author: DAVID S. GORBATY, Judge.

text:
    Andrew F. MANASCO v. NATIONAL RAILROAD PASSENGER CORPORATION.
    No. 2006-CA-0976.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 29, 2006.

      William J. Billeaud, Benjamin B. Saunders, Nicholas B. Castrogiovanni, Joseph M. Miller, Davis * Saunders, PLC, Mande-ville, LA, For PlaintifflAppellant.
    Dow Michael Edwards, Timothy F. Daniels, David S. Kelly, Lemle & Kelleher, L.L.P., New Orleans, LA, for Defendant/Appellee.
    Court composed of MAX N. TOBIAS, JR., DAVID S. GORBATY, and EDWIN A. LOMBARD, Judges.
   DAVID S. GORBATY, Judge.

11Andrew F. Manasco appeals a summary judgment granted in favor of defendant, National Railroad Passenger Corporation. For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

FACTS:

Mr. Manasco was employed by National Railroad Passenger Corporation (hereinafter “Amtrak”) at the Union Passenger Terminal in New Orleans. According to Mr. Manasco, he first injured himself on the job on September 28, 2000, when he injured his lower back while unloading a mail car loaded with stacks of magazines. He claims that the hydraulic pallet jack he used to move the pallets was defective, and that his employer was aware that the pallet jack was defective, but did not repair or replace it. Because of the defective nature of the pallet jack, he was forced to shift the jack from side to side while pulling it backwards. As he was backing up, he slipped on a piece of paper on the floor behind him, fell and injured his back.

[2Mr. Manasco filed suit on October 16, 2002, alleging only an injury to his left shoulder while at work on March 22, 2002. He amended his suit on April 17, 2003, adding a claim for the alleged injury to his lower back sustained on September 28, 2000.

On July 11, 2005, Amtrak filed a Motion for Summary Judgment. Amtrak argued that its rules required a baggage handler to inspect the sides of a pallet before attempting to move it to prevent pallets from becoming jammed, and, further, required that a baggage handler inspect the ground and floor area for contraband that could cause a slip or fall while working. Thus, assuming the jack was defective, Mr. Manasco’s injury was not caused by the defective jack, but rather by his own negligence in not continually inspecting his surroundings. Because the alleged injury was caused solely by Mr. Manasco’s negligence, Amtrak asserts he is barred from recovery.

In his Memorandum in Opposition, Mr. Manasco urges that FELA imposes liability upon railroad employers if the railroad’s negligence plays any part in the employee’s injury. If the employee’s actions are deemed negligent, but the employer’s actions also contributed to the injury, contributory negligence principles apply.

PROCEDURAL HISTORY:

On July 29, 2005, the district court entertained two motions filed by defendant/appellee, Amtrak, a motion to continue trial and a motion for summary judgment. The transcript of July 29, 2005, indicates that the trial court granted both the motion to continue and the motion for summary judgment. The record further indicates that the trial court subsequently signed a judgment August 11, 2005, granting Amtrak’s motion to continue. This judgment was entered on the | record on August 16, 2005. The judgment makes no mention of the motion for summary judgment.

On August 12, 2005, Mr. Manasco filed a motion for reconsideration and/or motion for a new trial. On August 15, 2005, the trial court rendered a Judgment and Reasons for Judgment denying Mr. Manasco’s motion for new trial. The opening paragraph of the Judgment references that the trial court granted summary judgment in favor of Amtrak on July 29, 2005. However, the record does not indicate that a summary judgment to that effect was signed prior to Mr. Manasco requesting a new trial.

Mr. Manasco filed his petition for appeal October 5, 2005. Following the Petition for Appeal in the record is a judgment signed by the trial court on February 24, 2006, and entered on the record February 27, 2006. This Court initially ordered Mr. Manasco to show cause why his appeal should not be dismissed for failure to file a Petition for Appeal following the signing of the judgment in February.

After considering the briefs and argument on the jurisdiction issue, this Court finds that the signing of the February 24, 2006, judgment prior to lodging of the record cured any jurisdictional defect. See Overmier v. Traylor, 475 So.2d 1094 (La.1985).

DISCUSSION:

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.44/11/94), 634 So.2d 1180, 1183. See also Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 231. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions. Two Feathers Enterprises v. First Nat’l Bank of Commerce, 98-0465, p. 3 (La.App. 4 Cir. 10/14/98), 720 So.2d 398, 400.

A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966. If the court finds that a genuine issue of material fact exists, summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact,” La.Code Civ. Proc. art. 966 C. Summary judgment should then be granted.

Mr. Manasco’s case is filed pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51, et seq., which is the exclusive remedy for railroad workers injured on the job as the result of negligence on the part of their employer. It provides the sole rights for recovery. Railroad workers are not subject to state workers’ compensation laws.

Under the FELA, the railroad industry has a non-delegable duty to provide its employees with a reasonably safe place to work. Bailey v. Central Vermont Ry. 5Inc., 319 U.S. 350, 352, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943). Specifically, Section 51 of the FELA provides in part: Every common carrier by railroad while engaging in commerce between any of the several States ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... for such injury or death resulting in whole or in part from the negligence of any of he officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

To recover pursuant to the FELA, a plaintiff must show that 1) he was injured in the scope of his employment, 2) which employment is in furtherance of interstate commerce, 3) his employer was negligent, and 4) his employer’s negligence played some part in causing the injury for which he seeks compensation under the FELA. Green v. River Terminal Ry. Co., 763 F.2d 805, 808 (6 Cir.1985).

Amtrak argues that “there is no question in this case that the condition of the pallet jack is not causally related to plaintiffs slipping on a scrap of paper or to the pallet’s having gotten jammed against another pallet.” To support its argument, Amtrak cites McDonald v. Northeast Illinois Regional, 249 F.Supp.2d 1051 (N.D.Ill., E.Div.2003). In McDonald, plaintiff injured his ankle when he stepped off of a concrete apron covered in snow while attempting to dislodge a forklift stuck in the snow. He alleged two separate acts of negligence by his employer: 1) failure to remove excessive snow from the work area, and 2) improper use of a forklift. The court found that there were material issues of fact as to whether the employer had breached its duty of care to provide a reasonably safe place to work in failing to [¿remove the snow. However, the court found that plaintiff had failed to produce any evidence that the use of the forklift was in any way connected to his injury.

We find the facts of this case different from those in McDonald, supra. Mr. Manasco and his co-worker, John Lott, both testified that they had reported the defective pallet jack to their superiors on numerous occasions. Mr. Manasco further testified that it was extremely difficult to pull and maneuver the jack because of the defects in the hydraulic mechanism. He also testified that the pallets of magazines he was attempting to unload were jammed tightly into the mail car, making it very difficult to unload the pallets. The fact that he had successfully unloaded several pallets prior to the fall does not suggest that the task was easy, nor does it suggest that the jack played no role in his slipping on the piece of paper. Mr. Ma-nasco testified that he inspected the floor and itemized the number of pallets he had to unload before he began. He presumed that the paper he slipped on fell off of one of the earlier unloaded pallets.

Mr. Manasco also testified that he and Mr. Lott were the only two employees left at the yard at the time of this incident, other than the conductor who was not allowed to come onto the track. They had been instructed to get the mail car unloaded so that the train could “go to the back.”

To reach the conclusion that the pallet jack played no part in Mr. Manas-co’s fall, we would have to totally discount his testimony about the difficulty he had in using the pallet jack to unload the pallets. He testified that the pallets were jammed tightly together, making it difficult to see between the pallets. He had to |7jerk and pull on the pallet jack in order to lift the pallet from its place of rest to the door of the car. Contrary to counsel for Amtrak’s statements at oral argument, Mr. Manasco did not testify that he was smoothly pulling the jack at the time he slipped. Rather, he had to pull the jack “from side to side” while backing up. On summary judgment, credibility is not to be weighed; rather, testimony is to be accepted as true. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750; Granier v. Avondale Indus., Inc., 05-1085, p. 4 (La.App. 4 Cir. 8/16/06), 940 So.2d 678, 681.

We are cognizant that the FELA does not make the employer the insurer of the safety of its employees while they are on duty. Atlantic Coast Line R.R. Co. v. Dixon, 189 F.2d 525, 526-27 (5th Cir.1951). The employer is not held to an absolute responsibility for the reasonably safe condition of the place, tools and appliances, but only to the duty of exercising reasonable care to that end, the degree of care being commensurate with the danger reasonably to be anticipated. Id., citing Baltimore & O.S.W.R. Co. v. Carroll, 280 U.S. 491, 50 S.Ct. 182, 74 L.Ed. 566 (1930). Likewise, an employee is not the insurer of his own safety. An employee must exercise reasonable and ordinary care for his own safety. Dixon, 189 F.2d at 527.

Based on Mr. Manasco’s and Mr. Lott’s testimony regarding reporting the defective jack to their superiors, the work conditions at the time of the alleged accident, and the circumstances surrounding the alleged injury, we find that there exist genuine issues of material fact as to whether the defective pallet jack was causally related to Mr. Manasco’s fall and subsequent injury, whether Amtrak [ Sexercised reasonable and ordinary care in not replacing the defective jack, and whether Mr. Manasco exercised reasonable and ordinary care when inspecting his work surroundings.

For the foregoing reasons, we reverse the judgment of the trial court and remand this matter for further proceedings.

REVERSED AND REMANDED.

      . In pleadings before the lower court, Mr. Manasco alleged that he injured his shoulder at work on February 26, 2002. At oral argument, counsel for Mr. Manasco dismissed the claim for the shoulder injury. We will therefore omit any discussion of the shoulder injury-

      . Delays for filing had been suspended by the Legislature, thus the Petition for Appeal was timely.


source: Caselaw Access Project

author: SAUNDERS, Judge.

license: Public Domain

text:
    A & B BOLT & SUPPLY, INC. v. David S. DAWES, et al.
    No. CA 06-1003.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 17, 2007.
    Rehearing Denied Feb. 28, 2007.

      H. Mark Adams, Jennifer Lynn Anderson, Alia S. Zohur Jones, New Orleans, LA, for Defendants/Appellees, David S. Dawes Whitco Supply, L.L.C.
    Alan K. Breaud, Timothy Wayne Bas-den, Breaud & Lemoine, Lafayette, LA, for Plaintiff/Appellant, A & B Bolt & Supply, Inc.
    Jeffrey M. Baudier, Attorney at Law, Lafayette, LA, for Defendants/Appellees, David S. Dawes Whitco Supply, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   SAUNDERS, Judge.

| ¶ Employer, A & B Bolt & Supply, Inc. (A & B), filed a petition for temporary restraining order (TRO), preliminary and permanent injunction, and damages against former employee, David S. Dawes (Dawes), and his business, Whitco Supply, L.L.C. (Whitco), for allegedly violating a covenant not to compete, which was granted. After the TRO was subsequently dissolved, employee and his business filed a motion for judgment on the pleadings.

The trial court granted the motion and dismissed the action with prejudice basing its ruling on reasoning that the covenant not to compete was never effected because the agreement between the parties expired by its own terms before employee resigned.

The Third Circuit reversed this ruling by reasoning that the trial court did not consider the effect of other provisions of the agreement indicating that the parties intended the covenant not to compete to be effective regardless of whether employee’s employment was terminated under the terms of the agreement or whether the agreement simply expired under its own terms.

On remand the employee filed a motion for summary judgment. The motion was granted by the trial court and employer’s case was again dismissed with prejudice. The trial court reasoned that the covenant not to compete had expired because the agreement between the parties expired by its own terms before employee resigned.

Employer appealed. We reverse.

FACTS AND PROCEDURAL HISTORY

David S. Dawes and other family members were once the owners of A & B. After successfully developing the business, the Dawes family sold their interest in | gA & B to Industrial Holdings, Inc., which sold it to T-3 Energy Services, Inc. (T-3), the present owner. Dawes signed an Employment Agreement (Agreement) with T-3 that became effective May 7, 2001. The Agreement had an initial term of two years and provided for two renewable terms of one year each. The Agreement also had a Covenant Not to Compete that prevented Dawes from competing with A & B for one year after his cessation of employment with A & B. The Agreement expired on May 7, 2003, but Dawes remained with T-3 as an “at will” employee until July 1, 2003, when he resigned. At that time, he formed his own company, Whitco, which conducts the same type of business that A & B conducts.

On July 23, 2003, A & B filed a Petition for Temporary Restraining Order, Preliminary and Permanent Injunction and Damages, which was granted by the trial court. The TRO was dissolved after a hearing on a motion filed by Dawes and Whitco. A & B filed a writ application with this court seeking to reverse the action of the trial court. The application was denied in an unpublished opinion. See A & B Bolt & Supply, Inc. v. Dawes, 03-1073 (La.App. 3 Cir. 8/15/03). A & B’s writ application to the supreme court was also denied. See A & B Bolt & Supply, Inc. v. Dawes, 03-2411 (La.9/5/03), 852 So.2d 1034.

Dawes and WZhitco then filed a motion for judgment on the pleadings or, alternatively, to clarify and/or correct judgment. After a hearing, the trial court granted the motion and dismissed the action with prejudice.

A & B appealed the trial court’s grant of a motion for judgment on the pleadings and the trial court was reversed. See A & B Bolt & Supply, Inc. v. Dawes, 04-0699 (La.App. 3 Cir. 11/10/04), 888 So.2d 1023, writ denied, 05-265 (La.4/1/05), 897 So.2d 609.

|oOn remand, Dawes and Whitco filed a motion for summary judgment. The trial court granted this motion reasoning that the covenant not to compete had expired because the agreement between the parties expired by its own terms before Dawes resigned. A & B appealed this ruling. We reverse.

ASSIGNMENT OF ERROR:

1. Did the trial court err in granting summary judgment in favor of Dawes and Whitco on the basis that all obligations under the Agreement, including the covenant not to compete, ended at the expiration of the two year term of employment?

ASSIGNMENT OF ERROR # 1:

A & B contends that the trial court erred in granting summary judgment dismissing its claims against the defendants on the basis that all obligations under the agreement, including the covenant not to compete, ended at the expiration of the two year term of employment. We agree.

Appellate courts conduct a de novo review of rulings - on motions for summary judgment. “It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Alfred Palma, Inc., v. Crane Servs. Inc., 03-0614, p. 3 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 (quoting Shelton v. 700/Associates, 01-0587, p. 5 (La.10/16/01), 798 So.2d 60, 65); La.Code Civ.P. art. 966.

“If the words of a contact are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the ‘four corners’ of the document and no further interpretation can occur in search of the parties’ intent.” Hebert v. Insurance Center, 4Inc., 97-298, p. 5 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, writ denied 98-353 (La.3/27/98), 716 So.2d 888, La.Civ.Code art.2046.

The Covenant Not to Compete is found in Section 3.3 of the Agreement and is as follows: (emphasis supplied)

Employee hereby agrees that:

3.3.1 Business of Company. The business of the Company is to distribute fastener related products, pipes, valves, fittings and other supplies to companies in the oil and gas and industrial fabrication industries (the “Business”).
3.3.2 During the Term of Employment and for one (1) year following the termination or resignation of Employee’s employment under this Agreement (the “Non-Compete Period”), he will not in association with or as an officer principal, member, advisor, agent, partner, director, stockholder, employee or consultant of any corporation (or sub-unit, in the case of a diversified business) or other enterprise, entity or association that competes with the Business of the Employer in the Territory (as defined in Section 3.3.4 below), work on acquisition or development of any line of business, property or project in with the Employer is then involved or has worked with or evaluated in the last year; and (Emphasis added)
3.3.3 During the Term of Employment and during the Non-Compete Period, he will not solicit or induce any person who is or was employed by the Employer at any time during such term or period (A) to interfere with the activities or Business of the Employer, or employ any such person in a business or enterprise which competes with the Business of the Employer in the Territory. In addition, during the Term of Employment and during the Non-Compete Period, he will not (C) request any present or future customer or supplier of the Employer to curtail or cancel its business with Employer in the Territory, or (D) unless otherwise required by law, disclose to any person, firm or corporation any details or organization or business affairs of the Employer, any names of past or present customers of the Employer or any other non-public information concerning the Employer.

The pertinent part of Section 9.2 of the agreement is as follows:

Any termination of Employee’s employment and any expiration of the Term of Employment under this Agreement shall not affect the continuing operation and effect of Section 3 hereof or this Section 9, which shall continue in full force and effect with respect to employer |Rand Employee and their respective heirs, executors, personal representatives, successors or permitted assigns.

The trial court found that when the term of the contract ended both parties were free to do whatever they wished. The court reasoned that if A & B did not have to continue honoring their part of the contract, then Dawes no longer had to honor any part of the contact he signed. The trial court reached this conclusion even in light of Section 9.2 above. The court made this conclusion because it reasoned that Section 9.2 would only have effect if the contract was still in effect. We disagree.

Section 3.3.2 provides that Dawes may not compete with A & B “During the Term of Employment and for one (1) year following the termination or resignation of Employee’s employment under this Agreement.” His employment with A & B under this Agreement” ended May 7, 2003, when the contract expired and Dawes became an “at will” employee. Accordingly, under section 3.3.2, Dawes was not allowed to compete until May 7, 2004, one year from the day that his employment “under this Agreement” was concluded. The fact that Dawes continued to work as an “at will” employee does not change the terms of the agreement he signed and certainly does not relieve Dawes from his contractual obligation to refrain from competing with A & B for a period of one year after his employment ended “under this Agreement.”.

The trial court reasoned that Dawes’ July 1, 2003, resignation did not trigger the non-compete obligation as the resignation was from Dawes’ status as an “at will” employee. It is true that Dawes’ July resignation did not trigger the non-compete obligation, but it is equally true that the non-compete obligation was triggered by the expiration of the Agreement on May 7, 2003.

[fiThis court found in A & B Bolt and Supply, Inc., 888 So.2d at 1026 that “This language [Section 9.2] indicates that the parties intended the Covenant Not to Compete to be effective regardless of whether Dawes’ employment was terminated under the terms of the Agreement or whether the Agreement simply expired under its own terms.” We see nothing in the record to change how this court has already ruled.

As such, the ruling of the trial court granting Dawes’ and Whitco’s motion for summary judgment is reversed and this case is remanded for further proceedings not inconsistent with this ruling.

CONCLUSION

The judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings. The costs of this appeal are assessed to David S. Dawes and Whitco Supply, L.L.C.

REVERSED.


author: CARAWAY, J.

text:
    LOUISIANA SAFETY ASSOCIATION OF TIMBERMEN SELFINSURERS FUND, Plaintiff-Appellee v. DANI'S CATFISH & STEAK HOUSE, INC., Defendant-Appellant.
    No. 41,809-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.
    Rehearing Denied Feb. 22, 2007.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Teresa Culpepper Carroll, Jonesboro, for Appellant.
    Farrar & Farrar, by Todd L. Farrar, Pineville, for Appellee.
    Before CARAWAY, DREW and SEXTON (Pro Tempore), JJ.
   CARAWAY, J.

| ^n the trial of this collection suit, the defendant objected to the introduction into evidence of certain documents contained in the plaintiffs file regarding the defendant’s alleged delinquency. The trial court allowed the documents into evidence and granted judgment in favor of the plaintiff. The defendant appeals and re-urges its objection to the evidence. Finding the documents’ introduction into evidence appropriate, we affirm the trial court’s judgment.

Facts

Plaintiff, Louisiana Safety Association of Timbermen-Self Insurance Fund (hereinafter the “Fund”), filed suit against defendant, Dani’s Catfish & Steakhouse, Inc. (hereinafter “DC & S”), in Winnfield City Court asserting that DC & S owed the Fund for workers’ compensation insurance premiums for 1996 and 1997. The total sought was $1,698.46, together with interest and attorney’s fees.

At trial, over the objection of DC <& S, the Fund introduced business documents identified by the Fund’s collection manager, James Parker. He testified that in his position as collections manager, he was familiar with the file of DC & S and that he also had experience as an independent auditor hired by the Fund before he became the Fund’s employee in 2001. The disputed documents introduced through his testimony are: (1) DC & S’s 1995 application and agreement for membership for self-insurance coverage with the Fund; (2) an audit of DC & S’s payroll for 1996, performed for the Fund by Louisiana Audit Services; and (3) final audit billings sent to DC & S [?,by the Fund. The court admitted these documents into evidence pursuant to the business records exception to the hearsay rule.

From these records in the Fund’s file for DC & S, Parker testified that the 1996 audit showed that DC & S had underpaid its premiums in the amount of $368. After DC & S became further delinquent in 1997, the coverage ceased in May of that year. In the absence of an audit for the coverage period in 1997, the Fund’s premium that was charged to DC & S was prorated for five months of coverage based upon the 1996 audited payroll amounts. Parker testified that DC & S owed $1,330.46 in premiums for the five months of coverage for 1997.

After trial, the court gave written reasons for judgment stating that even absent the introduction of the disputed evidence, the plaintiff proved a prima facie case. The court also rejected the only defense offered by DC & S pertaining to workers’ compensation coverage of one of DC & S’s employees, Gwen Plunkett. The court then awarded judgment as prayed for by the Fund. DC & S now appeals arguing that the business documents should have been excluded from evidence as hearsay and that premiums charged for Gwen Plunkett were improper.

Discussion

The relevant articles of the Code of Evidence for resolution of this controversy are as follows:

Art. 801. Definitions.

A. Statement. A “statement” is:
(1) An oral or written assertion; or
(2) Nonverbal conduct of a person, if it is intended by him as an assertion. |3B. Declarant. A “declarant” is a person who makes a statement.
C. Hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the present trial or
hearing, offered in evidence to prove the truth of the matter asserted.
D. Statements which are not hearsay. A statement is not hearsay if:
⅝ ⅜ ⅜ ⅜ ⅜
(2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is:
(a) His own statement, in either his individual or a representative capacity;
(b) A statement of which he has manifested his adoption or belief in its truth; or
(c) A statement by a person authorized by him to make a statement concerning the subject.
Art. 803(6). Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, including but not limited to that which is stored by the use of an optical disk imaging system, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if made and kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make and to keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. This exception is inapplicable unless the recorded information was furnished to the business either by a person who was routinely acting for the business in reporting the information or in circumstances under which the statement would not be excluded by the hearsay rule. The term “business” as used in this Paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports which are specifically excluded from the public records exception by Article 803(8)(b) shall not qualify as an exception to the hearsay rule under this Paragraph.

The exception to the hearsay rule addressed in La. C.E. art. 803(6) concerns records of regularly-conducted business activity. The article requires that:

|41. The record of an event must have been made at or near the time of the event;
2. The record of an event must have been made either by, or from information transmitted by, a person with knowledge;
3. It must be made and kept in the course of a regularly conducted business activity;
4. It was the regular practice of that business activity to make and keep such records;
5. The recorded information must have been furnished to the business either (a) by a person who was routinely acting for the business in reporting the information; or (b) in circumstances under which the statement would not be excluded by the hearsay rule; and
6. Neither sources of information nor the method or circumstances of preparation must indicate a lack of trustworthiness.

State v. Juniors, 03-2425 (La.6/29/05), 915 So.2d 291, cert. denied, Juniors v. Louisiana, — U.S. -, 126 S.Ct. 1940, 164 L.Ed.2d 669 (2006); Alexander v. Fulco, 39,293 (La.App.2d Cir.2/25/05), 895 So.2d 668, writ denied, 05-0781 (La.5/6/05), 901 So.2d 1107; Cole Oil & Tire Co., Inc. v. Davis, 567 So.2d 122 (La.App. 2d Cir. 1990).

Despite the trial court’s ruling, the “Application and Agreement for Membership” was executed by DC & S and evidences the company’s own statement of the parties’ relationship and contract. Accordingly, it is not hearsay under the provisions of Article 801(D)(2). See, Hayles v. Sonat Exploration Co., 02-1890 (La.App. 4th Cir.3/3/04), 868 So.2d 276. The contract states that DC & S agreed “to cooperate in any way with the Fund in regard to periodic audits.” DC & S also acknowledged in the agreement its obligations as a member/employer of a group self-insurance fund under the Louisiana Workers’ Compensation Act, La. R.S. 23:1195, et seq. The Act requires an annual “premium audit” for the employer’s participation in a | Rself-insurance fund, “to be conducted by an independent payroll audit firm.” La. R.S. 23:1196.

The next document in the Fund’s file for DC & S was the actual independent audit of the employer’s payroll for 1996. We agree with the trial court that this audit of DC & S’s payroll records was admissible under the business records exception to the hearsay rule. As indicated by DC & S’s application for membership in the Fund and the Workers’ Compensation Act, such audit is a regular practice of the business. The independent auditing firm, Louisiana Audit Services, performed the financial review of DC & S’s 1996 payroll records in a timely manner in early 1997 for the assessment of premiums. The method of preparation and source of information indicate trustworthiness. Therefore, the document was properly admitted.

From the 1996 audit report and the testimony of Parker, the delinquent insurance premiums were substantially established by the Fund’s evidence. The final documents objected to by DC & S were merely notices of its delinquency given by the Fund, and such notices were also properly admitted into evidence.

DC & S’s final argument relates to the workers’ compensation insurance coverage for Gwen Plunkett. The record shows that this employee was the daughter-in-law of the business owners. There is no explanation given by DC & S why this employee would not be a covered employee under the Act. On DC & S’s application for membership in the Fund, only the two owners of the business elected to be excluded from [ (¡coverage. Moreover, DC & S did not attempt to show how the amount owed for premiums, or any portion thereof, was attributable to the coverage pertaining to this employee.

Conclusion

For the reasons set forth above, the trial court’s judgment is hereby affirmed at appellant’s costs.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, DREW and SEXTON (Pro Tempore), JJ.

Rehearing denied.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee v. Ricky Wayne THOMAS, Appellant.
    No. 41,734-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Ricky Wayne Thomas, pro se.

      Louisiana Appellate Project by Laura M. Pavy, for Appellant.
    Paul J. Carmouche, District Attorney, for Appellee.
    Before BROWN, WILLIAMS and LOLLEY, JJ.
   LOLLEY, J.

| ¶ This criminal appeal arises from the First Judicial District Court, Parish of Caddo, State of Louisiana. The defendant, Ricky Wayne Thomas, was convicted of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. He was sentenced as a fourth felony offender to life imprisonment at hard labor, without the benefit of probation, parole or suspension of sentence. Thomas appeals his conviction and sentence, which we affirm for the following reasons.

Facts

Thomas was charged by bill of information for simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2. At the trial of the matter, the following facts were adduced.

On the morning of April 15, 2002, Hugo and Angela Bellamy and a friend, Jimmy Moore, returned to the Bellamys’ home, and when Hugo entered the house, he noticed a glare coming from a back bedroom. He hollered to his wife, who had remained outside, that someone was in the house. Hugo then encountered an intruder coming out of the back bedroom wearing Hugo’s hat on his head. Hugo attempted to grab the intruder; however, he was unable to hold onto him due to an injured left hand. During this time, Angela was standing behind her husband and was able to observe the intruder.

When Hugo and Moore tried to corner the intruder, he claimed to be on drugs and dangerous. Concerned for their safety, the victims decided to let the intruder go. He ran out of and around the house, over a fence and disappeared. Upon searching the house, the Bellamys determined that the | intruder had stolen several rings, a necklace, two watches, a gold coin collection and some silver dollars.

The Bellamys made a police report to Officer David Crye of the Vivian Police Department. According to the report, the Bellamys described the perpetrator as a black male of dark complexion, in his early 20’s, of stocky build and weighing approximately 200 pounds wearing a red shirt and a ball cap. Officer Crye took the Bella-mys’ statement and made a list of the items allegedly taken. His investigation did not include dusting for fingerprints.

Approximately one week later, on April 22, 2002, the Bellamys were driving along when Hugo spotted Thomas walking on the street and recognized him as the intruder. He dropped his wife off to keep an eye on Thomas and drove to the police department to report the sighting.

When he returned with Officer Crye, Angela pointed them in the direction which Thomas had walked. Hugo got in Officer Crye’s patrol car and they drove around until they spotted Thomas walking down a driveway into a trailer park. Officer Crye stopped Thomas, and while he was doing an initial pat-down of Thomas, Hugo opened the door of the patrol unit and said, “That is him.” At this point Thomas struggled free from Officer Crye and ran away. Subsequently, Thomas was arrested by Sergeant Ryan Nelson and K-9 Officer James Rose of the Vivian Police Department.

As stated, Thomas was charged by bill of information with one count of simple burglary of an inhabited dwelling. Following the jury trial, Thomas was found guilty as charged by unanimous verdict. Thereafter, the | ¡¡state filed a bill of information alleging that this last conviction was Thomas’ eighth felony conviction and requested that he be sentenced as a fourth felony habitual offender. The adjudication hearing, adjudication, and sentencing all took place on January 19, 2006. At the beginning of that hearing, the defense filed a motion for post-verdict judgment of acquittal. After brief argument, the motion was denied.

During the habitual offender proceeding, the state presented the following evidence:

• Proof of guilty plea actually taken on February 5, 1992, to an October 16, 1991, simple burglary (Docket # 156,-733 of the First JDC), relative to which Exhibit S-2 contains the bill of information with fingerprints of the defendant therein and court minutes;
• Proof of guilty plea taken on September 26, 1994, to an April 16, 1994, simple robbery (Docket # 169,374 of the First JDC), as reflected by Exhibit S-3 containing the bill of information with fingerprints of the defendant therein, court minutes and transcript;
• Proof of guilty plea taken on February 9, 1996, to simple robbery committed on August 17, 1995 (Docket # 176,637 of the First JDC), as reflected by Exhibit S-4 containing the bill of information with fingerprints of the defendant therein, court minutes and transcript;
• Proof of guilty plea taken on August 10, 1999, to simple burglary of an inhabited dwelling committed on July 9, 1999 (Docket #203,124 of the First JDC), as reflected by Exhibit S-5 containing the bill of information with fingerprints of the defendant therein and court minutes; and
• Fingerprints of Thomas taken in court in the instant matter.

The state presented the testimony of an expert in fingerprint analysis who after comparing the prints on the bills of information from the predicate offenses and comparing them to those of Thomas given in court in this |4matter concluded that all fingerprints were taken from the same person, i.e., Thomas. The state then requested that the trial court take judicial notice of the conviction of the instant offense of simple burglary of an inhabited dwelling.

The trial court subsequently found Thomas to be a fourth felony habitual offender, sentencing him to serve the mandatory sentence of life imprisonment without benefit of parole, probation, or suspension of sentence. Thomas’ timely-filed motion to reconsider sentence was denied, and this appeal ensued.

Discussion

In his first assignment of error, Thomas argues that the evidence of his identification as the perpetrator of the burglary was insufficient to support a conviction for two reasons: (1) the Bellamys’ description of the intruder given to the police in the immediate aftermath of the crime lacked particularity; and, (2) the police failed to dust for fingerprints to which Thomas’ prints could have been compared. We disagree.

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 1995-1377 (La.02/28/96), 668 So.2d 1132. It is the role of the fact finder to weigh the respective credibility of the witnesses and, therefore, an appellate court accords great deference to a jury’s decision |sto accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App.2d Cir.08/30/02), 827 So.2d 508, writ denied, 2002-3090 (La.11/14/03), 858 So.2d 422. In the absence of internal contradiction or irreconcilable conflict with other evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App.2d Cir.05/08/96), 674 So.2d 1018, writ denied, 1996-1459 (La.11/15/96), 682 So.2d 760, writ denied, 1998-0282 (La.06/26/98), 719 So.2d 1048.

To the extent the identification of the defendant as the perpetrator of the crime is an issue, the state is required to negate any reasonable probability of mis-identification in order to carry its burden of proof beyond a reasonable doubt. State v. Bright, 1998-0398 (La.04/11/00), 776 So.2d 1134. The factfinder weighs the respective credibility of the witnesses, and this court will generally not second-guess those determinations. Id. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App.2d Cir.04/08/96), 672 So.2d 428, writ denied, 1997-0383 (La.10/31/97), 703 So.2d 12.

Here, both victims identified Thomas at trial as the intruder they saw in their home on April 15, 2002. The Bellamys’ testimony indicated that they had ample time to observe the intruder during the burglary, and their testimony as to his identity was neither conflicting nor internally inconsistent. Hugo testified that he had come face-to-face with the intruder. When Hugo was asked about the degree of certainty in his identification, he stated that he was “positive,” “100 percent positive,” and that he “would | fiknow him anywhere.” There is no evidence in the record that either of the witnesses’ visibility was impaired by poor lighting or other conditions which might call the identification into question. Furthermore, the evidence showed that Hugo independently identified Thomas just one week later while Thomas was walking down the street. That identification was entirely random and not solicited by law enforcement; thus there is no evidence that it was the result of any suggestive procedure. The jury was called upon to evaluate the credibility of the victims and decided to accept their identification as accurate. Nothing in their testimony presented an internal inconsistency or an irreconcilable conflict with physical evidence. Therefore, the jury’s decision to credit this testimony was not manifestly erroneous or clearly wrong. Furthermore, there is no requirement that the police dust the crime scene for fingerprints. The fact that the Bella-mys actually saw Thomas committing the crime does not make it unreasonable that the jury would have convicted him solely on this evidence and without fingerprint evidence. Accordingly, this assignment of error is without merit.

In his second assignment of error, Thomas argues that the trial court imposed an excessive sentence. Specifically, he argues that the trial court erred by not complying with La. C. Cr. P. art. 894.1, and in giving him the maximum sentence of life imprisonment at hard labor, because such sentences should be reserved for the most serious violations of the subject offense.

In this case, La. R.S. 15:529.1(A)(l)(c)(ii) mandated a life sentence without benefits for Thomas, because he is a fourth felony offender whose |7current offense is punishable by 12 years at hard labor and two of his predicate offenses (simple robberies) are defined as crimes of violence. La. R.S. 14:2(13)(y).

Where there is a mandatory sentence, there is no need for the trial court to justify, under article 894.1, a sentence it is legally required to impose. State v. Burd, 40,480 (La.App.2d Cir.01/27/06), 921 So.2d 219, writ denied, 2006-1088 (La.11/09/06), 941 So.2d 35. Because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court’s compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La.App.2d Cir.04/04/01), 784 So.2d 714. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La.App.2d Cir.03/31/99), 747 So.2d 61, writ denied, 1999-1689 (La.11/12/99), 749 So.2d 653, cert. denied, 529 U.S. 1114, 120 S.Ct. 1973, 146 L.Ed.2d 802 (2000).

The mandatory life sentences the habitual offender law requires are presumptively constitutional and should be accorded great deference by the judiciary. State v. Johnson, 1997-1906 (La.03/04/98), 709 So.2d 672, 675; State v. Wade, 36,295 (La.App.2d Cir.10/23/02), 832 So.2d 977, writ denied, 2002-2875 (La.04/04/03), 840 So.2d 1213. Nevertheless, the Louisiana Supreme Court has stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution. That power, however, should only be exercised in rare cases and only when the court is firmly convinced that the minimum |Rsentence is excessive. State v. Ponsell, 33,543 (La.App. 2d Cir.08/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490.

Since the habitual offender law is constitutional in its entirety, the minimum sentences it imposes upon recidivists are also presumed to be constitutional. State v. Gay, supra; State v. Johnson, supra. The courts have held that the burden is on the defendant to rebut the presumption that a mandatory minimum sentence is constitutional. To do so the defendant must “clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.” State v. Johnson, supra; State v. Wade, supra.

Furthermore, a trial judge may not rely solely upon the nonviolent nature of the instant or past crimes as evidence which justifies rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the main reason for declaring such a sentence excessive. State v. Lindsey, 1999-3256 (La.10/17/00), 770 So.2d 339; Wade, supra.

Here, Thomas fails to articulate any reason why his circumstances justify an exception to the imposition of the mandatory sentence. As noted above, in order to overcome the legislative mandate, there must be clear and convincing evidence that the defendant is exceptional or that, because of unusual circumstances, he is the victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense and the circumstances of the case. No such unusual 19circumstances are argued nor do they appear to be present in this case. Furthermore, the record indicates that Thomas is in fact a five-time felony offender (and potentially an eight-time felony offender). Therefore, his mandatory life sentence does not shock the sense of justice. See State v. Dorthey, 623 So.2d 1276 (La.1993).

Finally, a review of this record reflects that at sentencing, the trial court did not advise Thomas of the time period within which to apply for post-conviction relief. The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitations period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. State ex rel. Glover v. State, 1993-2330 (La.09/05/95), 660 So.2d 1189. The trial court should have advised Thomas, and we now advise him by this opinion, that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr. P. arts. 914 or 922.

ConClusion

For the foregoing reasons, Ricky Wayne Thomas’ conviction and sentence are affirmed.

AFFIRMED.


text:
    Eliger TUGLER, Jr., Plaintiff-Appellant v. JAMES MACHINE WORKS INC., Defendant-Appellee.
    No. 41,704-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Eliger Tugler, Jn In Proper Person.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P. By: Joseph J. Lowenthal, Christopher S. Mann, New Orleans, and Vanessa W. Servat, Lafayette, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

_[jln this workers’ compensation action, the claimant sought benefits for an alleged occupational disease caused by his work as a sandblaster. His former employer argued that claimant’s lump sum settlement in 2002 for injuries from a 1996 workplace accident precluded further recovery of benefits. In response, claimant petitioned to nullify the judgment dismissing his pri- or workers’ compensation claim which had been settled. After denying defendant’s exception of res judicata, the workers’ compensation judge dismissed claimant’s petition for nullity and expressly allowed this occupational disease claim proceeding to continue. Because we find this judgment was interlocutory, we dismiss the appeal.

Facts and Procedural History

In 2002, Eliger Tugler, Jr. (“Tugler”) filed this Form 1008 claim with the Office of Workers’ Compensation (“OWC”) (Case No. 03-04880) for workers’ compensation benefits, alleging a “silica sand [lung] injury [disease].” Two weeks later, he filed a statement also alleging “previous occupational exposure from the sandblasting.” The defendant, James Machine Works, Inc. (“JMW”), answered raising in defense a court-approved ■ workers’ compensation settlement agreement dated October 31, 2002, between JMW and Tugler. The settlement related to a prior workplace injury on May 31, 1996, affecting Tugler’s neck, shoulder and hands. Tugler filed a previous claim before the OWC (hereinafter the “Accident Claim”) which led to the court-approved settlement.

| ?Upon JMW’s assertion of the prior settlement, Tugler’s counsel petitioned to annul the settlement judgment arising from the prior Accident Claim. The “Petition” was not assigned a separate case number and the pleading was filed in Case No. 03-04880 by the OWC. Citation was not requested upon JMW. At that time, JMW also moved for dismissal of the present occupational disease claim on the grounds of res judicata. The hearing on the exception ultimately occurred in June 2005, and the workers’ compensation judge (“WCJ”) denied the exception.

Tugler’s petition to annul remained pending and was further argued in April 2006. At that time, he was unrepresented. After hearing testimony from the attorney who negotiated his lump sum settlement in the prior Accident Claim, the trial court made the following ruling:

All right. Based on the evidence that’s been presented to me, I am Unable to find fraud or misrepresentation by a party to the proceeding. It does appear to have been some miscommunications between Mr. Tugler and his attorney, Mr. LaCroix.... I’ve reviewed the documents 'in the files extensively. I note the 1008 that was filed by Mr. Tugler on June 14, 2001, in Docket Number 01-04212, which is the claim that was settled in December 2002. The parts of the body listed on the 1008 shows neck, shoulder, hand.... And so, based on that, the petition to annul the settlement of December ,3, 2002, is denied as related to the injuries ... involving claimant’s neck, back and hip. There is no evidence that the defendants are relieved from liability in regard to a silicosis claim. The issue of silicosis was not listed in the 1008. The issue of silicosis was not listed in the settlement documents signed by the claimant. The issue of silicosis was not mentioned in open court when this court approved the document.... The claim for silicosis was not settled [or] resolved.

On May 3, 2006, the trial court signed the following judgment:

Considering the pleadings and the evidence presented at the hearing, the applicable law and the arguments of counsel, Claimant’s Petition to Annul is DENIED. The Court further pfinds that any potential silicosis claim was not included in the prior settlement entered into by the parties, and Claimant is not precluded from pursuing a silicosis claim as a result of the prior settlement.

Tugler appeals the judgment.

Discussion

An appeal can be dismissed because there is no right to appeal. La. C.C.P. art. 2162. Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. . La. C.C.P. art.2082. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. An interlocutory judgment is ap-pealable only when expressly provided by law. La. C.C.P. art. 2083(C). A judgment overruling the peremptory exception of res judicata is interlocutory and is not appeal-able. Ciolino v. Castiglia, 446 So.2d 1366 (La.App. 1st Cir.1984).

The preliminary matter raised in the course of this action for an occupational disease claim was the effect of the parties’ 2002 settlement and compromise of the prior lawsuit regarding the Accident Claim. Compromise can be the basis for a plea of res judicata. La. C.C. art. 3078. Therefore, JMW was entitled to raise its defense regarding the res judicata effect of the prior settlement through the peremptory exception. See, La. C.C.P. art. 927(A)(2). Duplicitously, instead of merely defending against JMW’s res judicata exception, Tugler also challenged the integrity of the 2002 settlement by his nullity claim presented not in a separate lawsuit, but the present suit. After considering both the peremptory exception and the Ifill-pled “nullity” claim, the WCJ reached a singular and interlocutory conclusion that the 2002 settlement does not preclude the present action concerning the alleged occupational disease.

The judgment of the WCJ being interlocutory, the appeal is dismissed. Costs of this appeal are assessed to Tugler.

APPEAL DISMISSED.


author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Jason Aaron SCOTT, Appellant.
    No. 41,690-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 24, 2007.

      Louisiana Appellate Project, by W. Jarred Franklin, for Appellant.
    Paul J. Carmouche, District Attorney, Brady O’Callaghan, Damon Daniel Kervin, Tommy J. Johnson, Assistant District Attorneys, for Appellee.
    Before DREW, MOORE and LOLLEY, JJ.
   MOORE, J.

| Mason Allen Scott was charged by bill of information with aggravated burglary, La. R.S. 14:60. After a jury found him guilty as charged, the court adjudicated him a second felony offender and sentenced him to 15 years at hard labor. Scott now appeals his conviction and sentence. For the reasons expressed, we modify the verdict, render a judgment of conviction of unauthorized entry of an inhabited dwelling, La. R.S. 14:62.3, and remand the case for further proceedings.

Factual Background

Sometime prior to the offense, Scott and his wife of three years, Jennifer, physically separated and she moved back home with her parents, the Harknesses, in north Shreveport. On the day of the offense, she gave Scott permission to use her SUV, a Toyota 4Runner, that was parked in her parents’ garage. Mr. Harkness, however, had made it clear to Jennifer that he did not want Scott coming to the house.

On the afternoon of May 9, 2005, Scott went to the house to get the 4Runner. Jennifer was out but her two aunts, one of whom lived there, were at home when he came to the door. Scott knocked on the front door and rang the doorbell, but Mrs. McClure, one of the aunts, did not open the door. He then went to the window of the bedroom where Mrs. McClure was sitting with her invalid sister, banged on the glass and demanded entry, saying he was there to get the car and his baby. Mrs. McClure replied that Jennifer and the baby were not there, and she would not let him in until |¾Jennifer returned. Scott then asked if she would raise the garage door; Mrs. McClure again refused. Scott replied that he would wait, and Mrs. McClure testified that she thought he had left.

Suddenly, she heard a loud crash and saw that Scott had forced open the locked front door. He barreled through the house and toward the garage. In the kitchen, he grabbed Mrs. McClure by the wrist and shoved her into the laundry room, saying, “Get out of my way.” He went into the garage and raised the garage door; Mrs. McClure testified that she tried to close it again, but he grabbed her shoulders and shoved her onto the floor. By the time she got up, Scott was backing the 4Runner out the driveway. He then sped away.

Two neighbors testified that they heard the commotion at the house and saw the 4Runner driving away fast. One of these phoned 911; Deputy Duke arrived to find Mrs. McClure too agitated to talk. She eventually identified the suspect as Scott, and advised that he might be going to his parents’ house in the Cross Lake area. Corporal Jennings arrested him there several days later.

Mr. Harkness admitted that he had donated the 4Runner to Jennifer, but maintained that he banned Scott from driving it or coming to the house. He testified that the double front doors were a total loss; he had to replace them at a cost of about $3,500. He also testified that the interior door leading into the garage had been opened very hard and banged into the Sheetrock, leaving a little hole.

|aAs noted, the state charged Scott with aggravated burglary and a 12-member jury found him guilty as charged. The state then charged him as a second felony offender, citing his 2002 guilty plea to residential burglary in Clark County, Arkansas. The court adjudicated him a second felony offender and sentenced him to 15 years at hard labor.

Discussion

By his first assignment of error, Scott urges the state failed to prove that he possessed the specific intent to commit “a felony or any theft therein” when he entered the house, an essential element of aggravated burglary, R.S. 14:60. The state responds that it proved felony criminal damage to property during the entry of the house, thereby satisfying all elements of the crime.

The constitutional standard of appellate review for sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517. However, if the appellate court finds that the evidence, viewed in the light most favorable to the state, supports only a conviction of a lesser included responsive offense, the court may modify the verdict and render judgment of conviction on the | ¿lesser included responsive offense. Article 821 E; State v. Houston, 40,642 (La. App. 2 Cir. 3/10/06), 925 So.2d 690, writ denied, 2006-0796 (La.10/13/06), 939 So.2d 373.

Specific intent is a state of mind that exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow from his acts or omissions. La. R.S. 14:10(1). Specific intent may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982); State v. Davis, 40,382 (La.App. 2 Cir. 10/26/05), 914 So.2d 1129, writ denied, 2005-2419 (La.4/17/06), 926 So.2d 512.

Aggravated burglary is defined by La. R.S. 14:60:

Aggravated burglary is the unauthorized entering of any inhabited dwelling, or of any structure, water craft, or movable where a person is present, with the intent to commit a felony or any theft therein, if the offender:
(1) Is armed with a dangerous weapon; or
(2) After entering arms himself with a dangerous weapon; or
(3) Commits a battery upon any person while in such place, or in entering or leaving such place.

In order to prove the crime of aggravated burglary, the state must prove beyond a reasonable doubt that the defendant made an unauthorized entry of a structure with the specific intent to commit a theft or a felony. State v. Lockhart, 438 So.2d 1089 (La.1983). The intent to commit a theft or felony must exist at the moment of entry. State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922. Felonious intent and unauthorized entry are separate elements of the crime. State v. Lockhart, supra; State v. Baker, 539,696 (La.App. 2 Cir. 5/11/05), 902 So.2d 1247, writ denied, 2005-2055 (La.4/28/06), 927 So.2d 281.

On close review, we are constrained to find that the evidence does not satisfy every element of aggravated burglary. The record easily shows that Scott had no authority to enter the house, as Mrs. McClure explicitly refused to let him in until Jennifer returned. The record also shows that Scott actually entered the house by violently kicking in the front doors and causing considerable damage. Finally, the record shows that once he entered, Scott committed a simple battery on Mrs. McClure by shoving her out of his way. He may also have committed simple criminal damage to property by banging the interior garage door into the Sheetrock, but this was not developed at trial.

The missing element is felonious intent. Jennifer testified that she gave Scott permission to use the 4Runner that day. Her father, Mr. Harkness, conceded that Jennifer owned the vehicle; this would negate his insistence that he (Mr. Harkness) had banned Scott from using it. Viewed most favorably to the state, Scott’s actions cannot be construed as intent to commit theft of the 4Runner. Moreover, the evidence does not show that Scott entered the house for the purpose of battering Mrs. McClure or damaging interior Sheetrock. His purpose was to take the 4Runner with his wife’s consent.

The state contends that by crashing through the front doors, Scott committed felony grade criminal property damage which should be | (¡considered as proof of felonious intent; in support it cites State v. Dunn, 263 La. 58, 267 So.2d 193 (1972). At sentencing, the district court also commented that property damage to the front door constituted the felony. However, the unauthorized entry and the felonious intent must be treated as separate elements of the offense. State v. Lockhart, supra; State v. Baker, supra. Even though Scott’s mode of entry resulted in considerable damage to the house, the criminal code and the jurisprudence do not permit us to use the unauthorized entry to prove felonious intent. They are distinct elements. At the moment of entry, there was no intent to commit a theft or any felony therein. The conviction of aggravated burglary must be reversed.

We further find, however, that the evidence will support a conviction of a lesser included responsive offense, unauthorized entry of an inhabited dwelling, and pursuant to La. C. Cr. P. art. 821 E, we will enter a judgment of guilty of that offense. Unauthorized entry of an inhabited dwelling is defined as “the intentional entry by a person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.” La. R.S. 14:62.3; State v. Davis, 2002-1043 (La.6/27/03), 848 So.2d 557. It is responsive to the offense of aggravated burglary. La. C. Cr. P. art. 814 A(42). For the reasons already discussed, the record shows that Scott intentionally entered, without authorization, the inhabited dwelling of Mr. Harkness. Judgment |7wiII be rendered accordingly, and the case remanded for further proceedings.

In light of this conclusion, we pretermit any consideration of Scott’s remaining assignment of error, which urges that the 15-year hard-labor sentence is .excessive.

Conclusion

We have reviewed the entire record and find nothing we consider to be error patent. La. C. Cr. P. art. 920(2). For the reasons expressed, we modify the verdict of aggravated burglary and render judgment of conviction of unauthorized entry of an inhabited dwelling. We remand the case for further proceedings in accordance with this opinion.

VERDICT MODIFIED; JUDGMENT OF CONVICTION OF UNAUTHORIZED ENTRY OF AN INHABITED DWELLING RENDERED; CASE REMANDED FOR FURTHER PROCEEDINGS.

      . The bill of information recites that the offense occurred on May 13, but this appears to be the date of Scott’s arrest. The sheriffs incident reports and the trial testimony confirm that the offense was May 9.

      . The state offered no photographs of the interior or exterior damage to Mr. Harkness's house. If any were taken and available, they would have been useful to this court.

      . State v. Dunn, supra, is inapposite as it addressed whether unauthorized entry could occur in a washateria and public school, places open to the public; the court found that such entry could never be unauthorized, regardless of the defendant’s intent. In passing, however, the court also stated that the element of unauthorized entry "must be determined as a distinct element of the offense, separate and apart from the intent to steal," which seems to reiterate the principles expressed in Lockhart and Baker, supra.


author: SEXTON, J. CARAWAY, J.,

text:
    TOWN OF HOMER, d/b/a Homer Memorial Hospital, Individually and as Assignee of Linda Tuggle, et al., Plaintiffs-Respondents v. UNITED HEALTHCARE OF LOUISIANA, INC., Defendant-Applicant.
    No. 41,512-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2007.
    Rehearing Denied Feb. 22, 2007.

      McGlinchey Stafford, PLLC, by Errol J. King, Jr., Layna S. Cook, Baton Rouge, for Applicant.
    Colvin, Weaver & Cerniglia, by James H. Colvin, Pamela N. Breedlove, Shreveport, for Respondents.
    Before WILLIAMS, STEWART, CARAWAY, LOLLEY & SEXTON (Pro Tempore), JJ.
   SEXTON, J.

h This matter comes before the court on the supervisory writ application of Defendant, United Healthcare of Louisiana, Inc. (“United”), seeking review of a judgment denying its exception of improper venue in a suit filed against it by the Town of Homer, d/b/a Homer Memorial Hospital (“Homer Memorial”' or “the hospital”), Individually and as Assignee of Linda Tug-gle, et al. This court granted certiorari and docketed the case for decision on the venue issue. For the reasons stated herein, the writ is made peremptory, Homer Memorial’s claims for penalties and attorney fees are dismissed with prejudice and the judgment of the trial court is reversed as to the remaining claims for damages. The case is transferred to East Baton Rouge Parish.

FACTS AND PROCEDURAL BACKGROUND

United is a domestic health management organization (“HMO”) licensed under Louisiana law. On May 1, 1997, United entered into a Participation Agreement with Homer Memorial. Pursuant to this agreement, the hospital (the provider) would provide healthcare to United’s members, who were also employees of the hospital, and United would pay Homer Memorial for these medical services. United provided coverage for the services rendered to its members by Homer Memorial via a group insurance policy entitled United Healthcare Choice Plus. Under this HMO plan, the employee/members were responsible only for co-payments, the annual deductible (if any) and charges for non-covered services.

On August 9, 2005, the Town of Homer, d/b/a Homer Memorial Hospital, filed a petition in Claiborne Parish for damages and penalties bagainst United for breach of contract and failure to pay for services rendered to its employees within 60 days. The Town of Homer filed the petition on behalf of Homer Memorial, individually (the Town of Homer owns the hospital) and as assignee of numerous named individuals who were current or former employees of the hospital to whom the hospital had rendered medical services and most of whom, according to the hospital, resided in Claiborne Parish. The hospital asserts that there are two different claims: (1) breach of the Participation Agreement and (2) failure to pay benefits for services rendered to the specifically named employee/members from whom the hospital had written Assignments of Benefits and Statutory Penalties (“special assignments” or “specially assigned claims”). Specifically, on the “first” claim, Homer Memorial seeks $68,786.45 in “unpaid benefits pursuant to its provider contract” (the Participation Agreement), plus attorney fees and costs. These damages are characterized by Homer Memorial as damages sustained by the hospital for the alleged breach of contract (the Participation Agreement) by United.

The “second” claim is based on $12,498.94 in unpaid services rendered to the specifically named employee/members from whom Homer Memorial obtained these special assignments. Thus, the hospital seeks $24,997.88 (double the claim amount) for benefits and penalties for the nonpayment of these specially assigned claims, as well as attorney fees under La. R.S. 22:657. All of the hospital’s claims are based upon United’s alleged arbitrary failure to pay the health insurance benefits due to the hospital for medical services rendered to United’s members.

|sOn September 21, 2005, United filed a declinatory exception of improper venue, asserting that the Participation Agreement between the hospital and United contained a mandatory and binding forum selection clause providing that the parties mutually agreed that venue for any legal action would be the Parish of East Baton Rouge. The language of the forum selection clause in the Participation Agreement states:

10.8 Governing Law. To the extent not preempted by federal law, this Agreement shall be governed by and construed in accordance with the laws of the State of Louisiana. It is agreed between the parties that proper venue for any legal action shall be in the Parish of East Baton Rouge. (Emphasis added.)

Homer Memorial responded with several arguments in opposition to the exception. The hospital asserted that the clause was permissive in nature and did not preclude venue in Claiborne Parish. Instead, according to the hospital, the clause merely provided that the parties consented to venue in East Baton Rouge Parish if the other party filed suit there. Additionally, Homer Memorial argued that it was seeking recovery of $68,786.45 in benefits owed to it for services rendered to other individuals and that the specially assigned claims by the former and current employees of the hospital were not subject to any venue clause. In this regard, the hospital relied on La. C.C.P. art. 76, which provides that an action on a health and accident insurance policy may be brought in the parish where the insured is domiciled or in the parish where the accident or illness occurred. The hospital further argued that, where there are multiple venues available, a plaintiff may choose any available venue; thus, all claims alleged in Homer Memorial’s petition could be brought in Claiborne Parish.

| ¿At argument on the exception; Homer Memorial cited the trial court to La. R.S. 13:5104(B), which provides:

B. All suits filed against a political subdivision shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

Homer Memorial argued that, had the parties not agreed on the permissive venue clause, the above provision would have operated to create an exclusive venue of Claiborne Parish for all disputes between the parties. It presented this argument as a proposed rationale for the parties to have agreed that East Baton Rouge Parish would be an additional proper venue for disputes. United countered by emphasizing that this statute is inapplicable because it deals with suits against political subdivisions and not suits filed by political subdivisions, such as the instant case.

ACTION OF THE TRIAL COURT

The trial court accepted Homer Memorial’s arguments and denied the exception of improper venue. The court provided several reasons for so ruling. First, the trial court noted that the breach of contract claim is obviously covered by the forum selection clause in the Participation Agreement making East Baton Rouge Parish the proper venue for that claim. Next, however, the trial court concluded that the specially assigned claims are not subject to the forum selection clause in the Participation Agreement because the assignors were not parties to the contract between United and Homer Memorial. Thus, the trial court found that Claiborne Parish was a proper venue for those claims under La. C.C.P. art. 76. Since |Bthere were two possible venues, the trial court concluded that venue in Claiborne Parish was proper for all claims.

In addition, the trial court recognized that La. R.S. 13:5104(B) is not directly applicable to the case sub judice because this is a suit by a political subdivision and not against it. The court, nevertheless, opined that the statute “expresses an underlying policy that suits involving political subdivisions should be heard in the parish where the political division is located.” A reading of the oral ruling and written reasons indicates that the trial court, in so ruling, was forecasting the possibility of a reconventional demand or counterclaim filed by Homer Memorial, despite counsel’s statement that such was not being contemplated by the hospital. This eventuality would then give the Town of Homer the ability to move the suit back to Claiborne Parish under section 5104(B). Citing judicial economy, the trial court denied the Town of Homer’s exception and the suit remained in Claiborne Parish. This writ/appeal ensued.

DISCUSSION

Venue is a question of law; and, therefore, on review, the appellate court conducts a de novo review of the record. Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App. 2d Cir.11/1/00), 779 So.2d 817.

The initial determinations that must be made in this matter are whether the forum selection clause in the Participation Agreement is mandatory or permissive and whether it is valid and enforceable. Forum selection clauses can be either mandatory or permissive. For a forum selection clause to be mandatory, it must clearly establish the parties’ intent Rto make the chosen venue exclusive. See City of New Orleans v. Municipal Administrative Services, Inc., 376 F.3d 501 (5th Cir.2004), cert. denied, 543 U.S. 1187, 125 S.Ct. 1396, 161 L.Ed.2d 189 (2005). When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

We find the forum selection clause at issue to be clear and explicit. The clause expressly states that the proper venue for any legal action shall be East Baton Rouge Parish. There is no ambiguity in this mandatory provision.

After determining the mandatory or permissive nature of the clause, we must determine whether it is enforceable. Forum selection clauses are legal and binding, and one seeking to set aside such a provision bears a heavy burden of proof. Pitts, Inc. v. Ark-La Resources, L.P., 30,897 (La.App. 2d Cir.8/19/98), 717 So.2d 268, citing Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5th Cir.6/28/95), 658 So.2d 20. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching or that enforcement would contravene a strong public policy of the forum where the suit is brought. McKoin Starter and Generator, Inc., v. Snap-On Credit Corp., 37,210 (La. App. 2d Cir.6/25/03), 850 So.2d 924, writ denied, 03-2605 (La.12/12/03), 860 So.2d 1156, citing Pitts, supra. There is no indication in the record that the forum selection clause is overreaching, unreasonable or unjust and |7no allegation of fraud has been advanced, nor has any evidence of fraud been adduced. Accordingly, we find that the forum selection clause is valid and enforceable.

We must now examine the claims asserted in this case and the proper venue therefor.

The trial court accepted Homer Memorial’s characterization of its “breach of contract claim,” admittedly arising out of the Participation Agreement. The court held that this claim, therefore, was clearly governed by the forum selection clause, indicating its finding that the clause, as to claims between United and Homer Memorial, was mandatory and enforceable. We agree. We further find, however, that all damage claims asserted by the hospital (whether labeled “breach of contract” or allegedly based on assignments of benefits)' arise under the Participation Agreement and are, therefore, subject to the forum selection clause.

As previously noted, all damage claims asserted by Homer Memorial in the petition represent unpaid benefits owed by United to the hospital under the Participation Agreement. United’s obligation to pay its provider is contractual and is clearly defined in the Participation Agreement, which provides that any legal action by the hospital to recover unpaid benefits can only be brought against United or its designated Payor. The Participation Agreement expressly prohibits Homer Memorial from seeking payment (exceeding copay-ments, payments towards the annual deductible and payments for non-covered medical services) from its employee/members. HMOs, by their nature, are designed to be “paperless” claims systems. In [ «fact, the hospital, as contracting provider, is prohibited by statute from maintaining “any action at law against” a member to collect sums owed by the HMO. La. R.S. 22:2018(0); DeSalvo v. Orleans Parish School Board, 97-1339 (La.App. 4th Cir.4/8/98), 711 So.2d 371. Since Homer Memorial’s recourse against the HMO for unpaid benefits is contractual in nature, any assignments of insurance benefits by the employee/members to the hospital, whether general or special, are superfluous. The benefit payments were owed to the hospital, not the members. Stated another way, United’s obligation is to pay Homer Memorial, not the employee/members, and the obligation is rooted in the Participation Agreement, not the assignments of benefits executed by the employee/members. In summary, we find that all damage claims asserted by Homer Memorial against United are breach of contract claims for failure to pay benefits due the hospital under the Participation Agreement and, therefore, are subject to the forum selection clause and must be brought in East Baton Rouge Parish.

Having established that the damages claims for unpaid benefits are subject to the forum selection clause, the only remaining question concerns the assigned claims for penalties and attorney fees under La. R.S. 22:657. That statute provides, in pertinent part:

A. All claims arising under the terms of health and accident contracts issued in this state, except as provided in Subsection | flB, shall be paid not more than thirty days from the date upon which written notice and proof of claim, in the form required by the terms of the policy, are furnished to the insurer unless just and reasonable grounds, such as would put a reasonable and prudent businessman on his guard, exist. The insurer shall make payment at least every thirty days to the assured during that part of the period of his disability covered by the policy or contract of insurance during which the insured is entitled to such payments. Failure to comply with the provisions of this Section shall subject the insurer to a penalty payable to the insured of double the amount of the health and accident benefits due under the terms of the policy or contract during the period of delay, together with attorney’s fees to be determined by the court. Any court of competent jurisdiction in the parish where the insured fives or has his domicile, excepting a justice of the peace court, shall have jurisdiction to try such cases.

This statute has been held inapplicable to claims by insured/members where the plaintiffs received medical services under an HMO plan. DeSalvo, supra. In DeSalvo, the court adopted the position of the HMO that 22:657 was not designed to cover a situation involving an HMO because the participants are not liable for any out-of-pocket expenditures and are not even responsible for fifing claims. The court opined that, if the statute was to apply to any HMO based claims, it would only be those filed by members seeking reimbursement under the terms of a group policy. An example of such a claim would be for excess copayments made by the member, not for benefits due the provider from the HMO under a provider contract, such as the Participation Agreement in the case sub judice. We agree with the rationale of DeSalvo and hold that the penalty provision of 22:657 would not be available to the employee/members in this case seeking penalties for failure to pay benefits to the provider.

An assignor cannot assign any rights greater than that which he held. Carte Blanche Corp. v. Pappas, 216 So.2d 917 (La.App. 2d Cir.1968); 10Del-Remy Corp. v. Lafayette Insurance Co., 616 So.2d 231 (La.App. 5th Cir.1993), writ denied, 617 So.2d 941 (La.1993). Since the employee/members could not seek penalties and attorney fees under 22:657 against the HMO, they could not assign any such rights to Homer Memorial. For this reason, we supply, on our own motion, and sustain an exception of no cause of action regarding the penalties and attorney fee claims under La. R.S. 22:657. La. C.C.P. art. 927; Johnston v. Lloyds Ins. Co., 37,489 (La.App. 2d Cir.8/20/03), 853 So.2d 738, writ denied, 03-2905 (La.1/9/04), 862 So.2d 988.

In summary, we find that the employee/members had no cause of action against United under La. R.S. 22:657 and, therefore, no such claim was transferred to Homer Memorial through the special assignments. The remaining damages claims asserted by Homer Memorial against United are subject to the forum selection clause, making venue proper for those claims only in East Baton Rouge Parish.

When an action is brought in a court of improper venue, an appellate court has the discretion to dismiss the action or, in the interest of justice, transfer it to a court of proper venue. La. C.C.P. art. 121. We elect to transfer this case to its proper venue.

DECREE

For the foregoing reasons, on this court’s motion, an exception of no cause of action is hereby supplied and sustained as to the Town of Homer d/b/a Homer Memorial Hospital’s claims for penalties and attorney fees under La. R.S. 22:657, thereby dismissing those claims with prejudice. As Into the remaining claims, the judgment of the trial court overruling the decli-natory exception of improper venue is reversed. Judgment is rendered sustaining the exception and remanding this action to the Civil District Court for the Parish of East Baton Rouge for further proceedings. The clerk of this court is ordered to transfer the record of these proceedings to the Clerk of Court for Civil District Court, East Baton Rouge Parish.

Costs in the amount of $69 are assessed to Plaintiff/Appellee, The Town of Homer, d/b/a Homer Memorial Hospital, Individually and as Assignee of Linda Tuggle, et al. See La. R.S. 13:5112.

REVERSED, RENDERED AND TRANSFERRED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi respectfully dissent from the majority’s ruling.

At the time the parties entered this disputed contract, our law governing venue for suits against the Town of Homer (hereinafter the “Town”) provided as follows:

All suits filed against a political subdivision of the state or against an officer or employee of a political subdivision for conduct arising out of the discharge of his official duties or within the course and scope of his employment shall be instituted before the district court of the judicial district in which the political subdivision is located or in the district court having jurisdiction in the parish in which the cause of action arises.

La. R.S. 13:5104(B). The test of this venue provision for bringing suits on a contract in the “parish in which the cause of action arises,” did not guarantee that the Town could be sued in United’s “home base” parish of East Baton Rouge. Contrast, National Linen Service v. City of Monroe, 39,199 (La.App. 2d Cir.12/15/04), 889 So.2d 1186 and UDS Management Corp. v. Ebarb Waterworks District No. 1, 32,103 (La.App. 2d Cir. 2/24/99), 728 So.2d 952, writ denied, 99-1175 (La.6/4/99), 744 So.2d 630. Thus, to avoid any venue issue over whether a United claim against the Town might be prosecuted in East Baton Rouge, United’s contract clearly purports to give United the right to sue the Town in that parish by its provision “that proper venue for any legal action shall be in the Parish of East Baton Rouge.”

This background for United’s contract gives the disputed provision a meaning and shows how it was to be applied for United’s benefit had it become necessary to sue the Town. But did this contractual provision ^inserted for United’s benefit take away the Town’s right for its “home base” venue in a suit against United? I don’t think so.

For most actions, venue is clearly now recognized in Louisiana as a multifaceted and flexible legal concept. The above-quoted venue statute for political subdivisions provides multiple choices for venue. In addition to the general venue grant of Article 42 of the Code of Civil Procedure, the articles following in the code provide other venues that may be used as the situs of a suit other than the Article 42 venue. Article 45 of the code sorts through the code’s multiple venue allowances giving to a few exclusivity while on the whole allowing the plaintiff to bring the action “in any venue provided by any applicable article.” As noted by our supreme court, “[ijndeed, Article 42, the general venue statute, employs the word ‘shall’ to define the general venue for different types of defendants, yet is subject to the numerous statutory exceptions.” Underwood v. Lane Memorial Hosp., 97-1997 (La.7/8/98), 714 So.2d 715, 717. Thus, “proper venue” for most suits in Louisiana is far from a singular narrow concept.

The majority misses the import of this broad notion for venue and effectively redrafts United’s contract with its finding that “the clause expressly states that the proper venue ... be East Baton Rouge Parish.” (Emphasis added.) Despite United’s desire for East Baton Rouge Parish to be “proper venue” for any suit, it never named that parish to be “the” only proper venue for suits between the parties. The following observation for statutory construction of the venue articles of the Code of Civil Procedure |aby the First Circuit Court of Appeal holds true for United’s drafting of its contract:

Plaintiffs’ arguments ignore the fact that there is one significant difference in the language of the two provisions. Article 593 provides a class action be brought in a parish of proper venue as to the defendant, which the Supreme Court interpreted in Cacamo to mean any parish of proper venue. In contrast, article 614 provides that a shareholder’s derivative action shall be brought in the parish of proper venue as to the corporation. “The” is a definite article, suggesting there is only one parish of proper venue as to the corporation in derivative actions.

H.R. 10 Profit Sharing Plan v. Mayeux, 03-0691 (La.App. 1st Cir.9/17/04), 893 So.2d 887, 895, writ denied, 05-0868 (La.5/13/05), 902 So.2d 1031 (emphasis in original). United did not draft its contract to make East Baton Rouge Parish “the” exclusive venue governing this dispute.

Finally, United’s contractual choice of venue for its benefit has been under a legislative cloud from inception. La. R.S. 51:1407 provides, in pertinent part, as follows:

It being against the public policy of the state of Louisiana to allow a contractual selection of venue or jurisdiction contrary to the provisions of the Louisiana Code of Civil Procedure, no provision of any contract which purports to waive these provisions of venue, or to waive or select venue or jurisdiction in advance of the filing of any civil action, may be enforced against any plaintiff in an action brought in these courts.

Although this provision has been argued by United to be limited only to the context of unfair trade practices, a legislative concern that rises to the level of a stated “public policy” prohibition would not be expected to be limited in any manner unless the legislature expressly narrows the policy. Also, this recent public policy expression of the legislature may serve to explain the | ¿somewhat obscure meaning of the Code of Civil Procedure Article 44(A) which states:

An objection to the venue may not be waived prior to the institution of the action.

Whatever the meaning of this legislative “public policy,” it is clear that United’s contract should be strictly construed to determine if the Town waived its “home base” venue in this case and the provision must be interpreted against the party who furnished its text. Proper venue is East Baton Rouge and Claiborne Parishes because United’s contract does not attempt to provide otherwise.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, LOLLEY and SEXTON (Pro Tempore), JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.

      . We find interesting that the special assignments executed by the employee/members cite consideration for the assignment as “Homer Memorial Hospital agreeing not to pursue me for the balance due for the services rendered....” Again, such a suit is expressly prohibited by La. R.S. 22:2018 and the Participation Agreement.

      . United’s contractual obligation to its members is to make healthcare available through network providers pursuant to the United Healthcare Choice Plus Plan (the group plan) and to pay those providers for services rendered pursuant to its Participation Agreement with those providers.