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

text:
    COX COMMUNICATIONS v. TOMMY BOWMAN ROOFING, LLC and Colony Insurance Company.
    No. 2004-CA-1666.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 2006.

      Matthew J. Ungarino, David I. Borde-lon, Ungarino & Eckert, L.L.C., Metairie, LA, for Plaintiff/Appellant, Cox Communications.
    Shelley Hammond Provosty, H. Philip Radecker, Jr., Montgomery, Barnett, Brown, Read, Hammond & Mintz, New Orleans, LA, for Defendants/Appellees, Tommy Bowman Roofing, L.L.C. and Colony Insurance Company.
    (Court composed of Judge PATRICIA R. MURRAY, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, JR., Judge EDWARD A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

|,The plaintiff, Cox Communications (“Cox”), appeals a district court judgment rendered in its favor against the defendants, Tommy Bowman Roofing, L.L.C. (“Bowman Roofing”), and its insurer, Colony Insurance Company.

FACTS AND PROCEDURAL HISTORY

Cox entered into a contract with Bowman Roofing to replace the roof of its office building located at 2120 Canal Street in New Orleans. During the course of the work, vapors from the asphalt surface primer entered the building through an air-intake vent on the roof. Due to the noxious odor emanating from the vapors, Cox’s management ordered the evacuation of the building. As a result, Cox’s sales representatives and service employees were away from the office building for approximately three hours.

Cox subsequently filed suit against the defendants, seeking to recover the loss of revenue and profits, lost wages, medical expenses, attorney fees, and litigation costs that it incurred as a result of the evacuation. Alternatively, Cox claimed that the written contract between the parties contained an indemnity | ^provision that required Bowman Roofing to indemnify Cox for any claims resulting from Bowman Roofing’s negligent performance under the contract.

Following a trial, the trial court found that Cox sustained a loss of profits due to Bowman’s negligence and determined that the indemnity provision in the contract required the defendants to indemnify Cox against third party claims only. The trial court rendered judgment against the defendants, awarding Cox loss of profits of $3,428.00, employee medical expenses of $450.90, and attorney fees of $337.50, with interest from the date of judicial demand as well as the costs of the proceedings.

DISCUSSION

On appeal, Cox argues that the trial court erred in interpreting the contractual indemnity provision as requiring Bowman Roofing to indemnify, defend and hold harmless Cox for only third party claims against Cox. Cox contends that the contractual provision does not expressly limit indemnification to third party claims and, therefore, Bowman Roofing must indemnify it for its total losses as a result of the roofing contractor’s negligence, including loss revenue, attorney fees and litigation expenses incurred to recover those losses.

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La.1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly 1 swrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.... Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong....
When findings are based on determinations regarding the credibility of witnesses, the manifest error- — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844.

Where the trier of fact, however, has not applied the correct law in arriving at its conclusions, the standard of review that this Court must use is different. In the Rosell case, the Supreme Court stated:

Nevertheless, when the court of appeal finds that- a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.

549 So.2d at 844, n. 2, citing Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

Applicable Law and Analysis

The general rules that govern the interpretation of other contracts apply in construing a contract of indemnity. Soverign Ins. Co., v. Texas Pipe Line Co., 488 So.2d 982 (La.1986). Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La. C.C. arts. 1983 and 2045. If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La. C.C. art. [42046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art. 2050. Whether or not a contract is ambiguous is a question of law. American Deposit Ins. Co. v. Myles, 00-2457 (La.4/25/01), 783 So.2d 1282, 1286.

The indemnity provision set forth in paragraph 10 of the Independent Contractor Agreement between Bowman Roofing and Cox reads as follows:

Contractor shall indemnify, defend and hold harmless Cox, its officers, directors, shareholders, employees, agents and representatives, from any and all claims, demands, losses, costs (including attorney’s fees), expenses and liabilities of any nature whatsoever in connection with or resulting from Contractor’s performance under this Agreement, the fulfillment of Contractor’s obligations or failure to fulfill its obligations under this Agreement, the breach of any representation or warranty made by Contractor under this Agreement, the conduct of Contractor’s employees or agents, and/or the breach of any Applicable Laws by Contractor, its employees or agents.

Furthermore, the insurance provision set forth in paragraph 9 of the agreement requires that Cox be named as an additional insured under the Contractor’s General and Automobile liability policy.

In his reasons for judgment, the trial court stated that he disagreed with Cox’s suggested interpretation of the indemnity agreement, as it would lead to absurd consequences, i.e., Bowman Roofing would have to defend, indemnify and hold harmless Cox against Cox. After reviewing the written contract, we find that the trial court erred as a matter of law in determining that the indemnity provision required Bowman Roofing to indemnify Cox only for third party claims against the company.

This is not a dispute in which Cox is seeking indemnity for its | Rown negligence. If that were the case, i.e., the indemnitee was to be indemnified for its own negligence, the contract must unequivocally demonstrate such an intent. See Perkins v. Rubicon, Inc., 563 So.2d 258 (La.1990) and Polozola v. Garlock, Inc., 343 So.2d 1000 (La.1977). Rather, in this case, Cox seeks indemnification for all claims resulting from Bowman Roofing’s negligent performance under the contract. That being said, we now examine the contractual provision at issue.

Here, the indemnity provision contains no limiting language and, read literally, applies to any and all claims brought in connection with or resulting from Bowman Roofing’s performance under the contract. Moreover, when the indemnity provision is interpreted in light of the other provisions and the contract as a whole, the intent to indemnify Cox against all claims arising from the contractor’s performance under the contract is evident. As the language of the indemnity provision is unambiguous and the intent of the parties is clear from consideration of the contract as a whole, further interpretation is not warranted.

In view of our findings that the indemnity provision requires Bowman Roofing to indemnify Cox for all claims resulting from the roofer’s negligent performance of the work and that, as a matter of law, the trial court erred in holding otherwise, we must now conduct a de novo review to determine whether Cox sustained any damages and, if so, the amount thereof.

Cox contends that as a result of the forced three-hour evacuation it is entitled to lost profits and wages of $26,148.78, the attorney fees of Ungarino & Eckert, L.L.C., and litigation expenses, including the expenses of the certified public accounting firm of Legier & Materne.

Mr. Elvin Thibodeaux, Jr., Cox’ s regional safety and risk manager, testified that following the evacuation his department conducted an investigation in order to file a claim with Colony Insurance Company. Based on payroll records and | ¿interviews with the employees, the safety and risk department determined that Cox had sustained substantial business disruptions and productivity losses. Cox introduced into evidence the Itemized Loss form prepared by Mr. Thibodeaux that listed Cox’s total losses as $26,148.79. This sum included $22,000.00 for loss of business revenue, $600.00 for loss of video production revenue and $3,548.79 for lost wages of the employees who had evacuated the building. Mr. Thibodeaux testified that after he had submitted the Itemized Loss form to Colony Insurance Company for payment and received no response, Cox retained the law firm of Ungarino & Ec-kert to pursue a tort claim against the defendants. According to Mr. Thibodeaux, Cox incurred $16,946.23 in attorney fees in litigating the claim. He further testified that Cox retained the services of Legier & Materne to calculate the company’s total losses as a result of the incident and to verify whether the risk department’s itemized loss estimate was accurate. Mr. Thi-bodeaux also verified the claim forms and invoices that Cox introduced at trial as evidence that it paid $461.70 in medical expenses for three employees who were injured as a result of inhaling the harmful vapors.

Mr. John Collier, a certified public accountant with Legier & Materne and Cox^s business valuation expert, testified that Cox retained the accounting firm to conduct a study to determine whether the company had sustained any lost profits and lost wages in connection with the evacuation. As part of the study, Mr. Collier reviewed numerous documents, including Cox’s income statements from May 31, 2000 through November 30, 2002, as well as weekly sales projection reports from July 5, 2001 to August 30, 2001. He also interviewed Cox supervisory personnel. Mr. Collier explained that he compared the revenue generated for two months before and after the evacuation and came up with a figure of $3,809.42 as an [7average of sales revenue per hour. He estimated the total lost sales profits for the three-hour period to be $10,514.00. As to the lost wages, Mr. Collier testified that the total lost wages of non-sales employees who had evacuated the building amounted to $3,051.99. The report produced by Legier & Materne listed Cox’s total losses, including interest, at $15,307.36. According to Mr. Collier and the invoices introduced into evidence, Legier & Materne billed Cox a total of $14,608.73 for its services.

To corroborate Mr. Thibodeaux and Mr. Collier’s testimony that Cox lost sales revenue during the evacuation because its sales representatives were not available for incoming calls from prospective advertisers, Cox presented the testimony of its business manager, Ms. Antoinette Antoine. Ms. Antoine testified that the sales department employed 13-15 people who were paid a base salary plus commission and were given an hour lunch period each day. She testified that potential sales in the form of short notice calls, i.e., an advertiser’s commercial would run within 24 hours of the sale, encompassed approximately 15% of the calls. If the calls came for a particular sales representative during lunch, the sales representative would be paged. If he or she could not be reached, the call would be transferred to an available representative. Ms. Antoine also testified that 15% to 20% of the sales calls each month came from new customers.

Kenneth Boudreaux, Ph.D., a forensic economist, testified as an expert for the defense. In his opinion, Mr. Collier’s methodology exceeded the “boundaries of confidence,” making it inherently flawed. Dr. Boudreaux testified that the sales department’s sales depend upon a variation of outside and inside calls making it difficult to average the loss as Mr. Collier did. In Dr. Boudreaux’s opinion, a more accurate method of calculation of lost sales would have been the difference ^between the profitability of the company over that period of time if the incident had not occurred versus the actual profitability of the company over that period of time. Essentially, Dr. Boudreaux explained, it is a “but for the event versus an actual set of measurements.” Dr. Boudreaux acknowledged that Cox probably sustained a loss as a result of the evacuation, but he did not determine the amount of that loss.

As a general rule damages for loss of profits may not be based on speculation and conjecture, however, such damages need be proven only within reasonable certainty. Lavigne v. J. Hofert Co., 431 So.2d 74, 77 (La.App. 1st Cir.1983). Broad latitude is given in proving lost profits because this element of damages is often difficult to prove and mathematical certainty or precision is not required. Louisiana Farms v. Louisiana Department of Wildlife and Fisheries, 95-845, p. 36 (La.App. 3 Cir. 10/9/96), 685 So.2d 1086, 1105.

Cox contends that it sustained a total loss of profits and wages of $26,148.78, yet its own expert, Mr. Collier, testified to the contrary. After reviewing the evidence in the record, we find that Mr. Collier’s estimate of $15,307.36 for the total loss of profits and wages, including interest, is also excessive. In calculating the lost profits due to the sales representatives’ absence during the evacuation, Mr. Collier deducted neither the base salaries nor the commissions that would have been owed to the sales representatives. In addition, the record indicates that during the evacuation period the facsimile (fax) and telephone lines were not interrupted and the sales representatives had voice mail to record incoming calls. Several of the sales representatives had cellular phones available to make calls and some, if necessary, could have met in person with prospective customers during the evacuation period. The trial court determined 19that Cox incurred some loss of revenue in the form of short sales and new sales calls, a finding that is supported by both the plaintiff and defendants’ experts. Thus, we will adopt the trial court’s sum of $3,428.00 as the amount of lost profits sustained by Cox during the evacuation, as this figure is both reasonable and supported by the evidence.

As to lost wages and revenues attributable to non-sales employees, we find Cox suffered no such loss. Cox did not present any evidence indicating that its customer base had decreased due to the customer service representatives’ absence or that its revenue from customer billing decreased during the evacuation.

The defendants did not refute the evidence offered by Cox to prove that it paid $461.70 in medical expenses for the three employees who required medical care as a result of inhaling the vapors. Therefore, we find Cox may recover these medical expenses.

Regarding attorney fees, the indemnity agreement provides that Bowman Roofing is to indemnify Cox for the attorney fees incurred as a result of the contractor’s negligent performance of the work. The invoices in evidence indicate that Ungarino & Eckert billed Cox a total of $16,946.23 to litigate the claim. After reviewing the evidence in the record, we find this amount is warranted. Colony Insurance Company failed to respond in any way to either Cox’s original demand letter or invoice for payment of the losses. Thus, Cox had no choice but to retain an attorney to litigate the claim. Furthermore, the invoices reflect that Ungarino & Eckert attorneys expended considerable time and effort in conducting discovery, preparing for trial and bringing this matter to judgment. Under these | ^circumstances, we find $16,946.23 is a reasonable amount for attorney fees in this matter.

Finally, based on our review of the evidence, we find that Legier & Ma-terne’s total fee of $14,608.73 is excessive and unwarranted considering the claim in dispute. Although Cox chose to retain the services of Legier & Materne to conduct a business valuation to verify whether it had sustained any losses as a result of the three-hour evacuation, it was not necessary to do so. It is apparent from Mr. Thibodeaux’s testimony that Cox’s safety and risk department was able to make such a determination. Nonetheless, because Colony Insurance Company made no offer to compensate Cox for any loss and Cox has litigated the claim successfully, we find that it is entitled to recover a reasonable sum for Mr. Collier’s services as a trial expert. The record reflects that Mr. Collier’s fee was $189.00 per hour. Thus, we will award Cox $3,780.00 for his services.

CONCLUSION

Accordingly, for the reasons stated herein, the judgment of the trial court is amended in part to award Cox Communications $461.70 in medical expenses, $16,946.23 in attorney fees, $3,780.00 for Mr. Collier’s services and to delete $14,608.73 for the fees of Legier and Má-teme, and, as amended, the judgment is affirmed.

AMENDED AND, AS AMENDED, AFFIRMED.

MURRAY, J., dissents in part with reasons.

TOBIAS, J., dissents in part and assigns reasons.

hThe starting point in determining the meaning of the indemnity provision is the language of the contractual provision, which reads as follows:

Contractor [ (Bowman Roofing)] shall indemnify, defend and hold harmless Cox, its officers, directors, shareholders, employees, agents and representatives, from any and all claims, demands, losses, costs (including attorney’s fees), expenses and liabilities of any nature whatsoever in connection with or resulting from Contractor’s performance under this Agreement, the fulfillment of Contractor’s obligations or failure to fulfill its obligations under this Agreement,' the breach of any representation or warranty made by Contractor under this Agreement, the conduct of Contractor’s employees or agents, and/or the breach of any Applicable Laws by Contractor, its employees or agents.

In construing the above provision, the majority reasons that the parties’ failure to include any limiting language requires the provision be read literally as applying to “all claims brought in connection with or resulting from Bowman Roofing’s performance under the contract.” The majority thus reverses the trial court’s finding that the indemnity provision requires Bowman Roofing to indemnify Cox only for third party claims. I disagree.

The terminology the parties employed in the indemnification agreement — “indemnify, defend and hold harmless” — evidenced, albeit implicitly, the limited nature of the agreement they intended. See La. C.C. art. 2047 (providing that “[w]ords of art and technical terms must be given their technical meaning when the contract involves a technical matter.”) By definition, an indemnity or hold | ¡^harmless agreement is “a contract whereby a party, called the in-demnitor, agrees to protect another, called the indemnitee, against damages incurred by the latter as a result of his breach of a duty owed to a third party.” 6 Saul Litvinoff, Louisiana Civil Law Treatise: The Law of Obligations Part II, § 11.27 (1999). The purpose of such an agreement is to “allocate the risk of loss or damage which may arise in the performance of their respective obligations.” Id. Stated otherwise, “[indemnity agreements merely shift from the indemnitee to the indemnitor a specific loss, liability, or duty to respond in damages [to a third party] that is or may be incurred by the indemnitee in the course of contractual performance.” Id. Because of the nature of the agreement, it is implicit that the parties intended for Bowman Roofing to indemnify Cox for any third party claims made against Cox as a result of the work performed under the contract. The trial court thus was correct in construing the indemnity provision as limited to third party claims.

Accordingly, I would affirm the trial court’s decision limiting Cox’s recovery under the indemnification agreement to $337.50 in attorney’s fees for the subrogation claim and $450.90 for the employees’ medical expenses. For these reason, I respectfully dissent in part.

TOBIAS, J.,

dissents in part and assigns reasons.

hi respectfully dissent in part. I do not find that Cox Communication’s employment of Legier & Materne to verify whether Cox sustained any losses as a result of the 3-hour evacuation was unreasonable under the circumstances. The CPA firm’s determination was warranted lest Cox be accused by the defendants of fabricating or embellishing the calculated loss made by Mr. Elvin Thibodeaux. I would therefore award the $14,608.73 fees of Legier & Materne.

      . The trial court awarded Cox $450.90 in employee medical expenses. Our review of the pertinent invoices, however, indicates that Cox paid $461.70 in medical expenses.


source: Caselaw Access Project

author: JAMES F. McKAY III, Judge.

license: Public Domain

text:
    Lionel BROWN v. Robert C. JONES, et al. Jerry J. HANO, Jr. v. Ron MAZIER, et al.
    No. 2006-CA-0260, 2006-CA-0261.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2006.

      Ike Spears, Derek Russ, Spears & Spears, Port Allen, Counsel for Plaintiff/Appellee, Lionel Brown.
    Stephen D. Hawkland, Attorney Supervisor, Department of State, Baton Rouge, Amicus Curiae on behalf of Al Ater in his capacity as Secretary of State.
    Andrew R. Lee, Virginia W. Gundlach, John B. Rosenquest IV, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, Counsel for Defendants/Appellants, Robert Chase Jones and Ron Ma-zier.
    Kenneth E. Pickering, Pickering & Co-togno, New Orleans, Counsel for Plaintiff/Appellee, Jerry J. Hano, Jr.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, Jr., Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

_[¿This appeal involves two consolidated cases: Lionel Brown versus Robert Chase Jones, 2006-CA-0260, and Jerry J. Hano, Jr. versus Ron Mazier, Et Al, 2006-CA-0261.

Robert Chase Jones qualified as a candidate in the April 22, 2006 municipal elections for the office of Assessor for the 4th Municipal District for the City of New Orleans. Mr. Jones qualified for the election under the name, Chase “I.Q.” Jones. “I.Q.” stands for I quit. Mr. Jones, as well as candidates in the six other assessor races have this designation added to their names. There also exists a corporate entity known as I.Q. Ticket, Inc.

Lionel Brown, a qualified elector of the 4th Municipal District filed a petition challenging Mr. Jones’s qualifications for office. After hearing the evidence, the trial court ruled that “I.Q.” is not a permissible “nickname” but an impermissible “designation” and ordered the Secretary of State to strike “I.Q.” from Mr. Jones’s ballot name. Judgment was entered on March 15, 2006. It is from this judgment that Mr. Jones now appeals.

| pRon Mazier qualified as a candidate in the April 22, 2006 municipal election for the office of Assessor for the 5th Municipal District for the City of New Orleans. Mr. Mazier qualified for the election under the name, Ron “I.Q.” Mazier. Jerry J. Hano, Jr., a qualified elector of the 5th Municipal District filed a petition challenging Mr. Mazier’s qualifications for office. The trial court, on March 15, 2006, ruled that “I.Q” is an impermissible designation and ordered the Secretary of State to strike “I.Q.” from Mr. Mazier’s name on all ballots. Mr. Mazier appeals this judgment.

On appeal, Mr. Jones and Mr. Ma-zier raise the following identical assignments of error: 1) the trial court committed legal error in ruling that “I.Q.,” a designated nickname, is impermissible on the election ballot, where the governing statute (La. R.S. 18:463) expressly permits a candidate to designate a nickname and the uncontroverted record evidence is that the nickname is neither deceptive nor a designation of a profession or occupation; and 2) in ruling that “I.Q.” is a political designation proscribed by La. R.S. 18:463, the trial court impermissibly construed the statute as prohibiting political speech in a candidate’s name on the ballot in violation of the candidate’s First Amendment rights.

A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State through DOTD, 617 So.2d 880 (La.1993). The issue to be resolved by a reviewing court is not whether the trier of fact was | aright or wrong, but whether the fact finder’s conclusion was a reasonable one. Housley v. Cerise, 579 So.2d 973 (La.1991).

Louisiana Revised Statute 18:463(A)(l)(b) states:

The candidate shall designate in the notice of the form in which his name shall be printed on the ballot. The candidate may designate his given, first, and middle name, the initials of his given, first, and middle name, a nickname, or any combination thereof as the form in which his name shall be printed on the ballot, but he shall not designate an occupational or professional description or abbreviation. If the candidate designates a nickname in place of or in combination with his given name or the initials thereof, the nickname shall be set off with quotation marks and shall be placed immediately preceding his surname. A candidate shall include his surname in his designation of the form in which his name shall be printed on the ballot.

Black’s Law Dictionary defines designation as:

An addition to a name, as of title, profession, or occupation, to distinguish the person from others. A description or descriptive expression by which a person or thing is denoted in a will without using the name. Also, an appointment or assignment, as to a particular office. The act of pointing out, distinguished by marks or description or calling by distinctive title, (emphasis added.)
BLACK’S LAW DICTIONARY 403 (5th ed.1979).

Correspondingly, Black’s defines nickname as:

A short name; one nicked or cut off for the sake of brevity, without conveying an idea of opprobrium, and frequently evincing the strongest affection of the most perfect familiarity.
BLACK’S LAW DICTIONARY 941 (5th ed.1979).

In the consolidated cases currently before this Court, both Mr. Jones and Mr. Mazier admit that they only started using the “I.Q.” moniker several weeks before qualifying for their respective races and that “I.Q.” is to inform voters that they will take no salary and work for the contraction of the number of assessors from seven to one. Clearly, “I.Q.” points out to voters what these candidates will do if |4they are elected. In both cases, the trial courts ruled that “I.Q.” was not a permissible “nickname” but was an impermissible “designation” under La. R.S. 18:463. When we look at the record before this Court as well as accepted meanings of these two words, there is nothing manifestly erroneous or clearly wrong with the rulings which the trial courts made.

Litigants must raise constitutional challenges in the trial court, rather than in the appellate court, except when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court, a statute attempts to limit the constitutional power of the courts to review cases, the statute has been declared unconstitutional in another case, or an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue is made to as an error patent on the face of the "record. Mallard Bay Drilling, Inc. v. Kennedy, 914 So.2d 533 (La.2005). A constitutional challenge must be specially pleaded and the grounds for the claim particularized. Id. In the instant cases, none ■ of these conditions have been met. Accordingly, the constitutional claims are not reviewable by this Court.

For the foregoing reasons, the judgments of the courts below are both affirmed.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    Lionel BROWN v. Gerard ARCHER, et al.
    No. 2006-CA-0262.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2006.

      Ike Spears, Derek Russ, Spears & Spears, Port Allen, Counsel for Plaintiff/Appellant.
    Terry Boudreaux, Metairie, Counsel for Defendant/Appellee. .
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO Jr., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11STATEMENT OF THE CASE:

Plaintiff-Appellant, Lionel Brown, appeals the trial court’s denial of his Petition to Challenge Candidate’s Qualifications for Office alleging that Gerard Archer (“Mr. Archer”) did not meet the requisite qualifications for the Office of Assessor for the Fourth Municipal District of the City of New Orleans. More particularly, Appellant contends that Mr. Archer is not a resident of the Fourth Municipal District and has not been domiciled in that district for the required period of one year.

The trial court found that Appellant misinterpreted the domiciliary and residency requirements for qualification for the Office of Assessor for the Fourth Municipal District of the City of New Orleans. It found that the Constitution and laws of the State of Louisiana do not require that a candidate for said position be domiciled in the municipal district for which he qualifies as a candidate, so long as he has been domiciled in the Parish of Orleans for the requisite period of one year. The trial court then made the determination that Mr. Archer was qualified to run as a candidate for tax assessor in the Fourth Municipal District of Orleans Parish.

| .FACTS:

The parties largely stipulated to most of the relevant facts in this case. Mr. Archer moved into a residence at 6737 General Haig Street in New Orleans in March of 2005, which is in the Second Municipal District. He was registered to vote at the General Haig Street address from June 28, 2005 until'November 9, 2005. His General Haig Street residence suffered substantial flooding during Hurricane Katrina, and as a consequence, Mr. Archer moved his residence to 1233 Seventh Street, which is located in the Fourth Municipal District, in October of 2005. He lives there with his family. His driver’s license has the Seventh Street address on it, he receives bills there, and he has been registered to vote at that location since November 9, 2005.

STANDARD OF REVIEW:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). The Louisiana Supreme Court has provided a two-part test for the reversal of a fact finder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of a trial court; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Stobart v. State of Louisiana, Through the Dept. of Transp. & Development, 617 So.2d 880 (La.1993); McElveen v. City of New Orleans, 2003-1609, p. 4 (La.App. 4 Cir. 9/14/04); 888 So.2d 878, 880-81.

LAW AND ANALYSIS:

|sAppellant argues that Mr. Archer failed to meet the domiciliary and residency prerequisites outlined by LSA-Const. Art. VII, § 24 and La. R.S. 18:451.2. Appellant further claims that it is a requirement that a candidate for tax assessor in Orleans Parish be a domiciliary for at least one year prior to qualification in both the parish and in the Municipal District he seeks to represent. We agree with the former but disagree with the latter.

A review of the Constitutional and statutory enactments provides the following:

At the time he files his notice of candidacy, a candidate for sheriff, tax assessor, or clerk of court shall have resided in the state for the preceding two years and shall have been actually domiciled for the preceding year in the parish from which he seeks election...

LSA-R.S. 18:451.2 (emphasis added.)

The Louisiana Constitution provides the following regarding tax assessors:

(B) Orleans Parish. There shall be seven assessors in New Orleans, who shall compose the Board of Assessors for Orleans Parish. One shall be elected from each municipal district of New Orleans, and each shall be a resident of the district from which he is elected. The assessors shall be elected at the same time as the municipal officers of New Orleans, for terms of four years each. Their duties and compensation shall be as provided by law.

LSA-Const. Art. VII, § 24 (emphasis added).

From these two sources, we can state the following facts about candidate qualification in an Orleans Parish Tax Assessor Election.

1. The candidate must have resided in Louisiana for at least two years before qualification.
2. The candidate must have been domiciled in Orleans Parish for at least one year before qualification.
|43. The candidate must be a resident in the Municipal District he/she wishes to represent.

We note that Appellant incorrectly construes “domicile” and “residence” to be the same. “The terms ‘residence’ and ‘domicile’ are legal terms that are not synonymous. The most oft-cited difference between the two concepts is that a person can have several residences, but only one domicile.” Landiak v. Richmond, 2005-0758, p. 8 (La.3/30/05); 899 So.2d 535, 542 (internal citations omitted).

Pre-trial stipulations address the state and parish domiciliary and residency requirements. The only domiciliary requirement for a candidate seeking to become an Orleans Parish tax assessor is that the candidate must have been domiciled in Orleans Parish for at least one year preceding qualification. La. R.S. 18:451.2. Both parties stipulated that Mr. Archer has been registered to vote in Orleans Parish since 1988, and Mr. Archer testified that he has been domiciled in Orleans Parish since 1981. It is clear that Mr. Archer has been domiciled in Orleans Parish in excess of one year.

A candidate for Orleans Parish tax assessor must be a resident in that Municipal District he wishes to represent. LSA-Const. Art. VII, § 24. Whether the candidate has resided in that Municipal District for 10 years or 10 days preceding qualification appears to be irrelevant. In fact, the constitutional provision does not specify whether the tax assessor must be a resident at the time of qualification or at the time of election. Mr. Archer demonstrated by clear and convincing evidence that he was a legal resident of the Fourth Municipal District. Mr. Archer testified that his Seventh | ^Street home is his residence and domicile and that he lives there with his family. At trial, Mr. Archer produced evidence verifying that he is registered to vote at the Seventh Street address, his driver’s license has his Seventh Street address on it, and he receives bills there. We find that Mr. Archer met the legal requirements to qualify as a candidate for tax assessor in the Fourth Municipal District of Orleans Parish.

Appellant further contends that Mr. Archer failed to meet the domiciliary and residency prerequisites outlined by LSA-Const. Art. VII, § 24 and La. R.S. 18:101, and as such Mr. Archer isn’t a qualified elector in the Fourth Municipal District. Appellant argues that because Mr. Archer took a homestead exemption on his General Haig property, which is located in the Second Municipal District, he is required to vote in that Municipal District, according to La. R.S. 18:101. He contends that this requirement to vote in the Second Municipal District prevents Mr. Archer from being a legal voter in the Fourth Municipal District, a requirement found in the qualification forms for tax assessor in the Fourth Municipal District.

La. R.S. 18:101 governs the qualifications for voter registration and provides:

For purposes of the laws governing voter registration and voting, “resident” means a citizen who resides in this state and in the parish, municipality, if any, and precinct in which he offers to register and vote, with an intention to reside there indefinitely. If a citizen resides at more than one place in the state with an intention to reside there indefinitely, he may register and vote only at one of the places at which he resides. However, if a person claims a homestead exemption, pursuant to Article VII, Section 20 of the Constitution of Louisiana, on one of the residences, he shall register and vote in the precinct in which that residence is located. For purposes of voter registration and voting, the residence of a married woman shall be determined in the same manner as is required for any other citizen. A citizen of this state shall not be or remain registered or vote in more than one place of residence at any one time, (emphasis added).

It is undisputed that in 2005 Mr. Archer took a homestead exemption on his property in the Second Municipal District. However, the record is void of any ^evidence that Mr. Archer is currently enjoying a homestead exemption on his General Haig Street property. At the very least, the record is inconclusive as to whether Mr. Archer is currently maintaining a homestead exemption on the General Haig property.

As the Supreme Court recently reminded us, “[t]he law favors candidacy and must be liberally construed so as to promote rather than defeat candidacy.” Landiak v. Richmond, 2005-0758, pp. 6-7 (La.3/30/05); 899 So.2d 535, 541. The Court continued, “[bjecause election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified.” Landiak, p. 7, 899 So.2d at 541. Simply stated, Appellant has not proven that Mr. Archer is currently disqualified from voting in the Fourth Municipal District. The trial court was not manifestly erroneous when it concluded that Mr. Archer met the domiciliary and residency requirements to qualify as a candidate for Orleans Parish Tax Assessor in the Fourth Municipal District.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED.

      . His General Haig Street residence was flooded during Hurricane Katrina and has been uninhabitable since.


author: CHARLES R. JONES, Judge. CANNIZZARO, J., BELSOME, J.,

text:
    LOUISIANA STATE BOARD OF ETHICS v. Kenneth P. GARRETT, Sr., et al.
    No. 2006-CA-0263.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 2006.

      Kathleen M. Allen, Alesia D. Mottle, R. Gray Sexton, Baton Rouge, Counsel for Plaintiff/Appellant.
    Kenneth P. Garrett, Sr., New Orleans, in Proper Person, Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS Jr., Judge LEON A. CANNIZZARO Jr., and Judge ROLAND L. BELSOME).
   CHARLES R. JONES, Judge.

| iThis matter results from the district court’s denial of the Louisiana State Board of Ethics’ (hereinafter “the Board”) request to disqualify the defendant, Kenneth P. Garrett, Sr., as a candidate for the office of Assessor of the Fifth District of Orleans Parish.

Mr. Garrett was a candidate for State Representative, District 102, in the April 6, 2002, election; thus, he was a “district office” level candidate. The Campaign Financial Disclosure Act (hereinafter the “CFDA”), pursuant to Louisiana Revised Statute 18:1511.1(A), requires candidates for district office to file reports concerning the financing of their campaigns at scheduled intervals prior to and after an election. Mr. Garrett was required to file a tenth day prior to the primary election (10-P) campaign finance disclosure report covering the period of February 26, 2002 through March 17, 2002, by March 27, 2002; an election day expenditure (EDE-P) campaign finance disclosure report by April 16, 2002; and a tenth day prior to the general election (10-G) campaign finance disclosure report covering the period of March 18, 2002 through April 14, 2002, by April 24, 2002.

LThe Board alleges that Mr. Garrett did not file any of the required disclosure reports until May 8, 2002. Mr. Garrett denies that his reports were filed late. According to the Order rendered by the Board, the reports were filed forty-two days late, twenty-two days late, and fourteen days late, respectively. Thus, the Board automatically assessed Mr. Garrett late fees of $60 per day pursuant to LSA— R.S. 18:1505.4 for each report. The Board also contends that it sent to Mr. Garrett a letter dated May 14, 2002, assessing late fees totaling $3,400. The Board further alleges that the late fee assessment letter stated that the candidate had thirty days in which to request a waiver of the late fees; thus, Mr. Garrett’s request for a waiver or payment of the late fees, according to the Board, was due by June 14, 2002. The Board contends that Mr. Garrett neither paid the late fees, nor did he request a waiver.

On April 21, 2004, the Board alleges that it sent Mr. Garrett notice via certified mail that the Board would conduct a due process hearing on July 8, 2004. The object of the hearing was to issue an order demanding payment of the $3,400 late fees. Mr. Garrett argues that he informed a Board attorney, Kathleen M. Allen, that he was unable to attend the scheduled hearing, and that Ms. Allen advised that she would be in touch with him. Mr. Garrett contends that Ms. Allen did not contact him until after a judgment was rendered against him. All parties concede that Mr. Garrett was not present for- the public hearing on July 8, 2004. Nevertheless, the Board issued an order demanding payment of the $3,400 late fees. Mr. Garrett did not pay the late fees and did not appeal the decision of the Board.

On December 14 2004, the Board filed a Petition for Rule to Show Cause in the Nineteenth Judicial District Court pursuant to LSA — R.S. 42:1135, seeking to | ^convert the Board’s order into' a judgment of the district court. The record reflects that on January 24, 2005, a hearing on the Board’s Rule to Show Cause was held, at which time the district court issued a verbal ruling in favor of the Board. The district court obviously found that the Board had sufficient evidence to support its claim that Mr. Garrett owed outstanding late fees for filing his campaign reports late.'

According to the Board, a copy of the judgment was mailed to Mr. Garrett on February 10, 2005, pursuant to Rule 9.5 of the Uniform Rules for District Courts. On March 22, 2005, a judgment was signed by the district court assessing late fees of $3,400 against Mr. Garrett, together with legal interest from the date of the Order, as well as his portion of the court costs. The Board further contends that it mailed a copy of the signed judgment to Mr. Garrett on March 29, 2005, along with a letter demanding payment. On November 18, 2005, the Board submitted the judgment to the Orleans Parish Clerk of Court to be recorded in the Orleans Parish Mortgage Records. To date, Mr. Garrett has not made any payments on the judgment. Additionally, Mr. Garrett did not file any appeals within the delays required by law; thus, the fees were made absolute.

On March 3, 2006, Mr. Garrett qualified to run for the office of the Assessor of the Fifth District of Orleans Parish by submitting his Notice of Candidacy to the office of co-defendant, the Honorable Kimberly Williamson Butler, Clerk of Criminal District Court for the Parish of Orleans. In his Notice of Candidacy, Mr. Garrett swore, under oath, that he did not owe any outstanding fines, fees, or Rpenalties pursuant to the CFDA, 'and he acknowledged that he was subject to the provisions of the CFDA.

On March 6, 2006, a member of the Board’s staff, Ms. Alesia Mottle, contacted Mr. Garrett upon receiving notice of his candidacy from the Secretary of State. Ms. Mottle alleges that she then advised Mr. Garrett of the outstanding judgment in the amount of $3,400 against him. Ms. Mottle further contends that she then informed Mr. Garrett that the Board could file an objection to his candidacy if the judgment was not satisfied. The Board admits in its brief that on March 7, 2006, Mr. Garrett submitted a request to the Board asking that they allow him to enter into a payment plan of one payment of $250, and $100 a month thereafter. The Board declined to enter into the payment plan and directed the staff to file an objection to Mr. Garrett’s candidacy.

On March 10, 2006, the Board filed an Objection to Candidacy of Kenneth P. Garrett, Sr., for Assessor of the Fifth District of Orleans in the April 22, 2006, primary election pursuant to LSA — R.S. 18:492. A hearing took place on March 14, 2006, in which the district court denied the Board’s Objection to Candidacy of Mr. Garrett. A written judgment was signed by the district court on March 15, 2006. This timely appeal follows.

In its sole assignment of error, the Board contends that the district court erred in denying its Objection to the Candidacy of Mr. Garrett for Assessor because Mr. Garrett falsely certified, on his Notice of Candidacy, that he did not owe any outstanding fines, when, as he admitted in open court, the fines had not been paid. We agree. There is no controlling precedent on this particular legal question; thus, it is before us res nova.

| sThe Louisiana Board of Ethics, in its capacity as the Supervisory Committee on Campaign Finance Disclosure, is statutorily charged with the duty of enforcing the CFDA pursuant to Louisiana Revised Statute 18:1511.1(A). The Board’s staff is authorized by Louisiana Revised Statute 42:1157 to automatically assess late fees for reports that are not timely filed according to the CFDA. LSA — R.S. 18:1505.4. The CFDA requires candidates for public office to file reports concerning the financing of their campaigns at scheduled intervals prior to and after an election. LSA— R.S. 18:1495.4(B) & 18:1532.

Louisiana Revised Statute 18:463 requires that a candidate certify at the time of qualifying that he does not owe any outstanding fines pursuant to the CFDA and provides in pertinent part:

§ 463. Notice of candidacy; financial statements; political advertising; penalties
A.(l)(a) A notice of candidacy shall be in writing and shall state the candidate’s name, the office he seeks, the address of his domicile, the parish, ward and precinct where he is registered to vote, and the political party, if any, with which he is registered as being affiliated. No candidate shall change or add his political party designation, for purposes of printing on the election ballot as required by R.S. 18:551(D), after he has qualified for the election.
(2) (a) The notice of candidacy also shall include a certificate, signed by the candidate, certifying that he has read the notice of his candidacy,..., that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act, and that all of the statements contained in it are true and correct. The | ficertificate shall be executed before a notary public or shall be witnessed by two persons who are registered to vote on the office the candidate seeks...
(b) for the purposes of this Paragraph, “outstanding fine, fee, or penalty” shall mean a fine, fee, or penalty equal to an amount of two hundred fifty dollars or more assessed by order of the Supervisory Committee on Campaign Finance Disclosure pursuant to the Campaign Finance Disclosure Act which has been converted into a court order for which all appeals have been exhausted or a judgment of a district court assessing civil penalties pursuant to the Campaign Finance Disclosure Act which has become executory pursuant to R.S. 18:1511.5. “Outstanding fine, fee, or penalty” shall not mean any fine, fee, or penalty which has been paid in full or for which the candidate is in compliance with a payment plan established in writing between the Supervisory Committee on Campaign Finance Disclosure and the candidate.

The purpose of the CFDA is to ensure that constituents are knowledgeable with respect to the financing of election campaigns. It is imperative that the electorate has such information in a timely manner. The CFDA ensures this purpose by setting forth filing deadlines prior to and subsequent to an election. Candidates failing to file reports by the deadlines are subject to the imposition of late fees for failing to meet the statutory deadlines imposed.

Act 896 of the 2004 Regular Legislative Session was enacted to specifically amend the Election Code to grant the Board the authority to object to the candidacy of a person on the grounds that an individual falsely certified on his 17notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the CFDA.

An “outstanding” fine, fee, or penalty is defined as a fine, fee, or penalty equal to an amount of $250 or more assessed by order of the Board pursuant to the CFDA that has been converted into a judgment of a district court. “Outstanding fine, fee or penalty” shall not mean any fine, fee or penalty which has been paid in full or for which the candidate is in compliance with a payment plan established in writing between the Board and the candidate. The record reflects that at the time of qualifying and at the time Mr. Garrett executed his Notice of Candidacy, he had not made any payments on the judgment, nor was he in compliance with a written payment plan agreed to by the Board.

Louisiana Revised Statute 18:491 specifically grants authority for the Board to object to a candidate’s candidacy and provides in pertinent part:

|„§ 491. Standing to object to candidacy
C. In addition to the persons with standing to bring an action objecting to candidacy as provided in Subsections A and B of this Section, the Supervisory Committee on Campaign Finance Disclosure may bring an action objecting to the candidacy of a person who qualified as a candidate in a primary election for an office on the grounds provided in R.S. 18:492(A)(5).

Louisiana Revised Statute 18:492 provides a ground for objection to a candidate’s false certification that he owes no outstanding fines pursuant to the CFDA and provides in pertinent part:

§ 492. Grounds for an objection to candidacy
A. An action objecting to the candidacy of a person who qualified as a candidate in a primary election shall be based on one or more of the following grounds:
(5) The defendant falsely certified on his notice of candidacy that he does not owe any outstanding fines, fees, or penalties pursuant to the Campaign Finance Disclosure Act as provided in R.S. 18:463(A)(2).

The person objecting to the candidacy of a person bears the burden of proof. Landiak v. Richmond, 05-0758 (La.3/24/05), 899 So.2d 535; Becker v. Dean, 03-2493 (La.9/18/03), 854 So.2d 864, 869; Russell v. Goldsby, 00-2595 (La.9/22/00); 780 So.2d 1048 Dixon v. Hughes, 587 So.2d 679, 680 (La.1991); Messer v. London, 438 So.2d 546 (La.1983). “Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified.” Id. However, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party. Id. Though the Louisiana Supreme Court has stated that it is a well-respected principle that the law favors candidacy, and must be liberally construed as to promote rather than defeat any one person’s candidacy, it also acknowledged this idea of a “shifting of the burden or proof.” Landiak, 899 So.2d 535. The Court stated:

Under Louisiana’s civil law, the ‘burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on | flWhich the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is not required to present any countervailing evidence. On the other hand, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party to present sufficient evidence to overcome the other party’s prima facie case. Id. at 543.

The Board asserts that the evidence it presented established a prima facie case that Mr. Garrett should be disqualified; thus, the burden shifted to Mr. Garrett to prove that he is qualified. We agree. We find that there is ample evidence that the Board notified Mr. Garrett that his reports were late, that he had outstanding late fees, and that a judgment had been taken against him for these fees. The record reflects that at the hearing of this matter before the district court, the Board presented the Notice of Candidacy, a certified true copy of the Board Order, and a certified true copy of the Judgment rendered against Mr. Garrett on March 22, 2005, in the amount of $3,400 plus legal interest and court costs. We find that this evidence coupled with Mr. Garrett’s own admission at the hearing that he owes the amounts stated, are sufficient to support the Board’s burden of proof in this matter. As such, we find that the district court was manifestly erroneous in refusing to grant the Board’s Objection to Mr. Garret’s Candidacy and thus, disqualifying Mr. Garrett from the election for Assessor.

The effect of sustaining an objection to candidacy is disqualification. Louisiana Revised Statute 18:494 provides in pertinent part:

A. Disqualification. When an objection to candidacy is sustained on the ground that the defendant failed to qualify for the primary election in the manner prescribed by law, that the defendant failed to qualify for the primary election within the time prescribed by law, or that the defendant does not meet the qualifications for the office he seeks, the final judgment shall disqualify the defendant as a | ^candidate in the primary election for the office for which he failed to qualify properly. LSA — R.S. 18:494.

While we find that Mr. Garrett should be disqualified from the election for his failure to pay the outstanding amounts due, we note that, as admitted by the Board, it did not object to the candidacy of a similarly situated party in a different election because that candidate paid all outstanding fines after he had filed a false affidavit in his Notice of Candidacy. Thus, it appears that the payment of money is more important to the Board than the qualifications of a candidate. We do not believe that this selective disqualification was intended by LSA — R.S. 18:494.

Nevertheless, we do find that the Board has established a prima facie case in the instant matter. Thus, Mr. Garrett should be disqualified as a candidate for Assessor.

DECREE

Accordingly, we REVERSE the judgment of the district court denying the Louisiana Board of Ethics’ Objection to the Candidacy of Kenneth P. Garrett, Sr. We find that Kenneth P. Garrett, Sr., is disqualified from running for the office of Assessor of the Fifth District Orleans Parish in the April 22, 2006 election.

REVERSED.

CANNIZZARO and BELSOME, 33., concur with reasons.

CANNIZZARO, J.,

Concurring.

|,I agree with the majority insofar as it reverses the judgment of the trial court and disqualifies Mr. Garrett as a candidate for the office of Assessor of the Fifth Municipal District of Orleans Parish. The record contains ample evidence that the Board of Ethics notified Mr. Garrett that his campaign finance reports were delinquent, that he had outstanding late fees, and that a judgment had been taken against him for these fees. This evidence along with Mr. Garrett’s own testimony that he owes these fees establishes the Board’s prima facie case.

Nonetheless, I believe the majority goes too far in its criticism of the Board. This case is the Board’s first challenge to a candidate’s candidacy pursuant to La. R.S. 18:492. In the absence of any objective evidence to show the Board has a history of applying the Campaign Finance Disclosure Act in an arbitrary, unfair, prejudicial or biased manner, this Court has no basis to speculate on the intent or motives of the Board.

BELSOME, J.,

Concurring.

Lit is unfortunate that the appellant was without counsel for these proceedings. One wonders whether the subjective selective enforcement of this form of statutory debt collection would pass constitutional muster. However, absent such a challenge we are forced to reverse the trial court. Therefore, I concur in the result.

      . LSA — R.S. 18:1483(7)(a).

      . LSA — R.S. 18:1484(1).

      . LSA — R.S. 18:1495.4 B(4).

      . LSA — R.S. 18:1532 A.

      . LSA — R.S. 18:1495.4 B(5).

      . We note that the Board, in its Petition and brief, incorrectly refers to the Honorable Kimberly Williamson Butler as "Commissioner of Elections for the Parish of Orleans."

      . Pablo Ortiz did not pay his outstanding late fine in full until February 14, 2006. Upon payment of all outstanding' amount due, Mr. Ortiz qualified as a candidate in the April 1, 2006 election for Chief of Police, City of Ken-ner.


author: PATRICIA RIVET MURRAY, Judge.

text:
    STATE of Louisiana v. Dontrell BROWN.
    No. 2005-KA-1090.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      Eddie J. Jordan, Jr., District Attorney, Autumn L. Cheramie, Assistant District Attorney, New Orleans, Counsel for Plain-tiffiAppellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   PATRICIA RIVET MURRAY, Judge.

11 This is a criminal appeal. The State is the appellant. The sole issue presented is whether the trial court erred in granting the motion to quash filed by the defendant, Dontrell Brown. Answering this question in the affirmative, we reverse.

STATEMENT OF THE CASE

On May 18, 2004, under case number 448-502, Mr. Brown was charged by bill of information with one count of simple burglary, a violation of La. R.S. 14:62. On December 20, 2004, the State entered a nolle prosequi. On January 12, 2005, the State reinstituted the charge under case number 455-222. On February 28, 2005, Mr. Brown filed a motion to quash the bill of information. On March 18, 2005, the trial court granted the motion.

STATEMENT OF THE FACTS

The facts of this case are unknown and not relevant.

I ¡¿DISCUSSION

As noted at the outset, the only issue raised in this appeal is whether the trial court erred when it granted Mr. Brown’s motion to quash the bill of information. The trial court gave no reasons at the time it ruled, nor does the transcript of the hearing reflect any argument by the parties.

On May 10, 2005, six weeks after it granted the motion to quash in the instant case, the trial court issued a per curiam referencing this and about twenty-five other cases, some of which were misdemeanors. In the per curiam, the court confirmed that it quashed the bills of information because the State dismissed the charges after the court had denied its motions to continue. The court further stated that none of the State’s motions for continuance conformed to La.C.Cr.P. art. 707, which requires a motion to continue to be in writing and filed seven days before trial.

In his written motion, Mr. Brown contended that his constitutional right to a speedy trial was denied when the State entered a nolle prosequi and then reinsti-tuted the charge. Mr. Brown averred that the State entered the nolle prosequi when the trial court denied the State’s motion to continue. In its brief, the State argues that it has the authority to dismiss and reinstitute criminal charges, and that its decision to do so in this case did not result in a violation of Mr. Brown’s constitutional right to a speedy tidal.

The State is correct that it has the authority to enter a nolle prosequi and reinstitute the charge. Both the Louisiana Supreme Court and this court have recognized this authority; however, the jurisprudence has also recognized that this authority may be overborne under the circumstances of any given case by the defendant’s constitutional right to a speedy trial. State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198; State v. Scott, 2004-1142 (La.App. 4 Cir. 7/27/05), 913 So.2d 843.

| ¡¡The State’s authority to dismiss any prosecution without the consent of the court is recognized in La.C.Cr. P. art. 691. Under La.C.Cr.P. art. 576, the State is authorized to reinstitute the charges within six months of dismissal. In this case, the State reinstituted the charges against Mr. Brown twenty-two days after the dismissal. The State, however, is required to show that the dismissal of the original prosecution was not for the purpose of avoiding the time limitations set by Article 578. Given that the charge at issue in this case is a non-capital felony (simple burglary), Article 578 required the State to bring Mr. Brown to trial within two years from the date of the bill of information. La. C.Cr. P. art. 578. The original bill of information was filed on May 18, 2004, and the motion to quash was granted on March 18, 2005, exactly ten months later. The State nolle prosequied the first bill of information seven months after the bill was filed. The State did not dismiss the first case in order to avoid the time limitations of Article 578. Thus, Mr. Brown’s statutory right to a speedy trial had not been violated at that point. The issue is thus whether the constitutional requirement was satisfied.

A defendant challenging the State’s nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial. State v. Henderson, 00-0511, p. 7 (La.App. 4 Cir. 12/13/00), 775 So.2d 1138, 1142. The proper procedural mechanism for challenging the State’s nolle prosequi and reinstitution of charges is a motion to quash. State v. Reaves, 376 So.2d 136, 137-38 (La.1979). “[A]n appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court’s discretion.” Love, 2000-3347 at pp. 9-10, 847 So.2d at 1206. This court has further noted that “the proper approach to the question of whether the defendant’s right to a speedy 14trial was violated is not merely a review of the dates and circumstances of the hearings, but an examination of the entire record in order to discern whether there was ‘palpable abuse’ on the part of the trial court in granting the motion to quash.” State v. Harris, 2003-0524 (La. App. 4 Cir. 9/10/03), 857 So.2d 16 (quoting Love, 2000-3347 at p. 14, 847 So.2d at 1209).

It is well settled that the standard for analyzing a defendant’s claim that his constitutional right to a speedy trial was violated is the four factor test enunciated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); to-wit: (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. The first factor — the length of the delay — is often referred to as the “triggering mechanism” because unless the delay is “presumptively prejudicial,” no further inquiry into the other Barker factors is required. Love, 2000-3347 at p. 16, 847 So.2d at 1210. Furthermore, the circumstances of each individual case determine the weight to be ascribed to the length of the delay and the reason for the delay. Reaves, 376 So.2d at 138. Because the complexity of the particular case must be taken into consideration, a delay that is acceptable in one case may not be acceptable in another. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984)(citing Barker, 407 U.S. at 531, 92 S.Ct. 2182). The manner of proof must also be considered, as must the gravity of the alleged crime. Id.

Analyzing Mr. Brown’s alleged speedy trial violation under the first Barker factor, we note the record reflects that ten months elapsed from the State’s filing of the first bill of information (May 18, 2004) until the granting of the defense’s motion to quash (March 18, 2005). In State v. Gray, 98-0347 (La.App. 4 Cir. 10/21/98), 766 So.2d 550, in which there was an eleven-month delay, this court suggested that the delay may not be |fipresumptively prejudicial as most prior cases had involved delays of more than one year. See State v. Leban, 611 So.2d 166 (La.App. 4 Cir.1992)(finding a sixteen-month delay was prejudicial); State v. Firshing, 624 So.2d 921 (La.App. 4 Cir.1993)(finding a seventeen-month delay was prejudicial). However, the Court evaluated the remaining Barker factors because of State v. Reaves, 376 So.2d 136 (La.1979), where the court had found a delay of three and one-half months in a misdemeanor case to be a violation of the defendant’s right to a speedy trial.

Considering that there was a delay of only ten months in this case, and it involved a felony and not a misdemeanor as in Reaves, it is certainly arguable that the delay was not presumptively prejudicial. A similar conclusion was reached by this Court in State v. Pham, 97-0459 (La.App. 4 Cir. 3/26/97), 692 So.2d 11, where the Court found that a nine-month delay for a defendant forced to travel from Houston to New Orleans after being charged with cheating at gaming did not merit the granting of a motion to quash. See also State v. Keller, 2003-0986 (La.App. 4 Cir. 10/1/03), 859 So.2d 743 (finding a six and one-half month delay between the filing of the first bill of information and the granting of the motion to quash the reinstituted bill was not presumptively prejudicial and that the trial court had abused its discretion when it granted the motion to quash).

Even assuming the delay in this case was presumptively prejudicial, a consideration of the other Barker factors does not preponderate in Mr. Brown’s favor.

|fiThe second factor relates to the reason for the delay. In that regard, we note that the procedural history of this particular case was as follows:

• On June 7, 2004, Mr. Brown, who had been released on bond on April 7, 2004, appeared and was arraigned.
• A motion hearing was set for June 21, 2004, but it was continued upon motion of the defense to July 30, 2004.
• On July 30, 2004, the pretrial motion hearing was held and the trial court found probable cause to substantiate the charge and set trial for September 9, 2004, apparently without objection by, the defense to the six-week delay.
• On September 9, 2004 and on October 7, 2004, the trial was continued upon joint motion of the State and the defense. The trial was rescheduled for December 17, 2004, again apparently with no objection by the defense to the two-month delay.
• On November 12, 2004, the trial court on its own motion rescheduled the trial from December 17th to December 20th because the court was going to be closed on December 17th. According to the November 12th minute entry, notice of the new trial date was to be sent to both the State and the defense.
• On December 20, 2004, when the parties appeared for trial, the State entered a nolle prosequi.
• On January 12, 2005, the State filed a new bill of information.
• Although arraignment was set for January 26, 2005, Mr. Brown did not appear. The trial court reset the arraignment for February 4, 2005, and directed that notice be sent to Mr. Brown by. mail and that notice also be sent to the surety.
• When Mr. Brown did not appear on February 4, 2004, the trial court again directed that notice be sent by mail to Mr. Brown. The court also scheduled a hearing on motions and the trial for February 28, 2005.
• On February 28, 2005, the defense counsel filed a motion to quash; Mr. Brown did not appear. The trial court set the motion to quash for hearing on March 14, 2005 and noted that Mr. Brown’s presence was not required.
• On March 18, 2005, the trial court granted the motion to quash.

As the above summary reflects, the first two of the four scheduled trial dates were continued upon joint motion of the parties. The third setting |7was continued by the trial court on its own motion. On the fourth setting, the State entered the nolle prosequi after the trial court denied its motion to continue. Notably, the record fails to show that either the defense or the State was present on November 12, 2004, when the trial court on its own motion reset the trial from December 17th to December 20th. Thus, it is unknown at what point the State learned that the trial date had been rescheduled. However, according to the trial court in its per curiam, it would have granted a continuance if the State had given a good reason, despite the State’s failure to comply with La.C.Cr.P. art. 707.

The third Barker factors relates to the defendant’s assertion of the right to speedy trial. The record does not reflect that Mr. Brown ever asserted his right to a speedy trial, either in writing or otherwise, before filing the motion to quash. Nor does the record reflect that Mr. Brown objected to any of the continuances.

The fourth, and final, Barker factor is the prejudice to the defendant caused by the delay. Mr. Brown had moved for and been granted a continuance of the pretrial motion hearing and joined in two continuances of the trial. He was out on bond throughout the proceedings. He only appeared in court a total of six times and never made a court appearance after the State entered a nolle prosequi and then reinstituted the charge. The mailing address to which notices were sent was a local address thus Mr. Brown was not required to travel to attend court. There is no indication in the record that Mr. Brown lost any witnesses or that the State gained a tactical advantage by dismissing the charge and reinstituting it later aside from obtaining a continuance of the trial to which the court felt it was not entitled.

In this case, the trial court’s decision granting the motion to quash was prompted by its desire to require the district attorney’s office to comply withpthe criminal procedural rules regarding continuances. We are required to give deference to the trial court’s decision to grant the motion to quash. Love, supra. However, taking into consideration the other factors, the minimal length of the delays in this case, and the harsh nature of the remedy, we conclude that, even giving deference to that decision, the trial court abused its discretion in granting the motion to quash. We thus find the State’s assignment of error has merit.

DECREE

For the foregoing reasons, the trial court’s ruling is reversed and the matter remanded for further proceedings.

REVERSED AND REMANDED.

LOVE, J., concurs in the result.

      . Because there was no trial, there is no transcript to show the underlying facts of the offense. However, the exhibit record from case number 448-502 contains a copy of the initial police report. According to the report, New Orleans Police Department officers responded to a burglar alarm at Walter L. Cohen High School. The officers discovered Mr. Brown in a first floor hallway holding a bag. Upon observing the officers, Mr. Brown dropped the bag and fled from the building. He was subsequently found hiding under a truck and was arrested for' simple burglary.

      . Ultimately in Gray, this Court reversed the trial court's decision granting the motion to quash, finding that the State had not attempted to gain a tactical advantage and that the defendants had failed to show sufficient prejudice. The Supreme Court granted writs and reversed this Court's decision on the grounds that the State had failed to timely move for an appeal from the trial court's granting of the motion to quash. State v. Gray, 98-2902 (La.5/7/99), 740 So.2d 1291.


author: TERRI F. LOVE, Judge.

text:
    Printess TATE, Jr. v. PROGRESSIVE SECURITY INSURANCE COMPANY, Gilbert Louis Brown, St. Paul Fire and Marine Insurance Company and Imperial Fire & Casualty Insurance Company.
    No. 2005-CA-0393.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 2006.

      Leon A. Aucoin, Law Offices of Leon A. Aucoin, Covington, Counsel for Plaintiff/Appellee.
    David J. Bourgeois, C. Michael Pfister, Nicole McDaniel Bowen, Duplass, Zwain, Bourgeois & Morton, Metairie, Counsel for Defendant/Appellant.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, Jr. and Judge LEON A. CANNIZZARO, Jr.)
   TERRI F. LOVE, Judge.

_JjSt. Paul Fire and Marine Insurance Company appeals the granting of summary judgment on the issue of Gilbert Brown’s designation as an independent contractor. On de novo review, we reverse the judgment of the trial court finding that genuine issues of material fact exist and remand for further proceedings in accordance with this opinion.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of a car accident, which occurred on March 19, 2002. Printess Tate (“Mr. Tate”) alleges that he was operating a 1987 International Truck owned by his employer, Diamond Food Distributors, in a southerly direction on Peters Road in the Parish of Jefferson on the date of the accident. As Mr. Tate was stopped in traffic at the intersection of Peters Road and Lester Street, he was allegedly struck by a truck pulling a trailer owned and operated by Gilbert Brown (“Mr. Brown”). As a result of the accident, Mr. Tate was pushed into the rear of a 1991 Oldsmobile owned and operated by Lynn ^Williams. Following the accident, Mr. Brown contacted Durr Heavy Construction, L.L.C. (“Durr”), for whom he was working for at the time of the accident, to notify a representative of Durr that, he had been in an accident.

Durr’s employee, Kent Cheramie, arrived at the scene shortly after the accident and assisted Mr. Brown in unloading the sand he was transporting.

As a result of the accident and injuries sustained, Mr. Tate filed suit against Mr. Brown and his insurer, Progressive Security Insurance Company; St. Paul Fire and Marine Insurance Company (“St. Paul”), insurer for Diamond Food Distributors; and Mr. Brown’s uninsured/underinsured motorist carrier, Imperial Fire and Casualty Company. Mr. Tate later filed amending and supplemental petitions alleging that at the time of the accident, Mr. Brown was in the course and scope of his employment with Durr. Thus, he added Durr and its insurer, The Gray Insurance Company, to the litigation alleging they are vicariously liable for Mr. Brown as his employer.

Durr filed a Motion for Summary Judgment asserting that Mr. Brown is an independent contractor and therefore not an employee of Durr. St. Paul filed a Cross-Motion for Summary Judgment asserting that the evidence established that Mr. Brown is an employee of Durr.

The trial court granted Durr’s motion for summary judgment, finding that Mr. Brown was an independent contractor. Its reasons for judgment stated in pertinent part:

Gilbert Brown owned the vehicle that was operated by him as “Gilbert Brown Truck Service” on the date of the accident. He was paid by the load for any deliveries he made for Durr and did not receive benefits from Durr. Neither did Durr reimburse Brown for any expenses. On | ^occasion, Brown would call Durr to inquire whether there was any work, and if he wanted to work, he went to Durr to get the ticket and information on the loads to be hauled. Durr did not tell Brown what route to take. Brown was free to work for other companies or individuals. Durr only used Mr. Brown when there was a need for additional haulers. Durr sent tax forms to Brown, but Brown handled his own taxes. Brown maintained his own auto insurance.

STANDARD OF REVIEW

Summary judgments are reviewed de novo on appeal whereby the appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. Marcades v. Cleanerama, Inc., 02-0357, p. 3 (La.App. 4 Cir. 9/25/02), 831 So.2d 288, 289.

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512. p. 27 (La.7/5/94), 639 So.2d 730, 751. A genuine issue is one as to which reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Id.

The burden of proof in a motion for summary judgment is on the movant. However, if the movant will not bear the burden of proof at trial, then the movant’s burden only requires her to point out the absence of factual support for one or more of the essential elements. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

RDURR’S ARGUMENTS AND EVIDENCE

In support of its motion for summary judgment, Durr submitted the affidavit of James E. Turner who stated:

1) I am an authorized representative of Durr Heavy Construction, L.L.C. in the capacity of operations manager;
2) I am familiar with the work performed by Gilbert L. Brown and have personal knowledge of the facts stated in this Affidavit;
3) Durr Heavy Construction, L.L.C. has its own employees and trucks. However, on occasion, Durr Heavy Construction, L.L.C. has a need for additional trucks and persons to haul loads for it. On some of these occasions, Durr Heavy Construction, L.L.C. has used the services of Gilbert L. Brown d/b/a Gilbert Brown Truck Service;
4) Gilbert Brown is paid by the load, and Durr Heavy Construction, L.L.C. does not withhold any taxes or provide any benefits to Mr. Brown; and,
5) At the end of the year, Durr Heavy Construction, L.L.C. sends a 1099 tax form to Gilbert L. Brown for the amounts paid to him during the year.

Durr argued that the Affidavit of Mr. Turner and Mr. Brown’s deposition testimony established that Mr. Brown was not an employee of Durr as Durr maintains its own employees and equipment and only used the services of Mr. Brown when additional equipment and haulers were needed. Moreover, Mr. Brown was paid by the load, he did not receive any reimbursement of expenses, he received no benefits, no taxes were withheld from his pay, Mr. Brown was not required to work exclusively for Durr and he was allowed to choose his own route when making hauls.

ST. PAUL’S ARGUMENTS AND EVIDENCE

In response, St. Paul filed a cross-motion for Summary Judgment wherein it Issubmitted the deposition testimonies of Mr. Brown and Mr. Turner asserting that there exists no genuine issue of material fact that Mr. Brown was an employee of Durr.

MR. TURNER’S TESTIMONY

Mr. Turner’s affidavit states that Durr occasionally used Mr. Brown’s services and he was not required to work exclusively for Durr. However, in his deposition, Mr. Turner testified that during the five years preceding the accident, Mr. Brown was one of the drivers that was utilized by Durr “virtually more or less every day”. Further, Mr. Turner recalled Mr. Brown working for Durr for at least fifteen to twenty years prior to the accident. According to Mr. Turner, Mr. Brown did not have a written contract but Durr contracted with him orally by the load. Either he or Mr. Cheramie could terminate Mr. Brown for any reason. Mr. Turner indicated that Mr. Brown would “probably follow any route assigned to him by Durr”.

MR. BROWN’S DEPOSITION TESTIMONY

Mr. Brown testified that he worked exclusively for Durr for at least seven years prior to the accident and had not worked for any other company but Durr since March 19, 2002. Mr. Brown testified that as “his supervisor”, Mr. Cheramie would designate his route and would further designate specific locations for his deliveries.

| KDISTINCTION BETWEEN INDEPENDENT CONTRACTOR AND EMPLOYEE

“The distinction between employee and independent contractor status is a factual determination that must be decided on a case-by-case basis, taking into consideration the total economic relationship between the parties and the various factors weighing either in favor of or against an employer-employee relationship.” Elmore v. Kelly, 39,800, pp. 4-5 (La.App. 2 Cir. 7/29/05), 909 So.2d 36, 38. In contrast, to an independent contractor relationship, “[t]he essence of the employer-employee relationship is the right to control.” Hillman v. Comnu-Care, Inc., 01-1140, p. 8 (La.1/15/02), 805 So.2d 1157, 1162. The four primary factors evidencing the right to control are: 1) selection and engagement, 2) payment of wages, 3) power of dismissal and 4) power of control. Id. “None of these factors alone is determinative of an employer/employee relationship. Rather, the totality of circumstances must be considered.” Harrington v. Hebert, 00-1548, p. 7 (La.App. 3 Cir. 5/23/01), 789 So.2d 649, 653 (citations omitted).

The Supreme Court enumerated several factors for courts to consider in determining independent contractor status in Morales v. Davis Bros. Construction Co., 94-0902 p. 8 (La.App. 4 Cir. 12/15/94), 647 So.2d 1302, 1305: 1) whether there is a valid contract between the parties; 2) whether the work being done is of an independent nature such that the contractor may employ non-exclusive means in accomplishing it; 3) whether the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being 17subject to the control and direction of the principal; 4) whether there is a specific price for the overall undertaking; and 5) whether a specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.

In Murray v. Option Care, 00-2065 (La.App. 4 Cir. 11/21/01), 801 So.2d 1203, the plaintiff, Mr. Murray hired Optioncare to adjust and refill his morphine pump. Optioncare hired Nurse Rusich to assist with the care of Mr. Murray. At some point during the care, Mr. Murray suffered an overdose. Mr. Murray filed suit against Nurse Rusich and Optioncare, alleging that Nurse Rusich was an employee of Optioncare and, therefore, they were vicariously liable for Nurse Rusich’s negligence. Optioncare argued that Nurse Rusich was an independent contractor and filed a motion for summary judgment, which was granted by the trial court.

This Court reversed the granting of the motion for summary judgment stating:

Optioncare argues that Nurse Rusich was an independent contractor because it gave Nurse Rusich a Form 1099 rather than a Form W-2, because it paid her out of its operations account rather than its payroll account, because it paid Nurse Rusich per visit rather than paying her a salary and because it gave her no vacation. However, while all of these facts are consistent with Optioncare’s theory that Nurse Rusich was an independent contractor, they are not necessarily determinative.
Instead, the single most important factor in determining whether there is an employment relationship versus an independent contractor relationship is the right of the employer to control the work of the employee. In the present case, Nurse Rusich testified in her Isdeposition... to the effect that Option-care did have the right to control her work. It is not entirely clear how much Optioncare actually exercised its right to control Nurse Rusich’s work and Option-care cites some testimony by her to the effect that Optioncare did not actually exercise much control over various aspects of her work. However, it is the right of the employer to exercise such control, regardless of the actual exercise thereof, which is most important.
Based upon the summary judgment record, particularly the transcript of Nurse Rusich’s deposition, we must conclude that there is a genuine issue of fact as to whether Nurse Rusich was an employee or independent contractor of Optioncare.

Murray, 00-2065. pp. 2-3, 801 So.2d at 1204. [internal citations omitted; emphasis in original]

Similarly, in the case sub judice, Durr provided evidence that Mr. Brown was paid by the load, did not receive reimbursement of any expenses, did not receive any benefits, had no taxes withheld from his pay, Durr did not have an exclusive arrangement with him, and he was allowed to choose his own route when making the hauls. Conversely, Mr. Brown stated in his deposition that Durr had the option of designating his route if they chose to exercise the option.

St. Paul established that there was no written contract between Mr. Brown and Durr, Mr. Brown worked exclusively for Durr for seven years, Mr. Brown was directed by Durr as to the location and time to deliver each load, and Durr could terminate Mr. Brown with or without cause at any time.

After reviewing the record de novo, we conclude that the evidence establishes genuine issues of material fact. The trial court was presented with conflicting evidence regarding Mr. Brown’s status with Durr. When the evidence | presented is subject to different interpretations and the trier of fact must weigh contradictory-testimony and assess witness credibility on a material fact, summary judgment is not proper. Johnson v. Government Employees Insurance Company, 05-476, p. 3 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 455.

DECREE

For the reasons outlined above, we reverse the granting of summary judgment and remand for further proceedings in conformity with this opinion.

REVERSED AND REMANDED.

      . Lynn Williams is not a part of this appeal.