorney Schmidt stated that Attorney Kelly served him with nine pleadings and requests for discovery that included a certificate of service stating that all counsel of record had been served. Considering this statement and the agreement he had with Attorney Kelly regarding serving Attorney Raspanti, Attorney Schmidt assumed Attorney Raspanti received the same documents. As a result, he did not forward copies of any of the pleadings to Attorney Raspanti.

Affidavit of Attorney Ciolino

Attorney Ciolino stated in his affidavit that Attorney Kelly served him with three pleadings, which included the certificate of service certifying that all counsel of record were served. He also assumed, due to the certificate’s wording, that Attorney Ras-panti received the same pleadings and did not forward copies. Attorney Ciolino also stated that he was not available to appear at any depositions the week of June 20, 2005. Again, he reiterated that Attorney Raspanti was to handle all motions and court appearances prior to trial.

Affidavit of Attorney Raspanti

Attorney Raspanti stated in his affidavit that Attorney Kelly did not serve him with any pleadings. Additionally, around April 15, 2005, he told Attorney Kelly not to serve any pleadings on Attorney Schmidt. Attorney Kelly allegedly agreed to serve all future pleadings, etc., on Attorney Ras-panti or Attorney Ciolino. 114Attorney Raspanti reiterated this request in his letter, dated April 22, 2005, and in his memorandum in support of his motion for a new trial on the exception of no cause of action, dated April 25, 2005. Attorney Kelly did serve the motion to continue plaintiffs motion for summary judgment one day prior to the scheduled hearing.

Further, Attorney Raspanti stated he later learned that Attorney Kelly continued to serve Attorney Schmidt. He said that Attorney Schmidt told him that he did not forward copies of the pleadings due to the wording of the certificates of service. Attorney Raspanti learned on July 22, 2005, that Attorney Ciolino had been served with several pleadings. He asked for Attorney Ciolino’s file. Attorney Cioli-no told Attorney Raspanti that he did not forward the pleadings due to the certificates of service. Attorney Raspanti did not learn of any discovery requests from the Firm until Friday, May 27, 2005, in open court. Attorney Kelly allegedly stated in open court that he did not think it was proper to serve an attorney of record who was also the plaintiff although he had agreed to do so.

Trial Court’s Assessment of Contempt & Sanctions

Considering the four factors followed by Louisiana jurisprudence, we find that the factors weigh against dismissing Attorney Raspanti’s case. A review of the record fails to show that Attorney Raspanti’s alleged failure to comply was willful. Also, less drastic sanctions would have been more effective because the assessment of costs would require both parties to come to another agreement as to how each party would be served and what would be included in the certificate of service. The record also documents that any alleged misconduct of Attorney Raspanti occurred because of the misunderstandings between himself and Attorney Kelly. There is no evidence in the record that the alleged failure prejudiced the | ^Firm’s trial preparation because the Firm admits, in its brief, that it did not begin discovery because it was waiting for the abandonment period of three years to run in this case. In fact, the Firm’s brief used the language “[o]nce it became apparent that this case would be pursued ...” to characterize the discovery in this case.

First, the trial court’s order compelling discovery did not contain any specific language regarding that it was considering dismissing Attorney Raspanti’s case with prejudice. This Court upheld a dismissal in which the trial court specifically stated that noncompliance would result in a dismissal. Peter, 05-0317, p. 5, 913 So.2d at 134.

Second, the record reveals that the alleged failure to copy the file was due to miscommunication and error on behalf of both parties. Attorney Raspanti attempted to comply with the trial court’s order. According to the record, he and DocuMart were waiting to hear from Attorney Kelly to begin the copying process.

Third, La. C.C.P. art. 1438 states that “reasonable notice in writing” must be given to the deponent and every other party to the action. In the case sub judice, Attorney Raspanti alleges that he was not subpoenaed for the deposition. Attorney Kelly also knew that Attorney Raspanti would not be available for a deposition that day because neither of his co-counsel of record could attend. Attorney Raspanti also offered to schedule his deposition after the deadline with the stipulation that he would not pursue any discovery of his own after the deadline.

After a thorough review of the record, we find it devoid of evidence that Attorney Raspanti was clearly aware that failure to comply with the order would result in the dismissal of his case, which is the most severe penalty. Additionally, l^the record lacks evidence that Attorney Raspanti’s actions were willful, in bad faith, or through his own fault. Although service of one counsel of record usually equates with service of all co-counsel of record, the record documents apparent miscommunication between the Firm, Attorney Raspanti, and his co-counsel of record. Therefore, we find that the trial court abused its discretion in dismissing Attorney Raspan-ti’s case with prejudice and granting the Firm $500 in fees and costs. However, some discovery failure occurred in the present case. Therefore, Attorney Ras-panti must “show that his failure was justified or that special circumstances would make an award of expenses unjust.” Allen v. Smith, 390 So.2d 1300, 1302 (La.1980). Accordingly, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion, including a hearing to determine reasonable expenses caused by the discovery failures.

MOTION FOR SUMMARY JUDGMENT

Appellate courts review summary judgments under the de novo standard of review. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. A summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B).

Attorney Raspanti asserts that the trial court erred by declaring his motion for summary judgment moot after she dismissed his case, with prejudice, against the Firm. The trial court did not consider the substance of the motion. We find that the trial court committed error in dismissing his suit. Therefore, Attorney Raspanti’s motion for summary judgment is no longer moot and must be considered.

Jj2THE FIRM’S EXCEPTION OF NO CAUSE OF ACTION

Pursuant to the above discussion regarding Attorney Raspanti’s motion for summary judgment, the Firm’s exception of no cause of action is also no longer moot and must be considered.

DECREE

Accordingly, we find the trial court did not err in granting Mr. Litchfield’s exception of no cause of action. However, we find that the trial court abused its discretion by dismissing Mr. Raspanti’s case with prejudice and by declaring Attorney Raspanti’s motion for summary judgment and the Firm’s exception of no cause of action moot and we reverse. We remand these matters to the trial court for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED IN PART

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

concurring.

hi respectfully concur.

In my view, when a lawyer is a party to litigation, it is inappropriate and unprofessional, if not unethical, for opposing counsel to serve the party/lawyer with pleadings (such as petitions, motions, discovery, et cetera), unless (a) the party/lawyer in writing specifically requests that opposing counsel serve him (her) and clearly indicates that he (she) has informed his (her) own counsel of the request, or (b) opposing counsel obtains a written order of court directing that service of documents be made upon the party/lawyer directly. If the opposing counsel receives written instructions from the party/lawyer’s counsel to serve the party/lawyer pleadings, et cet-era, opposing counsel should do so, but should also serve a copy of the served document on at least one counsel of record for the party/lawyer.

In the case at bar, I find that opposing counsel’s service of documents upon his opposing counsel was notice to the plaintiff, Mr. Raspanti, and that responsibility fell upon Mr. Raspanti’s counsel to advise him that he (they) had been served with a pleading. Nevertheless, inasmuch as the trial court never indicated that failure to comply with its discovery order would result in a dismissal | aof the case, I agree with the majority for the reasons assigned by them that dismissal of Mr. Raspanti’s case with prejudice was error.

      . La. C.C.P. art. 561 Abandonment in trial and appellate court reads, in pertinent part: A. (1) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three year’s....


source: Caselaw Access Project

author: TERRI F. LOVE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Michael MANUEL, Jr.
    No. 2006-KA-0486.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, 25th Judicial District Parish of Plaquemines, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellee.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME.
   TERRI F. LOVE, Judge.

hThe State filed a bill of information charging the defendant-appellant Michael Manuel, Jr. with one count of violating La. R.S. 40:966(A) relative to distribution of marijuana and one count of violating La. R.S. 14:108 relative to resisting an officer. The defendant entered not guilty pleas at his arraignment. The court heard testimony in connection with the defendant’s motion to suppress. The court issued a written judgment denying the motion. The defendant appeared for trial, at which time he withdrew his prior pleas of not guilty. The defendant entered a plea of guilty of possession of marijuana with the intent to distribute as to count one, and a plea of guilty as charged as to count two. The plea as to the first count included a reservation of the right to appeal from the adverse ruling on the motion to suppress pursuant to State v. Crosby, 338 So.2d 584 (La.1976). As to count one the trial court sentenced the defendant to five years at hard labor. The court suspended the sentence and placed the defendant on two years active probation to be followed by three years of inactive probation. The defendant was ordered to pay $1,550 in total fines and fees, plus court costs. Special probation conditions of community service and completion of a substance abuse program 1 gwere also imposed. As to count two, he was sentenced to pay $100 or serve thirty days in the parish prison. This appeal followed.

FACTS

Deputy Ryan Martinez of the Plaque-mines Parish Sheriffs Office participated in the arrest of the defendant on February 12, 2005. The incident began around midnight when Deputy Martinez and Deputy Barrios were patrolling around the Buras Saloon, and Deputy Barrios noticed several people standing in a dark area of the parking lot. Because there had been a fight there the previous weekend and prior complaints of narcotics activity, they decided to investigate the crowd. The two deputies pulled into the parking lot, at which time several subjects began to walk away. The deputies directed them to return, which they all did. The deputies then systematically obtained identifications from everyone and ran their names for outstanding warrants. Because there were so many subjects being detained, the two deputies called for assistance. Deputy Easton responded, and once he was there, the deputies directed the subjects one at a time to walk over to Deputy Easton’s vehicle to be patted down for the officers’ safety. When the defendant was ordered to place his hands on the vehicle, he stated, “F* * * this,” pulled up his pants, and began to run toward another club in the area. The defendant.was chased by all three deputies and apprehended a short distance away. He gave some resistance, was sprayed with pepper spray, then was handcuffed, placed in a patrol car, and driven back to the Buras Saloon. In a search of the defendant’s person the deputies located three clear plastic bags containing green vegetable matter. The deputies also searched the area through which the defendant had fled because they had seen him take off his jacket and discard items from it. They were unsuccessful in locating anything, however. After his arrest, he was |agiven his rights by Deputy Easton and questioned about why he ran; the defendant said it was because he had marijuana in his pocket and that he was selling it.

ERRORS PATENT

A review of the record for errors patent reveals that there are none.

ASSIGNMENT OF ERROR AS TO MOTION TO SUPPRESS

In his sole assignment of error, the appellant contends that the trial court erred when it denied the motion to suppress evidence. Notably, the trial court specifically found that the deputies lacked reasonable suspicion to conduct an investigatory stop and frisk. However, the court concluded that the defendant had no legal right to resist that illegal detention, and therefore once he fled, he committed the crime of resisting an officer and could be arrested. Thereafter, the discovery of the marijuana in a search incident to arrest was lawful.

The trial court relied upon the Louisiana Supreme Court’s decision in State v. Sims, 2002-2208, pp. 12-13, (La.6/27/03), 851 So.2d 1039,1047, in which the court stated:

Based on the language of the statutes and jurisprudence restricting the right of resistance to- an actual unlawful arrest, the aforementioned policy considerations supporting Terry stop-and-frisks, namely ensuring -officer safety and discouraging violence on the streets, and the original intent of the legislature in passing these pre-Terry statutes, we decline to recognize the right to resist an unlawful stop-and-frisk in Louisiana. The policy considerations underlying the right to resist arrest, including the complete deprivation of liberty and the more extensive duration of an arrest than of a detention, do not raise corresponding concerns in the context of a temporary detention and protective frisk. Unlawful detention must therefore rise to the level of arrest to justify forceful resistance.
Although the police officers did not articulate sufficient facts to justify their frisk of defendant for weapons in conjunction with the investigatory Terry stop, the officers had the right to arrest defendant when he committed a battery upon them in an attempt to resist the Lunlawful frisk. There is no right to resist an unlawful stop-and-frisk under the long-standing rule permitting a citizen to resist an unlawful arrest. Accordingly, the officers lawfully arrested defendant for battery on a police officer, and the district court properly admitted the contraband recovered during the search incident to that arrest.

Notably, in Sims, the defendant, who had been stopped on suspicion that he was a juvenile violating curfew, actually committed a battery on the police officers while resisting the unlawful frisk, and he was then searched incidental to arrest on the battery charge. Similarly, in State v. Cowart, 2003-0880 (La.App. 5 Cir. 11/25/03), 862 So.2d 225. The defendant committed a battery on an officer, and therefore the court citing Sims held that a search incidental to an arrest for battery on the officer was legal even if the officer had lacked a sufficient basis for a frisk of the defendant, who had been stopped for an expired brake tag.

Here, the defendant did not commit a battery on an officer as a part of his initial attempt to avoid the illegal frisk. Instead he ran away; the trial court in its written judgment stated that the defendant upon unlawfully being frisked, “resisted arrest by trying to escape.” He was then arrested for resisting an officer, a violation of La. R.S. 14:108, which provides in pertinent part:

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase “obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(b) Any violence toward or any resistance or opposition to thej^arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer.
(d)Congregation with others on a public street and refusal to move on when ordered by the officer.

Notably, the defendant was arrested in 2005, and the version of La. R.S. 14:108 was amended by Act 132, Acts 2006 to add “lawful detention” to paragraph A and to paragraph B(l)(c). Prior to the 2006 amendment, the statute did not include resisting “detention” as part of the offense. Arguably, by adding lawful detention to the resisting arrest statute, a person now has the right to “resist” an unlawful detention just as he can an illegal arrest; if he can be charged for resisting lawful detention the inference is that he may resist unlawful detention. Thus, we find that the amendment to La. R.S. 14:108 has legislatively overruled the Sims case.

The 2006 amendment to La. R.S. 14:108, to include lawful detention within the definition of resisting arrest, supports a finding that the defendant did not violate La. R.S. 14:108 when he ran from the illegal detention. At the time of the incident, flight from detention, lawful or otherwise, was not included within the definition of resisting an officer. Again, in contrast to Sims and Cowart, the defendant here was not arrested for battery on an officer; rather he was searched incidental to his arrest for violating La. R.S. 14:108. However, because he did not commit that offense, he could not be legally arrested for it; moreover the State did not allege that he was arrested for any other offense.

| (¡The trial court’s reliance on Sims was erroneous because of the factual difference between the cases. The defendant in this case was searched incident to an arrest for resisting arrest, but an arrest for “resisting arrest” was itself unlawful because that is not what he did. Therefore, the appellant’s argument that the search incidental to arrest was invalid has merit.

DECREE

For the reasons stated herein, we reverse the ruling of the trial court. The appellant’s conviction is reversed. The appellant’s sentence for possession of marijuana with the intent to distribute is vacated and the matter is remanded.

CONVICTION REVERSED SENTENCE VACATED AND REMANDED.


author: EDWIN A. LOMBARD, Judge,

text:
    ARMENIA COFFEE CORPORATION v. AMERICAN NATIONAL FIRE INSURANCE COMPANY.
    No. 2006-CA-0409.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.

      Stanley McDermott, DLA Piper, Rud-nick, Gray, Cary US, LLP, New York, NY, and Máchale A. Miller, I. Matthew Williamson, Miller & Williamson, L.L.C., New Orleans, LA, for Plaintiff/Appellee.
    Christopher E. Carey, Montgomery Barnett Brown Read Hammond & Mintz LLP, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge,

| iDefendant/Appellant, Great American Insurance Company of New York (“Great American”), appeals from a judgment awarding PlaintifflAppellee, Armenia Coffee Corporation (“Armenia”), $560,000 on its insurance claim for the value of coffee that Armenia sold and delivered to Ralph C. Richards, Inc. (“Richards”) without receiving payment. Following a bench trial, Judge Nadine Ramsey found that fraudulent conduct on the part of Richards’ president and purchasing agent induced Armenia to sell the coffee, causing Armenia to sustain an insured loss.

For the reasons below, we REVERSE.

I. BACKGROUND

A. The Parties and Insurance Policy

Armenia is a large coffee importer of green coffee headquartered in New York. Richards, one of Armenia’s customers, was a small coffee trading company formerly located in Slidell, Louisiana. At all relevant times, Mark Lemonier (“Mr. Lemonier”), the grandson of the company’s founder, was the president of Richards. Mary Bunch (“Ms. Bunch”) was a purchasing agent for Richards as well |2as the owner and operator of several other companies, including Mary G. Bunch Coffee (“MGB”). John Randall (“Mr. Randall”) was a coffee trader for Armenia who negotiated the subject coffee sales with Richards.

Armenia procured an all-risks marine “open cargo” policy from American National Fire Insurance Company, Great American’s predecessor, bearing the number OMP-7375424 (“the policy”). This policy insured Armenia for physical loss or damage to the coffee while in transit to the United States. Additionally, the policy contained a separate warehouse storage risk provision covering coffee stored in warehouses around the country. The relevant language in the warehouse storage provision states that “the [g]oods and or merchandise covered hereunder are insured against all risks of physical loss or damage from any external cause, irrespective of percentage.” The “Ex-Dock Sales” clause in the policy states, “... this policy continues to cover the goods and/or merchandise in due course of transit until delivered into store, warehouse or factory of consignee and/or buyer.” See Policy OMP-7375424, Clause 43.

B.The Regular Trade Practices Between Armenia and Richards

Armenia stored its imported coffee in various warehouses around the country and sold the coffee to its customers directly from these warehouses. One of Armenia’s regular customers was Richards, a decades-old and well-respected trading company that Armenia had dealt with since 1993. Mr. Randall, Armenia’s agent, knew Ms. Bunch, Richards’ agent, before she began working for Richards, and had conducted sales with her as Richards’ agent since 1992.

According to Mr. Randall, in the normal course of business between 1 ¡Armenia and Richards, the parties would first telephoni-cally enter into a sales contract in which they would identify the cargo and agree on the price, terms, and conditions for payment. Within a day or two, Armenia would issue a delivery order to the warehouse instructing it to deliver the designated coffee to Richards’ order. Later, Armenia would send an invoice to Richards for the coffee sale. The terms of the invoice called for payment within forty-five days of the issuance of the delivery order. However, if the invoice was sent as “provisional,” meaning that it only covered part of the estimated purchase price, Armenia would subsequently send a Price-Fixing Letter establishing the “Final Price” of the goods. That price fixing letter might not be sent until several months after Armenia had issued the delivery order.

C. The Underlying Transactions

Between January and May of 1999, Armenia entered into eight individual purchase and sales agreements with Richards for the subject coffee. Ms. Bunch acted as Richards’ purchasing agent in at least some of these sales agreements, and Mr. Randall traded on behalf of Armenia. Shortly after entering into each of the separate agreements, Armenia issued delivery orders authorizing release of the coffee to Richards’ order corresponding to each transaction and the coffee was delivered to Richards’ order, as intended. As per the terms of the invoice, payment for the coffee relating to the first of the subject sales would have been due in late February or early March, while payment for the last of the eight sales would have been due in the middle of July of 1999.

After purchasing the coffee from Armenia, Richards resold the coffee to |4MGB, one of Ms. Bunch’s companies, at a two-cent mark-up. MGB, in turn, resold the coffee to various other vendors. Within a few months, MGB’s credit balance with Richards had risen sharply. By late spring of 1999, MGB had gone bankrupt. MGB never paid Richards for the coffee, and, consequently, Richards did not have the funds to pay its vendors, including Armenia. In the end, Richards also filed for bankruptcy and, ultimately, failed to pay Armenia for the coffee.

D. Armenia’s Claim for Lost Coffee and the Instant Suit

In November 1999, after it became clear that Richards was not going to pay for the subject coffee, Armenia made claim against American National under the open cargo policy. Armenia initially claimed that the coffee had been converted by Ms. Bunch and/or mis-delivered to Ms. Bunch by the warehouses. Later, Armenia changed the basis for the claim, álleging instead that the entire purchase and sale transaction, including the ensuing loss of the coffee to Ms. Bunch, was the result of fraud on the part of Ms. Bunch and/or Richards. Armenia specifically claimed that Ms. Bunch, through an elaborate check-kiting scheme, converted the coffee supplied by Armenia and other coffee merchants for her own purposes, and due to Ms. Bunch’s actions, Richards was unable to pay its debt to Armenia.

Great American denied Armenia’s insurance claim on the basis that Armenia did not sustain an insured loss and had no insurable interest in the coffee. Great American investigated the claim and determined that Richard’s failure to pay Armenia for the coffee was nothing more than a credit loss. Armenia subsequently filed suit in July of 2001 seeking to recover from Great American the value of the subject coffee plus attorney’s fees, statutory penalties, and judicial interest. Armenia moved for summary judgment on the basis that there was no genuine issue of material fact as to coverage under the policy. Judge DiRosa, substituting |5for Judge Nadine Ramsey, denied the motion on the basis that Armenia had not shown a fortuitous loss, as is required by the policy. The matter then proceeded to a bench trial before Judge Ramsey.

The trial court concluded that Armenia had lost its coffee due to the fraud perpetrated by Ms. Bunch ánd Mr. Lemonier, and that the loss of the coffee due to this fraud was an insured loss. Accordingly, trial court ruled that Armenia was entitled to judgment for the insured value of the coffee plus judicial interest. Finding, however, that Great American was not arbitrary or capricious in denying the claim, the court denied Armenia’s claim for penalties and attorney’s fees.

Armenia filed a motion for new trial, which was granted in part and denied in part. The Amended Judgment changed the entity against whom judgment was entered from American National to Great American and established the date of judicial demand as the date from which judicial interest was to run. Subsequently, Great American filed the instant appeal on the basis that the district court’s findings are not supported by the facts and are clearly wrong. Armenia answered the appeal urging that the trial court erred in failing to award penalties and attorneys’ fees for Great American’s arbitrary and capricious failure to pay the underlying claim.

II. ASSIGNMENTS OF ERROR

In its appeal brief, Great American brings forth legitimate concerns regarding the trial court’s findings of fact and identification and analysis of the relevant issues. First, it argues that the trial court erred in identifying the issue in this case as whether Richards’ and Ms. Bunch’s actions were fraudulent, when the issue should have been whether there was any connection between the check-kiting |Rand the relevant Armenia-Richards’ sales transactions. Second, Great American argues that the trial court erred in failing to address the fundamental issue of whether Armenia proved an insured loss. Third, Great American argues that the trial court erred in failing to address the issue of whether Armenia had an insurable interest in the coffee after selling it and delivering it to Richards. Finally, Great American argues that the trial court erred in permitting Armenia’s expert to render opinions and offer testimony regarding the credibility of Mr. Lemonier’s deposition testimony.

In its Answer to Great American’s appeal, Armenia argues that the trial court erred in failing to award penalties and attorney’s fees for Great American’s arbitrary and capricious failure to pay the claim. It further argues that the court erred in failing to award judicial interest from the date payment on the claim should have been made.

III. APPLICABLE LAW

A. Standard of Review

The interpretation of an insurance policy is normally a question of law. See, e.g., Robinson v. Heard, 01-1697, p. 4 (La.2/26/02), 809 So.2d 948, 945. Where a question of law is presented to this Court, we must determine whether the lower court’s interpretive decision is legally correct. CII Carbon, L.L.C. v. National Union Fire Ins. Co. of Louisiana, 05-0071, p. 8 (La.App. 4 Cir. 8/17/2005), 918 So.2d 1060, 1065. In the instant case, however, we find that the issues of whether Armenia suffered an insured loss and whether Armenia possessed an insurable interest in the coffee are mixed questions of law and fact, which are subject to the manifest error standard of review. See Id., citing, Tadlock v. Taylor, 02-0712, p. 17 17(La.App. 4 Cir. 9/24/03), 857 So.2d 20, 38, writ denied, 03-3265 (La.3/12/04), 869 So.2d 819.

A court of appeal may set aside a trial court’s finding of fact where there is manifest error or the finding is clearly wrong. Stobart v. State of Louisiana, 92-1328 (La.4/12/93), 617 So.2d 880, 882. This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding, but must review the record in its entirety to determine whether the finding is clearly wrong. Id.

B. Coverage Under the Policy for the Instant Claim.

1. No conflict in the laws of Louisiana and New York

At the outset, we note that despite the fact that the parties discussed the issue of applicable law in their respective motions in support of and in'opposition to summary judgment, the trial court applied Louisiana law'without analyzing whether New York or Louisiana law applies to the substantive issues of this case. However, the parties agree that the laws of Louisiana and Nfew York are essentially the same in regard to insurable interest. Thus, because there is no “conflict” between the laws of Louisiana and New York and the result would be the same under either state’s law, we will give effect to the common policies of both states. See, e.g., Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972).

2. The Trial Court’s Manifest Error

We agree with Great American that the trial court’s analysis of the issues was erroneous and, as a result, the court reached incorrect legal determinations. In fact, the trial court failed to identify and analyze the threshold issue of the case. This is evident in the written reasons for judgment wherein the trial court judge stated that the issue before the court was “whether Richards’ and Ms. Bunch’s factions were fraudulent.” Then, after making the initial finding that Richards and MGB engaged in check-kiting .with regard to their respective banks, the court leapt to the conclusion that the check-kiting between MGB, Richards, and their respective banks, induced Armenia to sell its coffee to Richards resulting in an insured loss. Based on this erroneous analysis, the court found that Armenia was entitled to coverage under the insurance policy.

Because recovery under an insurance policy can only be had where the insured has an insurable interest in the subject of the policy at the time of the insured loss, the pivotal issues in this case are whether Armenia possessed an insured interest in the coffee at the time of the alleged loss and whether Armenia suffered an insured loss, either of which would be dispositive to this claim. The district court’s failure to address these issues before determining the existence of coverage for the claim constitutes manifest error. Therefore, we must review the record in its entirety to determine whether the trial court’s finding that the policy provides coverage for Armenia’s claim was clearly wrong.

3. Insurable Interest

Great American argues that there can be no coverage for Armenia’s claim because Armenia did not possess an insurable interest in the coffee after the coffee was sold and delivered to Richards. On the other hand, Armenia argues that it clearly possessed an insurable interest in the coffee at the time of the sales, and because the sales were induced by fraud, the policy provides coverage for this claim.

Under both Louisiana and New York law, the insured must prove that it possessed an insurable interest in the property in order to recover on an insurance 1 apolicy covering the property. See, e.g., Young v. State Farm Fire & Casualty Ins. Co., 426 So.2d 636, 640 (La.App. 1 Cir.1982), writs denied, 433 So.2d 148, 171 (La.1983), and Scarola v. Insurance Co. of N. Am., 31 N.Y.2d 411, 340 N.Y.S.2d 630, 292 N.E.2d 776 (1972). The insurable interest must exist not only at the time the policy is written but also at the time of the loss. Brown v. State Farm Fire & Casualty Co., 363 So.2d 967, 968 (La.App. 3 Cir.1978). If the loss of the insured property does not expose the insured to either direct, immediate or potential financial loss or liability, the insured is without an insurable interest. See, e.g., Rube v. Pacific Insurance Co. of New York, 131 So.2d 240, 243 (La.App. 1 Cir.1961).

In regard to insurable interest in sold property, the Louisiana Supreme Court stated in Union Cent. Life Insurance Co. v. Harp, 203 La. 806, 14 So.2d 643, 647 (1943),

“A vendor retains an insurable interest in the property sold so long as he has any interest therein, in other words, so long as he would suffer by its destruction, as where he has taken back a mortgage for the purchase price, or where the contract of sale calls for a reconveyance of a lessor estate in the premises by the purchaser to him ... The interest of the vendor ceases however, where all risk of loss rests with |10the vendee and no injury will result to the vendor from the destruction of the property.”

In regard to transfer of risk of sold goods, the Louisiana Civil Code provides, “[t]he risk of loss of the thing sold owing to a fortuitous event is transferred from the seller to the buyer at the time of delivery.” La. Civ.Code Art. 2467. New York law follows the Uniform Commercial Code to determine when risk of loss passes to the buyer. The relevant statute, N.Y. § 38:2-509, states that “where the goods are held by a bailee to be delivered without being moved, the risk of loss passes to the buyer (a) upon his receipt of a negotiable document of title covering the goods....”

Great American contends that the sale of the subject coffee was effective, and ownership transferred from Armenia to Richards, when the parties agreed to each transaction at the agreed price, despite the fact that the price had not been paid. Great American further argues that pursuant to either state’s law, the risk of loss passed from Armenia to Richards, at the latest, at the time of delivery. Therefore, according to Great American, since Armenia had no mortgage or other security device on the sold coffee, it had no substantial economic interest, and, thus, no insurable interest in the coffee.

The facts in the record support Great American’s contentions. Armenia’s sales agent, Mr. Randall, testified that after entering into the subject sales agreements with Richards for the coffee, Armenia issued Delivery Orders authorizing release of the coffee to Richards’ order corresponding to each transaction. Mr. Randall admitted that the delivery orders entitled Richards to immediate possession of the coffee. Mr. Randall also testified that after selling it, Armenia did not follow the coffee that it sold to Richards and whatever Richards ludid with the coffee after purchasing it from Armenia was of no interest to Armenia. Thus, the authorized sales and delivery of the coffee to Richards pursuant to Armenia’s delivery orders terminated Armenia’s insurable interest in the cargo.

Armenia subscribes to a wholly different view. Armenia argues that it did possess an insurable interest in the subject coffee at the time of loss, because the relevant time of loss- is the exact moment that the sales were made. Armenia argues that it is illogical that Armenia should lose its insurable interest in the coffee at the very moment it sold the coffee to Richards because the sales themselves were the very instrument of fraud. It further argues that Armenia owned, and certainly, possessed an insurable interest in, the coffee at the time it negotiated the sale of the coffee to Richards.

According to Armenia, the entire purchase-and-sale transaction, and the resulting loss of its coffee to Ms. Bunch, was the result of Ms. Bunch’s and/or Richards’ fraud, and, since fraud is a covered risk under the policy, there is coverage for this claim. However, in order for this argument to have merit, Armenia would have to show a connection between the alleged fraud that occurred and the subject coffee sales.

Armenia alleges that in order to deceive Armenia and induce it to sell its coffee, Mr. Lemonier and Ms. Bunch engaged in a “systematic scheme to kite checks to falsely inflate their bank balances.” Mr. Lemo-nier’s deposition testimony, which was introduced at-trial, indicated that Richards intended to pay Armenia for the subject coffee, as it always had in the past, but was unable to do so [^because MGB did not pay Richards. Mr. Lemonier admitted that he resorted to swapping worthless checks with Ms. Bunch, but stated that he only did so in an effort to pay his vendors for coffee purchased by Richards. Despite the testimony, the trial court concluded that the check-kiting constituted fraud and that “Armenia suffered loss of its goods as a result of this fraud.” However, unless there is evidence in the record that the check-kiting between Richards, MGB and their respective banks provided the inducement for, or had anything to do with, the coffee sales then it cannot-be said that the coffee sales were induced by fraud and there can be no basis for Armenia’s insurance claim.

To provide evidence for its claim of fraud in the sales, Armenia hired Glyn Miller, a forensic accountant, to review the bank records, review Mr. Lemonier’s deposition testimony, compile spreadsheets and other documents, and testify at trial about how the money moved through the pertinent accounts. Mr. Miller testified that MGB’s credit balance with Richards grew rapidly and sharply during the time that Armenia sold the subject coffee to Richards. Additionally, according to Mr. Miller, Richards’ account at Whitney Bank reflected numerous checks from Ms. Bunch drawn on various accounts as well as checks drawn on Richards’ account to Ms. Bunch that were not backed by sufficient funds. Mr. Miller testified that the worthless checks were exchanged by Ms. Bunch and Mr. Lemonier during the time period that the relevant coffee sales were made. However, while compelling on the issue of the existence of the check-kiting itself, other than his own opinion, Mr. Miller’s testimony did not uncover any evidence that there was any connection between the alleged check-kiting and the sales transactions such that Armenia was induced by the alleged fraud to sell its coffee to Richards.

haAs the trial court noted, the purpose of check-kiting is to secure credit or the use of funds which do not belong to the drawer of the check, but are funds which are owned by the bank on which the funds are drawn. See, e.g., National Bank of Commerce v. Hughes-Walsh Co., 246 So.2d 872 (La.App. 4 Cir.1971). In check-kiting cases, the party that suffers the loss is the bank or banks upon which the checks are drawn. See Id., and Williams v. United States, 458 U.S. 279, 102 S.Ct. 3088, 73 L.Ed.2d 767 (1982). In the instant case, assuming that the exchange of worthless checks between Ms. Bunch and Mr. Lemonier rises to the level of fraud, the victims of the fraudulent check-kiting would be Ms. Bunch’s and Richards’ respective banks, not Armenia. The trial court, however, expanded the effect of the check-kiting beyond the banks involved, to the unrelated coffee sales.

The trial court grounded its finding of fraud in the coffee sales in its conclusion that the check transactions were “fictitious with the purpose of falsely inflating the bank balances when in fact, there was little or no money.” However, nothing in the record indicates that Armenia ever saw, asked for, or had any interest in Richards’ bank statements or its financial status. Therefore, Armenia could not have relied on Richards’ inflated bank balance because it was never aware of Richards’ bank balance.

A review of the record indicates that Armenia was induced to sell the coffee' on credit to Richards based on nothing more than Richards’ reputation and their longstanding relationship. Richards was a well-respected trading company that had been in existence since the 1940’s. Armenia had been selling coffee to Richards for years. Mr. Randall knew Ms. Bunch personally and had traded with her, as Richards’ agent, since 1992. Richards had always paid Armenia for the coffee it purchased on credit. Because of their successful business relationship, luArmenia allowed Richards leeway in making payment. In the subject coffee sales, just as in the numerous sales the companies had entered into in their decades of prior dealings, Armenia conducted its business with Richards without the benefit of any security interest to protect itself. Thus, it was on its years of successful business dealings with Richards that Armenia relied — not on Richards’ bank balance.

Armenia cites two New York cases in its brief to support its argument that it has an insurable interest in the coffee and is entitled to recover for its loss because the subject sales, themselves, were fraudulent. See Great Northern Ins. Co. v. Dayco Corp., 637 F.Supp. 765 (S.D.N.Y.1986) and Farr Man Coffee Inc. & CB & F Interamerica, Inc. v. Chester, 1993 WL 248799 (S.D.N.Y.1993). However, as Great American points out, these cases are distinguishable from the instant case because they involve fraud in the documents of sale. In these cases, because the sales transactions were fictitious, there was no transfer of title, possession, or risk of loss of the goods. In the instant case, the parties are in agreement that none of the documents related to these transactions were forged or otherwise improperly prepared. Therefore, Armenia’s reliance on these two cases is misplaced.

Armenia’s attempt to establish an insurable interest predicated upon the check-kiting scheme and inflated bank balances is without foundation in the record, as there is no evidence , of a connection between the alleged check-kiting and the coffee sales. Armenia did not produce any evidence that the subject coffee sales were induced by fraud. The evidence shows that the transactions between Armenia and Richards for the subject coffee were all intentional, authorized, bona fide sales, which were conducted in the normal course of dealings between the 1 ^parties. The only thing different about the subject coffee sales as opposed to the prior sales is that Richards ultimately failed to pay Armenia for the subject coffee.

The trial court’s finding of coverage for this claim is not supported by the record and is clearly wrong. We find that Armenia possessed no insurable interest in the coffee for purposes of bringing this claim. Since lack of insurable interest is disposi-tive of Armenia’s case, we need not consider Great American’s remaining assignments of error.

D. Attorney’s Fees and/or Penalties

Armenia appeals the trial court’s judgment denying its claim for the damages it allegedly sustained as a consequence of American National’s arbitrary and capricious denial of its claim. We need not address the argument on attorney’s fees and penalties because they cannot be awarded without a supporting insurance claim. Therefore, we deny Armenia’s request for penalties and attorney’s fees pursuant to La. R.S. 22:658.

CONCLUSION

Armenia has not proven its case for coverage under the policy. The coffee was not stolen, converted, lost or damaged, but was sold and delivered to Richards, its intended buyer, which thereby terminated Armenia’s insurable interest in the coffee. There is no factual basis in the record for the trial court’s finding that the coffee was lost due to fraud. Accordingly, the Policy does not provide coverage to Armenia for the instant claim.

DECREE

For the reasons stated above, this Court reverses the judgment of the trial court and finds in favor of American National in regard to Armenia’s insurance |1ficlaim. We further deny Armenia’s request for statutory penalties and attorney’s fees.

REVERSED.

      . Subsequent to the issuance of the policy, American National changes its name to "Great American Insurance Company of New York.”

      . None of the documents related to these transactions were forged or otherwise improperly prepared.

      . In Louisiana, the law regarding insurable interest is contained in Louisiana Revised Statute 22:614. It provides:
      No contract of insurance on property or of any interest therein or arising therefrom shall be enforceable except for the benefit of persons having an insurable interest in the things insured.
      B. "Insurable interest” means any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damages.
      The New York statute regarding insurable interest, N.Y. § 28:3401, is similar to Louisiana’s. It provides,
      "No contract or policy of insurance on property made or issued in this state shall be enforceable except for the benefit of some person having insurable interest in the property insured. In this article, 'insurable interest’ shall include any lawful and substantial economic interest in the safety or preservation of property from loss, destruction, or pecuniary damage."

      . A "sale” is a contract that requires "the thing, the price and the consent of the parties.” La. Civ.Code Art. 2439. "Ownership is transferred between the parties as soon as an agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid.” La. Civ.Code Art. 2456.

      . Fraud is a misrepresentation or suppression of the truth made with the intention to either obtain an unjust advantage for one party or cause a loss or inconvenience to the other. La. Civ.Code. Art. 1953. To prove fraud under Louisiana law, one must show: (1) intent to defraud, and (2) actual or potential loss or damages. Williamson v. Haynes Best Western,
        95-1725 (La.App. 4 Cir. 1/29/97), 688 So.2d 1201, 1238


author: AMY, Judge.

text:
    STATE of Louisiana v. Carl W. BRISTER.
    No. 06-884.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      David W. Burton, District Attorney, Richard Alan Morton, Assistant District Attorney, DeRidder, LA, for Appellee, State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant, Carl W. Brister.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   AMY, Judge.

hThe defendant, an adult, was charged by bill of information with two counts of felony carnal knowledge of a juvenile in violation of La.R.S. 14:80 for having sexual intercourse with a fifteen year-old female. Pursuant to a plea agreement, the defendant pled guilty to one count of felony carnal knowledge of a juvenile. The second count was dismissed. The defendant was sentenced to five years at hard labor with credit for time served. This sentence was ordered to run concurrently with any other sentences the defendant was subject to at the time of arrest. In addition, the defendant was ordered to pay a $1,000.00 fine plus court costs. He was also ordered to register as a sex offender pursuant to La.R.S. 15:542. The defendant filed a motion to reconsider the sentence, which the trial court denied. He now appeals, alleging that his sentence is excessive and that the trial court did not adequately consider certain mitigating factors. For the following reasons, we affirm as amended and remand with instructions.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the -record, we find one error patent in need of correction.

Pursuant to La.R.S. 15:537(A), a person convicted of or who pleads guilty to a sex offense, including felony carnal knowledge of a juvenile, “shall not be eligible for diminution of sentence for good behavior.” Here, the trial court failed to deny the defendant diminution eligibility under the statute. In State v. S.D.G., 06-174, p. 5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247 (citing State v. G.M.W., Jr., 05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461), this court stated:

DWe note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court’s failure to include a denial of diminution of sentence thereunder renders Defendant’s sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La. Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.

Here, the defendant’s sentence is illegally lenient in that the trial court failed to deny diminution of sentence. Thus, we amend his sentence to-reflect that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537. The trial court is instructed to note the amendment in the court minutes.

Excessive Sentence

The defendant argues that the “sentence imposed is excessive for this offender and this offense.”

At his sentencing hearing, the defendant orally motioned the court to reconsider his sentence. He asserted that he was being sentenced more severely than his co-defendant who was sentenced to five years probation. This motion was denied. Thereafter, the defendant filed a written motion to reconsider sentence, in which he asserted that “[t]he sentence imposed is excessive.” That motion was also denied.

Louisiana Revised Statutes 14:80 provides in pertinent part:

D. Whoever commits the crime of felony carnal knowledge of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not more than ten years, or both,, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, unit denied, 01-0838 (La.2/1/02), 808 So.2d 331, this court explained the standard to be used in reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive ^sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-0562 (La.5/30/03), 845 So.2d 1061, this court stated:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

In sentencing the defendant, the trial court explained:

Although you have no prior felony convictions, you have had a very — you have very substantial contacts with law enforcement agencies, including several arrests and misdemeanor convictions. You are now 25 years of age and during the last eight years have been arrested at least eight times. You have been convicted of DWI, possession of marijuana, simple battery, driving under suspension and attempted theft. The charge of attempted theft was a result of a looting charge being reduced.
Considering your foregoing criminal record, the Court does not consider you to be a good candidate for probation. In arriving at your |4sentence, I have taken into consideration all of the provisions of the Code of Criminal Procedure 894.1.
Accordingly, it is the sentence of the Court that you serve five years with the Department of Corrections at hard labor.

After reviewing the record, we do not find that the defendant’s sentence was excessive. The presentencing investigation report revealed a number of arrests and misdemeanor convictions. We note that the defendant was sentenced to half of the statutory maximum for this offense. Furthermore, pursuant to a plea agreement entered into with the State, the defendant was allowed to plead guilty to one count of felony carnal knowledge of a juvenile with the other count being dismissed. Had he not pled guilty, the defendant potentially faced two sentences that each carried a maximum sentence of ten years.

Additionally, in determining whether the defendant’s sentence is excessive, we give no consideration to the sentence received by his co-defendant insofar as “a sentence must be individualized as to each defendant.” State v. Lofton, 97-383, p. 5 (La.App. 3 Cir. 10/8/97), 701 So.2d 712, 715, writ denied, 98-0389 (La.6/5/98), 720 So.2d 679. As such, we find that the trial court did not abuse its discretion in imposing the defendant’s sentence.

This assignment has no merit.

Mitigating Factors

The defendant argues that the “Trial Court failed to adequately consider the mitigating factors listed in La.Code Crim.P. art. 894.1 in imposing a sentenced]”

After reviewing the record, we note that the defendant did not raise this issue at his sentencing hearing or in his written motion to reconsider the sentence. Pursuant to La.Code Crim.P art. 881.1(E), his failure to “include a specific ground upon which |sa motion to reconsider sentence may be based, including a claim for exces-siveness, shall preclude ... the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.” See State v. Evans, 27,183 (La.App. 2 Cir. 9/27/95), 661 So.2d 600 (because the defendant did not mention mitigating factors at his sentencing hearing or in his motion for reconsideration of sentence, he was precluded from asserting those issues on appeal). Likewise, we find that the defendant cannot raise this issue for the first time on appeal.

This assignment is without merit.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed. The defendant’s sentence is amended to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537. This matter is remanded to the trial court with instructions to make a notation in the minutes reflecting the amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.


author: DECUIR, Judge.

text:
    Tina Lynette WATKINS v. Dr. Richard BARRY.
    No. 06-858.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 24, 2007.
    R. Ray Orrill, Jr., Leslie A. Cordell, W. Christopher Beary, Orrill, Cordell & Beary, L.L.C., Lafayette, LA, for Plain-tifi/Appellee, Tina Lynette Watkins.
    Michael Keith Prudhomme, Lundy & Davis, Lake Charles, LA, Milo Nickel, Jr., Nadia de la Houssaye, David B. Gooch, The Dill Firm, A.P.L.C., Lafayette, LA, for Intervenor/Appellant, Louisiana Patients’ Compensation Fund.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   DECUIR, Judge.

bThe Louisiana Patients’ Compensation Fund pursued an appeal of certain post-judgment rulings in this medical malpractice case. Finding no merit to the position advocated by the PCF, we affirm the judgment rendered in favor of the plaintiff, Tina Lynette Watkins.

In 1990, Watkins gave birth to a son, Dustin P. Watkins. Shortly after his birth, doctors determined the child had suffered a stroke in útero, which caused serious and permanent debilitating injuries. The plaintiff asserted a medical malpractice claim against the treating obstetrician, Dr. Richard J. Barry, and Lake Charles Memorial Hospital. After trial on the merits, judgment was rendered against Dr. Barry and the PCF on December 8, 2003, for the maximum amount of medical malpractice damages, $500,000.00, plus accrued medical and other expenses in the amount of $437,193.08. Future medical and custodial care expenses were also awarded and, in accordance with La.R.S. 40:1299.43(A)(2), were specifically itemized and quantified at over $6,000,000.00, including custodial care for twelve hours a day until Dustin’s eighteenth birthday and twenty-four hour a day for the remainder of his life. Dr. Barry paid his portion of the judgment. On appeal by the PCF, the judgment was affirmed as amended so as to clarify the computation of judicial interest, and supervisory writs were denied by the supreme court. See Watkins v. Lake Charles Mem’l Hosp., 04-355 (La.App. 3 Cir. 12/15/04), 896 So.2d 130, writ denied, 05-0145 (La.4/8/05), 898 So.2d 1279.

Immediately after the judgment became final, the plaintiff made a demand for payment. In June of 2005, the PCF paid a portion of the judgment; the payment included general damages as well as accrued medical and custodial care expenses incurred up to November 19, 2003, the date of trial. The following month, the plaintiff again made demand for payment of expenses incurred since the date of trial. li>,The PCF notified the plaintiff that she would have to forward a signed W-9 taxpayer identification form and notes reflecting the hours worked and duties performed by the custodial care provider. The plaintiff responded with a W-9 form in the name of the Dustin P. Watkins Special Needs Trust and an affidavit stating that Dustin is still alive and that his disabilities have not diminished since the date of trial. The plaintiff requested that future custodial care payments be made to the Special Needs Trust, and she asserted that a record of the hours and duties of the custodial care provider was not required by law or by the judgment rendered in her favor.

Six weeks later, in September of 2005, the plaintiff filed the instant rule alleging the PCF had arbitrarily refused to pay custodial care expenses. She also requested an order that further payments be made to the Special Needs Trust. The trial court ruled in the plaintiffs favor. The PCF’s numerous exceptions were overruled, and it was ordered to make quarterly advanced payments of custodial care expenses to the trust, at the hourly rate specified in the original 2003 judgment, upon receipt of certification that there has been no change in Dustin’s condition in the previous thirty days.

In this appeal, the PCF has presented three assignments of error:

1. The trial court erred in ordering the PCF to pay future medical care payments prior to the service being provided.
2. The trial court erred by holding that a plaintiff who submits a claim for reimbursement of future medicals pursuant to La.R.S. 40:1299.43 need not provide any evidence that the services were actually rendered.
3. The trial court erred in ordering the PCF to pay custodial care payments to a Special Needs Trust instead of the actual care provider.

IsAfter due consideration of the provisions of the Medical Malpractice Act, La. R.S. 40:1299.41 et seq., and relevant jurisprudence applicable to this case, we find no merit to the arguments advanced by the PCF and affirm the ruling of the trial court.

By requiring the plaintiff to submit verification of custodial care expenses, the PCF ignores the mandate of the 2003 judgment. The judgment established both the need and amount of future expenses. While the judgment is not made executory until a claim has been submitted to the PCF, the PCF, in administering the claim, does not have authority to alter the terms of the final judgment in the plaintiffs favor. Disputes between the plaintiff and the PCF are to be resolved in the district court from which the original judgment issued. La.R.S. 40:1299.43(E)(1). In fact, in a dispute between the PCF and a claimant over the validity of expenses, the PCF has the burden of proof. See Bartee v. Children’s Clinic of S.W. La., 05-583 (La. App. 3 Cir. 8/17/05), 910 So.2d 470, writ denied, 05-2465 (La.3/24/06), 925 So.2d 1230.

The PCF’s obligation to pay future medical expenses is set forth in La.R.S. 40:1299.43(0:

Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits that will be incurred after the date of the response to the special interrogatory by the jury or the court’s finding or a settlement is reached between a patient and the patient’s compensation fund in which the provision of medical care and
related benefits that will be incurred after the date of settlement is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.

In an effort to enforce the PCF’s statutory obligation to the plaintiff, the trial court fashioned a plan for the quarterly submission of verified claims, allowing for timely payment by the PCF and no out-of-pocket costs to the plaintiff.

|4The PCF has refused to implement the trial court’s order and attempts to quibble over the word “incurred.” The PCF contends that medical and custodial care expenses are payable to a plaintiff only after the service has been provided, a bill has been received by the plaintiff and submitted to the PCF, and the PCF has reviewed it within thirty days of receipt. By contrast, the trial court ordered the PCF to make prospective payments for custodial care at the beginning of each quarter in which custodial care would be required. In other words, the court required the PCF to pay up front for care that would be needed for the next ninety days. This is no different than purchasing a movie ticket prior to walking into the theater. Quite simply, we find the effects of the PCF’s administration, i.e., custodial care workers must wait thirty days to be paid, or catastrophically injured patients must pay out of pocket for custodial care, only to recoup it months later from the PCF, to be unconscionable. The trial court’s remedy of a quarterly payment plan upon certification by the plaintiff that the need for care remains, is a practical solution to what can be an administrative nightmare.

In an effort to cast suspicion on the intentions of the plaintiff, the PCF also argues that because the plaintiff is providing the custodial care to her son personally, she is attempting to circumvent tax and Medicaid laws by seeking payment to the Special Needs Trust. This argument is baseless. Federal law provides for the establishment of a special needs trust to provide funding for the care of disabled persons in addition to Medicaid or Social Security disability benefits for which the person may be eligible. 42 U.S.C. § 1396. Payments by the PCF or any private insurer or other entity to such a trust does not constitute participation in a fraud.

Nevertheless, the PCF is not without recourse in the event that abuse occurs or is suspected. Section 1299.43(E)(1) provides that “the district court from which final | ¿judgment issues shall have continuing jurisdiction in cases where medical care and related benefits are determined to be needed by the patient.” Section 1299.43(G) allows the PCF to require the plaintiff to submit to periodic examinations by the physician of its choice. These remedies are in addition to the right to appeal, which the PCF exercised fully in this case to no avail. We know of no other defendant so fortunate as to have post-judgment rights of review, as well as the lifetime of the plaintiff, to pay damages, as the PCF.

Regarding the PCF’s contention that the trial court erred in requiring it to make payments to the Dustin P. Watkins Special Needs Trust, we find no merit to this argument.

Finding no manifest error in the ruling of the trial court, we affirm. All costs of this appeal are assessed to the PCF.

AFFIRMED.