author: CLARENCE E. McMANUS, Judge.

text:
    Jo Ann L. Ulmer wife of/and Louis J. ULMER v. Dan C. FRISARD.
    No. 06-CA-377.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Dan C. Frisard, I.P.P., Metairie, Louisiana, in proper person Defendant/Appellant.
    Douglas W. Redfearn, M. Davis Ready, Shannon H. Huber, Simon, Peragine, Smith & Redfearn, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee Shelter Mutual Insurance Company.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

12Pefendant, Dan Frisard, appeals from the grant of a motion for summary judgment in favor of plaintiffs Jo Ann Ulmer wife/of and Louis Ulmer, and third party defendant, Shelter Mutual Insurance Company, dismissing his claims against them. For the reasons that follow, we affirm the decision of the trial court.

This suit began with the filing of a petition for damages by the Ulmers against Dan Frisard, alleging defamation, libel, slander, malicious prosecution, harassment, and intentional infliction of emotional distress. Frisard filed a reconventional demand against the Ulmers. In addition, he named Shelter Mutual Insurance Company (“Shelter”), the Ulmers’ home owners insurers, as a third party defendant.

The facts of this case are gleaned from the pleadings in the designated record before us. The proceedings forming the basis of this suit had their inception twenty years ago, when the parties entered into a real estate transaction for Frisard to purchase a home belonging Jo Ann Ulmer. Because of a misrepresentation of lot size in the sale, Frisard obtained a judgment in 1986 entitling him to the return of his deposit together with a like amount as a penalty. Frisard sought to execute on the judgment against the Ulmers by instituting foreclosure proceedings on real [ ¡¡property they owned in St. Tammany Parish, namely 16 Denni Court, Covington, Louisiana.

About that same time, the Ulmers filed a Chapter 13 bankruptcy proceeding, which was voluntarily dismissed by claimant about nine moths later on December 14,1989.

Subsequently, in 1990, Frisard executed on the judgment by causing the seizure of Jo Ann Ulmer’s1^ interest in the St. Tammany Parish property.

The Ulmers apparently filed four bankruptcy proceedings, at least three of which appear to have been pending at the same time. It appears that the Ulmers obtained a discharge of Frisard’s debt in bankruptcy court, and a discharge in bankruptcy on March 12,1992.

In May of 1998, the Twenty-Second Judicial Court rendered judgment decreeing that the 1990 Sheriffs sale was a nullity. Frisard again initiated executory proceedings in September of 1998.

The basis of this instant suit was a petition filed by the Ulmers against Dr. Frisard on November 16,1995. On March 22, 1996, Frisard filed a reconventional demand. He amended his demand on November 18, 1999, June 1, 2000, and April 25, 2001. In the June 1, 2000 amendment, he named Shelter as a third party defendant. In his reconventional demand, Fri-sard seeks to recover for negligence, defamation, malicious prosecution, abuse of rights, negligent infliction of emotional distress, intentional infliction of emotional distress and/or unjust enrichment.

Shelter filed a motion for summary judgment, which was adopted by the Ul-mers. After consideration, the motion for summary judgment was granted by the trial court, and Frisard’s action against the Ulmers and Shelter was dismissed. In the reasons for judgment, the court said that “Frisard’s. actions will fail due to an | ¿absence of factual support for one or more elements essential” to his cause of action.

A motion for summary judgment will be granted “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 mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966(B). The summary judgment procedure is favored and “is designed to secure the just, speedy, and inexpensive determination of every action.... ” LSA-C.C.P. art. 966(A)(2). Louisiana Code of Civil Procedure art. 966(C)(2) provides:

(2) The burden of proof remains with the movant. • However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, motion, or defense. Thereafter, if the adverse party 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.

Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

The court’s review of a grant or denial of a motion for summary judgment is de novo. Ocean Energy v. Plaquemines Parish Gvmt, 04-0066 (La.7/6/04), 880 So.2d 1. Thus, we ask the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

In his petition Frisard contended that the Ulmers, through their negligence and intentional acts, caused him damages financially, physically and emotionally. The trial court found that Frisard did not present factual support for one or more 15elements of his causes of action. The trial judge, in his reasons for judgment, stated that

Plaintiffs in Reconvention [Frisard] fail to provide factual support that the Ul-mer's were negligent in that they had a duty to conform their conduct to a specific standard, that they failed to conform their conduct to that standard, that their failure to conform to that standard of conduct was a legal cause of their damages, assuming damages occurred.
Plaintiffs in Reconvention fail to provide factual support that the Ulmers commenced or continued an original criminal or civil proceeding against the Frisards, that any such proceeding terminated in favor of the Frisards, that said proceeding lacked probable cause, that the Ulmers acted with malice therein, and that damage conforming to legal standards resulted to the Frisards ... Plaintiffs in Reconvention fail to provide factual support that the predominate motive of the Ulmers in exercising a right was to cause harm to the Frisards, that in exercising that right, the Ulmers had no serious or legitimate motive, that the exercise of the right by the Ulmers violated moral rules, good faith, or elementary fairness, or that the exercise of the right by the Ulmers is or was for a purpose other that for which it was granted.
Plaintiffs in Reconvention fail to provide factual support that the conduct of the Ulmers was extreme and outrageous, that the Frisards suffered severe emotional distress as a result of said conduct, and that the Ulmers desired to inflict severe emotional distress or knew that severe emotional distress would be certain substantially certain to result from their conduct. Factual support regarding the Ulmers intent in the protracted litigation has not been provided.

In his pro se brief to this Court, Frisard alleges that “The trial court in manifest reversible error granted summary judgment dismissing reconventional demand without acknowledging the most egregious causes of action and despite an abundance of factual support of evidence, law and jurisprudence supporting said causes of action and resultant damages.”

In his first allegation of error, Frisard contends that the trial court committed manifest error in failing to “either read a previously filed reconventional demand or failed to carefully read appellant’s third amending reconventional demand”, and 1 r,that “it failed to acknowledge the most egregious causes of action with the greatest alleged damages.” It appears that Fri-sard is arguing that the Ulmers, by the filing of their bankruptcy proceedings, violated bankruptcy statutes to his detriment, these filings, as well as the Ulmers actions in contesting the seizure of their real property in St. Tammany Parish (16 Denni Court), operated to unlawfully deprive him of his right to proceed against the Ulmers’ real property, and caused him financial, physical and emotional harm, and that the trial court failed to consider the evidence he presented for these causes of action.

In his second allegation of error Frisard alleges that “The trial court in reversible error overlooked an abundance of factual support evidencing that the Ulmers continuously and intentionally violated bankruptcy statutes in harassing appellant with abusive malicious litigation for 10 years, first in bankruptcy court and then without cause in Twenty-Second Judicial District Court culminating in the Ulmers’ intentional and wrongful incarceration of appellant.”

In support of these allegations, Fri-sard cites to “Reasons for Judgment” that were issued by the Twenty-Second Judicial District Court on July 31, 2000, in one suit instituted by the Ulmers. That case was dismissed after the Ulmers settled with Frisard’s insurer and therefore no judgment was rendered in that case. That case cannot serve as the basis for a malicious prosecution or other claim.

With regard to Frisard’s allegations of wrongful incarceration, he recites two instances where he alleges that he was wrongfully incarcerated. Concerning the first incident, resulting from his entry onto 16 Denni Court on November 18, 1998, Frisard stipulated that he was not appealing any causes of action arising out of that incident, at a hearing on the issue of the designation of this record.

Regarding his second incarceration, Fri-sard alleges in his petition that he was incarcerated in the St. Tammany jail from April 24th through April 28th, for |7failure to comply with discovery. However, he fails to present evidence to show that this incarceration was illegal or malicious.

The court reviewed the evidence presented to support Frisard’s allegations, especially the affidavit filed by Frisard, and the various court proceedings in the record, and found an absence of support for one or more elements of his claims against the Ulmers. We have conducted a de novo review of the record before us, and find that the trial court did not err in its determination.

In his third allegation of error, Fri-sard argues that the trial court erred in failing to strike the exhibits attached to the motion for summary judgment filed by Shelter (and adopted by the Ulmers) arguing that the exhibits were unsworn and unverified. The exhibits at issue are rulings from previous litigations. Frisard does not dispute that these rulings were made, nor does he call their authenticity into question. The trial court did not err in failing to strike these exhibits. Compare Reed v. American Equity Ins. Co., 05-1298 (La.App. 3 Cir. 4/5/06), 927 So.2d 1210. (Uncertified insurance policies that are filed with a motion for summary judgment may be considered if. nothing in the record calls their authenticity into question.)

From the record before we find no error in the trial court’s finding that the plaintiff in reconvention failed to present sufficient evidence to show that he would meet his evidentiary burden at trial. We therefore affirm the decision of the trial court granting summary judgment in favor of Shelter Mutual Insurance Company and Jo Ann Ulmer wife of/and Louis Ulmer, dismissing Frisard’s claims against them. All costs are assessed against appellant, Dan Fri-sard.

AFFIRMED.


source: Caselaw Access Project

author: FREDERICKA HOMBERG WICKER, Judge.

license: Public Domain

text:
    Shawn SMITH and Raychelle Fields v. AVANT GARDE HOMEOWNERS ASSOCIATION, INC., General Star Indemnity Company, Eustis Risk Management Resources, Cassie Billedeau, Joan Van Ginneken and ABC Insurance Company.
    No. 06-CA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Marianne S. Pensa, Frederick A. Miller & Associates, Metairie, Louisiana, for Defendant/Appellant.
    Ashley L. Belleau, Patrick H. Patrick, Patrick, Miller, Burnside & Belleau, L.L.C., New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

I ?This is an appeal from the confirmation of a default judgment against third party defendant, Johannes Van Ginneken. For reasons that follow, we vacate the judgment of the trial court and remand the matter.

Plaintiffs in the underlying action are neighbors who brought suit against several defendants, including Joan Van Ginneken, for fire damage sustained to their condominiums. According to the petition filed on June 14, 2005, the fire ignited at 86 Avant Garde Circle in a condominium owned by Ms. Ginneken and occupied by Cassie Billedeau. On August 19, 2005, one of the defendants, Avant Garde Homeowner’s Association, Inc. (Association), filed a cross-claim against Ms. Ginneken, seeking indemnification for the $5,000.00 deductible on its fire insurance policy on the theory that Ms. Ginneken is in default of the Declaration Creating and Establishing Condominium Property Regime (Declaration).

|3On November 23, 2005, the Association filed a third party demand against Ms. Van Ginneken’s husband, Johnannes Van Gin-neken, after it was gleaned that he is the actual owner of the condominium. The Association filed a motion for preliminary default on the third party demand on January 10, 2006. That default was confirmed on January 13, 2006. It is from that judgment that Johnannes Van Ginneken appeals.

Exception of Prescription

Before we consider the merits of the appeal, we must consider an exception of prescription filed by Mr. Ginneken in this Court. The Association opposed the exception, arguing that the third party action is a suit for contractual indemnification and, therefore, subject to a ten year prescriptive period. Alternatively, the Association argues that executive orders issued after Hurricane Katrina suspended the li-berative prescriptive and preemptive periods. We agree.

State of Louisiana Executive Order KBB 2005-32 issued on September 6, 2005 suspended legal deadlines including libera-tive prescriptive and preemptive periods through September'25, 2005. That order was made retroactive to August 29, 2005. That suspension was extended through October 25, 2005 by Executive Order, KBB 2005-48 issued on September 23, 2005, and through November 25, 2005 by Executive Order KBB 2005-67 issued on October 19, 2005. Accordingly, we deny the exception of prescription.

Default judgment

The basis for the grant of the default judgment is that Mr. Van Ginneken, as the owner of the unit in which the fire started, is liable to the Association for its expenses not covered by insurance by virtue of the Declaration, which holds a unit owner liable for the expense of any repairs not covered by insurance “rendered 1 ¿necessary by his act, neglect or carelessness.” ' The Declaration extends that liability of the owner to the above described acts of the owner’s lessees. Attached to the motion confirming the default are the Certificate of the Clerk that no' answer was filed, a Certification by Helen Mura, president of the Association, and Affidavit of Correctness of Account by the Association’s attorney, a copy of the $5,000.00 check from the Association, and a copy of the Declaration. Upon consideration of the motion and its attachments, the trial court rendered a default judgment against Mr. Van Ginneken in the amount of $5,000.00, together with legal interest, $2,871.00 in attorney’s fees, $2,500.00 in future attorney’s fees and $671.84 court costs. The judgment decreed further that Mr. Van Ginneken is liable for any amounts for which the Association is cast in judgment in the underlying action.

In brief to this Court, Mr. Van Ginneken asserts there was an insufficient prima facie evidence to support the default judgment. We agree. La. C.C.P. art. 1702 A provides in part that a “judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case.” A prima facie case sufficient to confirm a default judgment is established only when the party proves with competent evidence the essential allegations of his petition as fully as if each of the allegations were specifically denied. Beevers v. Burmaster, 00-1951 (La.App. 5 Cir. 4/11/01) 787 So.2d 381, 384.

Applying the above law to the matter before us, we find the record is totally devoid of any evidence relating to causation of the fire, a necessary element in the Association’s cause of action for uninsured amounts due as a result of acts of the owner’s lessee. The Association asserts that a prima facie showing on the element of causation was satisfied by a judicial admission made in an answer filed to the original petition by Joan Van Ginneken and State Farm, which denies any | Rnegligence on the part of either Mr. or Mrs. Van Ginneken, and further asserts that the fire was caused by the negligence of either Ms. Billedeau and/or the Association. That pleading is not in the record before us. However, even assuming ar-guendo that the Association is correct in its statement, it is of no consequence.

La. C.C. art. 1853 provides that;

A judicial confession is a declaration made by a party in a judicial proceeding. That confession constitutes full proof against the party who made it.

Mr. Van Ginneken was never made a party to underlying action and cannot be bound by the assertions in the answer to that action filed by Mrs. Van Ginneken and State Farm.

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

JUDGMENT VACATED; MATTER REMANDED.

      . The Association also named Ms. Billedeau as a defendant in the cross-claim.

      . The Association was dismissed from the original lawsuit when plaintiffs failed to amend their petition after a grant of a no cause of action exception.

      . The pleading is attached to the Association's sur-reply brief. However this Court is without jurisdiction to consider any evidence not in the record. Barrois v. Wal-Mart Stores, Inc., 97-636 (La.App. 5 Cir. 11/25/97) 703 So.2d 798


author: MARION F. EDWARDS, Judge.

text:
    Ginger FRANKS v. ST. CHARLES PARISH JAIL.
    No. 06-CA-405.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Janet L. Moulton, Janet Moulton and Associates, Attorney at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Don A. Almerico, Attorney at Law, St. Rose, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| aPlaintiff/appellant, Ginger Franks (“Franks”), appeals a judgment of the Twenty-Ninth Judicial District Court that dismissed her cause of action against the defendant/appellee, St. Charles Parish Sheriff Greg Champagne (“Sheriff Champagne”). Suit was originally filed against the St. Charles Parish Jail, but following an Exception of No Right or No Cause of Action, alleging that no such entity exists, Franks amended her complaint to name Sheriff Champagne. We affirm.

Franks alleged that she was injured when she slipped and fell in a puddle of water while visiting the jail. As a result, she sustained serious injuries. The court found in its judgment that Franks did sustain damages and that her chronic preexisting medical problems were exacerbated by the effects of the incident. However, the court concluded that Franks failed to show that Sheriff Champagne 18was liable for the incident. Thus, the issue of liability is the only one before us at this time.

At trial, the jail’s assistant warden, Frank Graffagnina (“Assistant Warden Graffagnina”), testified that, on the day of the incident, he arrived at the jail at approximately 2 or 3:00 p.m. and was there in the visitor’s room about three hours. He was seated in a chair facing the water fountains, about fifteen feet away, and saw some children, about eight years old, playing near the fountain. He at first testified that the children were near the fountain just a few minutes before the accident; later he stated that the children were there at around 3:00 p.m. and the accident happened at about 4:30 p.m. However, he did not see them spill any water. When Franks went to the bathroom, she slipped and fell. The fountain is between two bathrooms, set back in an alcove, and there was a small puddle of water, but Assistant Warden Graffagnina did not see any water on the floor before Franks fell. There were other employees in and around the area at various times. After Franks fell, someone came to clean the area.

Sergeant Louis Varnado (“SgtVarna-do”) was the commander on duty at the correctional center at the time of the accident. Cleaning in the area is normally done between 6:00 and 9:00 a.m., but if there are reports of spills or mess, trustees will clean it up. Central Control Officer Jennifer Payne (“Officer Payne”) controls the visitation area as well as the rest of the jail after 4:00 p.m. and sits at the control area. Officer Payne’s desk is not positioned to look into the visitation area, and the water fountain would have been to her back. The incident involving Franks occurred at around 4:30 p.m. When Sgt. Varnado received reports of the accident, he was making rounds in the jail pods where the inmates are housed. When he reached the lobby, Franks was still on the floor attempting to get up. Emergency medical service was notified. There was a small amount of water on Lthe floor and some black marks. Assistant Warden Graffagnina told him that children had been playing at the fountain prior to the fall. Sgt. Varnado was not aware of any problem necessitating cleanup until after the accident. If a problem had occurred prior to 4:00 p.m., notification would have been made to Visitation Officer Karen Perry (“Officer Perry”) at the window on the normal shift. Officer Perry would have turned over her duties to Officer Payne.

Franks testified that she had been at the Correctional Center for some time before she fell, attempting to obtain bond for her son. On her way to the restroom, she decided to get some water and when she stopped at the fountain, she slipped. She did not look at the size of the puddle.

Paul Eugene (“Officer Eugene”) was a corrections officer in the St. Charles Sheriffs Office at the time of the accident. Franks had come to obtain a bond reduction, and became a little irate when the office was unable to proceed with the reduction. As Officer Eugene was leaving the area, he heard a loud noise and discovered that Franks had kicked over a chair. Officer Eugene tried to calm her down, but Franks left abruptly and slammed the door. Officer Payne informed him that she was receiving harassing calls from Franks, who was outside smoking a cigarette. Officer Eugene spoke with her about the problem. Less than five minutes later, he was notified of the accident.

Officer Perry testified that she is a deputy in the St. Charles Parish Sheriffs Office and runs visitation at the jail. On the day in question, she did not receive any reports of water or other foreign substance on the floor of the visitation room. If there is a spill, she will clean it up or call the clean up crew. Officer Perry did not recall children playing around the fountain earlier, but there were a lot of people coming and going.

1 sOfficer Payne testified that the control room has eleven television monitors and one desk screen. From her chair she can look out into the booking area of the jail, and the visitor’s area is almost directly behind her. She is the only person in the reception area after 4:00 p.m. Franks was there, and was clearly upset, having an argument with another deputy. Franks then went outside, and Officer Payne could see through the window that Franks was very agitated and acting belligerently. Franks began calling the control center and yelling at Officer Payne. Officer Payne did not see the accident.

Deputy Jessica Matherne (“Deputy Matherne”) testified that she was the booking officer on duty and was summoned to speak with Franks about a problem with a bond at approximately 4:30 p.m. Franks was very irritated and yelled at her. Deputy Matherne called Sgt. Eugene, and then exited the area. She did not see the accident.

On appeal, Franks alleges the court erred by admitting into evidence her verbal dispute with the jail personnel, and by applying the requirement of notice instead of applying LSA-C.C. art. 2315, which Franks urges applies in the present case.

Franks cites cases that apply article 2315 in slip and fall cases involving prisons. However, these cases involved a jail employee and an inmate, respectively, and are not germane to the present facts. The applicable law is LSA-R.S. 9:2800, which states that a public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody. Under that article:

C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based | ^solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

D. Constructive notice shall mean the existence of facts which infer actual knowledge.

In interpreting this article, our courts have found as follows:

In order to maintain a claim for damages caused by the condition of things within the care and custody of a public entity, the complainant has the burden of proving that the public body had actual or constructive notice of the hazard and had a reasonable opportunity to remedy the condition, but failed to do so. La.Rev.Stat. Ann. § 9:2800(B); Purolator Courier Corp. v. City of New Orleans, 93-1068, p. 2 (La.App. 4th Cir.3/29/94), 635 So.2d 1232, 1233, writs denied, 94-1509, 642 So.2d 1296, 94-1542 (La.9/23/94), 642 So.2d 1296-97; Rubino v. La. Stadium & Exposition District, 619 So.2d 788, 740 (La.App. 4th Cir.1993). Thus, “the distinction between public bodies’ negligence and strict liability” has been eliminated by statute. Rhodes v. State, DOTD, 95-1848, p. 7 (La.5/21/96), 674 So.2d 239, 242.
... Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. LeBlanc v. City of New Orleans, 573 So.2d 1274, 1276 (La.App. 4th Cir.), writ denied, 575 So.2d 826 (La.1991)....

Considering the testimony at trial, we agree with the trial court Franks did not prove that Sheriff Champagne had actual or constructive notice of the puddle. As the court stated, several sheriffs deputies who were on duty that day testified that they had seen nothing out of the ordinary on the floor and received no reports of any foreign substance on the floor prior to the incident. There was uncertainty |7as to the temporal element in the testimony of Assistant Warden Graffagnina, the only witness who testified that there were children playing at the fountain some time prior to the accident. Further, there was no evidence that these children actually spilled water on the floor. There was no testimony as to the nature of the black marks near the puddle, or how long they may have been there. In summary, there was no proof that Sheriff Champagne knew or should have known, by exercise of ordinary diligence, that the puddle existed prior to Franks’ fall, or had a reasonable opportunity to remedy the condition and failed to do so.

Because Franks failed to prove an essential element of her claim, the question of the admission of evidence as to her verbal altercation is not relevant to our determination here, and we decline to address it.

For the foregoing reasons, the judgment is affirmed. Costs are assessed to the plaintiff/appellant, Franks.

AFFIRMED.

      . O’Connor v. Litchfield, 864 So.2d 234 (La.App. 1 Cir.2003), writ not considered, 2004-0655 (La.5/7/04), 872 So.2d 1069; Conerly v. State, ex. rel Louisiana State Penitentiary, 858 So.2d 636 (La.App. 1 Cir.2003), writ denied, 2003-2121 (La. 11/14/03), 858 So.2d 432.

      . Maldonado v. Louisiana Superdome Comm’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, 1091-92, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448.


author: MARION F. EDWARDS, Judge. GUIDRY, J.,

text:
    REVELLE SHIPPING AGENCY, INC. v. BENT’S MARINE, INC. a/k/a Bent Enterprises, Inc., Brunswick Corporation, American Marine Holding, Inc.
    No. 06-CA-403.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Michael W. Whitehead, Attorney at Law, Covington, Louisiana, for Plaintiff/Appellee.
    Marc E. Devenport, Burglass & Tank-ersley, L.L.C., Attorney at Law, Metairie, Louisiana, for Defendant/Appellant.
    Glen Ansardi, Ansardi, Maxwell & Power, Kenner, Louisiana, for Defendant/Appellant.
    C.G. Norwood, Jr., Patrick J. O’Cain, McGlinchey Stafford PLLC, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    A. Gordon Grant, Jr., Michael P. Arata, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P., Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

| ¡¡Parties to this action in redhibition appeal the trial court’s award of attorney’s fees, costs, expert fees, and costs incidental to the sale of the vessel at issue after remand by this Court. For the following reasons, the judgment of the trial court is amended, and we affirm as amended.

FACTS AND PROCEDURAL HISTORY

This case, an action in redhibition, appears before us for the second time on appeal. The underlying facts of the case, recounted in detail in our previous opinion, are not in dispute. Of particular relevance, however, are our findings in that previous opinion, wherein we determined that, appellant, Bent’s Marine, Inc. (“BMI”), was a bad-faith seller to the extent that it sold the vessel to plaintiff, Revelle Shipping Agency, Inc. (“RSA”), without recommending a galvanic isolator to prevent corrosion. We further held, pursuant to Evangeline Medical & X-Ray Distrib. Corp. v. Coleman Oldsmobile, Inc., that BMI was a good-faith seller with respect to the vessel and engine manufacturers’ defects and, therefore, the trial court was correct in ordering third-party defendants, American Marine Holding, Inc. (“AMH”) and Brunswick Corporation (“Brunswick”), to indemnify BMI.

Our opinion previously concluded:

For the foregoing reasons, we affirm the trial court judgment in favor of RSA and against BMI awarding a refund of the purchase price totaling $99,048.00; all costs incidental to the sale; repair costs of $17,525.20; damages for non-use totaling $40,000.00; attorneys fees; and costs of the lower court proceedings and judicial interest from the date of demand. We amend the trial court judgment and order RSA to return the vessel immediately to BMI. We also affirm the trial court’s award in favor of third-party plaintiff, BMI, and against the engine manufacturer, Brunswick, for $40,000.00 and the award in favor of third-party plaintiff, BMI, and against the vessel manufacturer, AMH, for $100,000.00.
Finally, it appears from the record that there is an outstanding motion to fix attorneys fees, costs, expert fees, and costs incidental to the sale of the vessel so we remand to the trial court for a hearing on that motion and further proceedings consistent with this opinion....

(Emphasis added.)

On remand, the plaintiff, RSA, filed a Motion to Fix Attorney’s Fees, Costs, Expert Fees and Costs Incidental to the Sale of the Vessel. Following a hearing on December 5, 2005, the trial court made the following awards to RSA: $50,000 for attorney’s fees and interest; $17,000 for expert fees, deposition costs and court costs plus judicial interest; $13,664.20 for reimbursement of interest payments and closing costs on the vessel; $9,842.25 for reimbursement of insurance premiums | Bexpended to preserve the vessel; $3,655.32 for reimbursement of dockage fees and incidental and supply expenses expended to preserve and maintain the vessel.

The trial court awarded $30,000 in favor of BMI against the third-party defendants, AMH and Brunswick, for a total of $60,000 for indemnification of additional expenses. The trial court further denied BMI’s request for attorney fees in its third party demand.

BMI, RSA, AMH and Brunswick all timely appeal different aspects of the trial court’s judgment.

LAW AND ARGUMENT

In its lone assignment of error, BMI asserts that the trial court erred in failing to award full indemnification to BMI against AMH and Brunswick.

In its Answers to BMI’s appeal, both AMH and Brunswick assert that the trial court lacked the legal authority to issue the. respective judgments at issue against them and, therefore, the judgments should be vacated. Brunswick further argues that the trial court’s judgment is erroneous because the amount it awards to the plaintiff, RSA, and to BMI is excessive.

In its Answer to BMI’s appeal, RSA requests an increase in the trial court’s award of attorney’s fees together with interest.

We first consider AMH and Brunswick’s argument that the trial court lacked jurisdiction to render judgment against them. Specifically, these third-party defendants assert that the respective $30,000 awards against them on remand in the trial court’s January 9, 2006 Judgment constituted an unlawful amendment to the prior final judgment of March 15, 2005, which was previously affirmed by this court.

LSA-C.C.P. art.1951 provides: “A final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on motion of | fiany party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”

In its January 9, 2006 Judgment, the trial court addressed the very issue of whether it was violating the provisions of LSA-C.C.P. art.1951.

The language of the Fifth Circuit clearly contemplates that further proceedings in this Court would be had and further liability regarding the motion to fix costs would attach. It is the position of this Court that the remaining liability while referenced in the language of the original decree is not an amendment to the original judgment, but rather a new judgment that could not be cast against Bent Marine until a hearing could be conducted. While American Marine and Brunswick are correct in holding the May 21, 2004 judgment as final and fully satisfied, American Marine and Brunswick’s argument lacks merit regarding further liability pursuant to the motion to fix costs incidental to the sale of the vessel.

We find that the trial court correctly interpreted the prior directive of this Court, and further adopt the trial court’s reasoning that AMH and Brunswick could be east for additional damages pursuant to LSA-R.S. 32:773.2, which, in relevant part, provides:

(C)Notwithstanding the terms of any franchise, selling, or other contractual agreement, each manufacturer shall indemnify and hold harmless its dealers against any judgment for damages, including but not limited to court costs and reasonable attorney fees of the dealer, arising out of complaints, claims, or lawsuits including but not limited to strict liability, negligence, misrepresentation, express or implied warranty or rescission of sale to the extent that the judgment arises out of alleged defective or negligent manufacture, assembly, or design of motorcycles, all-terrain vehicles, trailers, motor homes, recreational vehicles, travel trailers, marine products, parts, or accessories or other functions by the manufacturer, which are beyond the control of the dealer.

(Emphasis added.)

Also correctly noted by the trial court is BMI’s right to recovery against AMH and Brunswick under LSA-C.C. art. 2531, which states:

A seller who is held liable for a redhi-bitory defect has |7an action against the manufacturer of the defective thing, if the defect existed at the time the thing was delivered by the manufacturer to the seller, for any loss the seller sustained because of the redhibition. Any contractual provision that attempts to limit, diminish or prevent such recovery by a seller against the manufacturer shall have no effect.

Having found that it was permissible for the trial court to award further damages against AMH and Brunswick in its January 9, 2006 judgment, we next consider whether the amounts awarded by the trial court were excessive, as Brunswick suggests, or whether the trial court erred in failing to award full indemnification to BMI, as BMI argues in its assignment of error.

The trial court’s January 9, 2006 judgment details awards in two categories of those costs related to the litigation and costs incidental to the sale of the vessel. As previously noted, the trial court awarded RSA $50,000 for attorney’s fees and interest; $17,000 for expert fees, deposition costs and court costs plus judicial interest, for a total of $67,000. The court also awarded $13,664.20 for reimbursement of interest payments and closing costs on the vessel; $9,842.25 for reimbursement of insurance premiums expended to preserve the vessel; $3,655.32 for reimbursement of dockage fees and incidental and supply expenses- expended to preserve and maintain the vessel, for a total of $27,161.77.

Brunswick maintains that of the damages enumerated above, only those costs associated with sale and preservation, $27,161.77, are subject to BMI’s indemnity claim because “any award of attorney’s fees must rest on Bent’s status — limited though it may be — as a ‘bad faith’ seller.” Conversely, BMI asserts that, pursuant to our previous reliance on Evangeline Medical & X-Ray Distrib. Corp. v. Coleman Oldsmobile, Inc., supra, this Court should not only provide for a full reimbursement of all the damages it has to pay to RSA but that we should also award BMI all of its own attorney’s fees as well.

| sAfter a review of the record and applicable jurisprudence, we first affirm the trial court’s $94,161.80 award to RSA. As we reasoned in our previous opinion:

We reiterate that the manufacturer of a product is presumed to know the product had a redhibitory defect and, as such, is liable under La. C.C. art. 2545. While we agree that BMI was in bad faith with regard to the sale of the vessel to RSA for delivering the vessel with no corrosion protection, the record does not support finding that BMI was in bad faith with regard to the other redhibi-tory defects that were present in this vessel. We agree with the trial court’s finding that the defective fuel supply system design and hatch design were the sole responsibility of the vessel manufacturer, AMH. The record also reflects that Brunswick was responsible for redhibitory defects because it manufactured the engine with the defective longblock and, further, knew that its EFI engines were incompatible with the fuel supply system designed by the vessel manufacturer.
These defects were not, in fact, connected. In essence, BMI was a good faith seller with respect to the vessel and engines manufacturers’ defects and, therefore, the trial court was correct in ordering AMH and Brunswick to indemnify BMI. See, Evangeline Medical & X-Ray Distributors Corp. v. Coleman Oldsmobile, Inc., 402 So.2d 208, 212 (La.App. 1[st] Cir.1981).

In our previous opinion, we affirmed the trial court’s judgment that held BMI liable for $16, 573.20 of a $156,573.20 award, representing approximately 10.6 percent of that award. In affirming the award set forth in the trial court’s January 9, 2006 judgment, however, we note that BMI’s share of the damages, minus the respective $30,000 awards against AMH and Brunswick in favor of BMI, is $34,161.80, or approximately 36.3 percent. We find that, under the facts of this case, the trial court erred in not consistently apportioning liability among the parties in accordance with its previous judgment; accordingly, we reduce BMI’s share of the current judgment to $9,981.15. Further, in keeping with the trial court’s original allocation of responsibility for indemnification, we hereby amend the trial court’s judgment to award $60,169.39 against AMH, representing 19approximateIy 63.9 percent of the judgment, and we amend the award against Brunswick to $24,011.26.

We find no error in the trial court’s denial of BMI’s own attorney’s fees, and find no merit in BMI’s argument that they are owed further reimbursement beyond what we have detailed above.

In all other respects, the judgment of the trial court is affirmed.

AMENDED; AFFIRMED AS AMENDED

GUIDRY, J.,

concurs with reasons:

hi respectfully concur in the result reached by the majority. I agree that the trial court, on remand, did not err in rendering judgment in favor of BMI and against Brunswick and AMH for indemnification for part of the attorney’s fees, costs and interest assessed against BMI. Since the liability of Brunswick and AMH to BMI rested on indemnification principles, the amount owed for these additional expenses could not be determined until BMI was cast in judgment for them. Therefore, the fact that Brunswick and AMH were originally cast in judgment for a definitive amount did not preclude the trial court from rendering judgment on remand against them for the additional expenses.

      . 402 So.2d 208, 212 (La.App. 1st Cir.1981).

      . Revelle Shipping Agency, Inc. v. Bent's Marine, Inc., et al, 04-1274 (La.App. 5 Cir. 3/15/05), (NDP), p. 26, 896 So.2d 372. The record indicates that BMI’s Application for Supervisory Writs (No.2005-1159) for this opinion was denied at 904 So.2d 742 (La. 6/24/05).

      . Revelle Shipping Agency, Inc. v. Bent’s Marine, Inc., supra, at pp. 25-26.


text:
    Arthur MAJOR, III v. J. David PAINTER, John and/or Joan Doe; and, XYZ Insurance Company.
    No. 06-CA-470.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Arthur Major, III, I.P.P., Kinder, Louisiana, In Proper Person.
    Charles C. Foti, Jr., Attorney General, David G. Sanders, Patricia H. Wilton, Assistant Attorneys General, Baton Rouge, Louisiana, for Defendant/Appellee.
    Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS and EDWARD A. DUFRESNE, Jr.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

On March 12, 2002, Arthur Major, III, was found guilty of possession of cocaine in excess of 400 grams, following a jury trial in the 16th Judicial District Court in St. Martin Parish. He was sentenced to 40 years at hard labor. The Third Circuit Court of Appeal reversed his conviction and sentence. State v. Major, 03-249 (La.App. 3rd Cir.10/8/03), 857 So.2d 1252. That opinion was authored by Judge Billie Colombaro Woodard. The Louisiana Supreme Court then reversed the decision of the Third Circuit and remanded the case for further review. State v. Major, 03-3522 (La.12/1/04), 888 So.2d 798. When the matter was remanded to the Third Circuit by the Louisiana Supreme Court, Judge David Painter had replaced Judge Woodard on the Third Circuit Court of Appeal, having defeated her in the election. On remand, the Third Circuit, with Judge Painter as the author of the opinion, imposed a fíne and affirmed Major’s conviction.

On March 9, 2005, Major filed a Petition for Damages in the 14th Judicial District Court naming J. David Painter, individually, John and/or Jane Doe, and XYZ Insurance Company as defendants. Major claimed he was entitled to damages for mental distress because of Judge Painter’s actions during his Lcampaign for election to the Third Circuit Court of Appeal. Major asserted that Judge Painter ran campaign advertisements, during the time his appeal to the Louisiana Supreme Court was pending, that influenced the outcome of his case. The campaign ad stated “Billie Woodard is feeling the heat. Her record is flawed and the public has a right to know.” The ad also stated that “Billie Woodard says she is tough on crime, but in State v. Major, (857 So.2d 1252), a criminal was convicted for possessing 400 grams of cocaine. She reversed the convictions because she could not connect the cocaine to the defendant even though it was found in the dashboard of his car.”

In his petition, Major claimed Judge Painter should have recused himself from the case when it was remanded to the Third Circuit from the Louisiana Supreme Court. Major claims the campaign advertisements influenced Judge Painter’s decision on remand and he violated Canons 3 and 7 of the Canons of Judicial Ethics when he did not recuse himself.

By motion of the court, all judges of the 14th Judicial District Court were recused because Judge Painter was a former chief judge of that court and currently sits on the Third Circuit Court of Appeal, which has appellate jurisdiction over the 14th Judicial District Court. Judge Ted Broyles was appointed ad hoc judge by the Louisiana Supreme Court to preside over this case.

Judge Painter filed an Exception of No Cause of Action and No Right of Action arguing Major failed to state a cause of action for which relief could be granted because Judge Painter is entitled to absolute judicial immunity and Major has no right of action because he lacked standing to assert claims regarding judicial campaigns. The exceptions were submitted to the trial court by brief only. On March 24, 2006, the trial court executed Written Reasons Sustaining Exception, sustaining both the exception of no cause of action and the exception of no right of 14action. The trial court pointed out that Major seems to have alleged two things in his petition: 1) criticism for the type of campaign Judge Painter conducted against Judge Woodard, and 2) that Judge Painter should not have participated in the ease on remand and he violated the Canons of Judicial Ethics.

The trial court found that Major would not be the proper party plaintiff, even if one concluded Judge Painter ran a vicious or unworthy campaign. In addition, the trial court found that Judge Painter is entitled to absolute immunity in the performance of judicial acts, with regards to Major’s claim that Judge Painter should not have acted in his case on remand. The trial court also noted that considering all circumstances, amendment of the petition will not be permitted. Judgment was signed by the trial court on April 26, 2006 granting Judge Painter’s Peremptory Exception of No Right of Action and Peremptory Exception of No Cause of Action, dismissing all claims against Judge Painter.

Major now appeals the trial court’s granting of the exceptions. For the reasons discussed below, we affirm the trial court’s decision.

DISCUSSION

In the trial court, Judge Painter filed an exception of no cause of action, which is a peremptory exception, intended to test the legal sufficiency of the petition. La. C.C.P. art. 927. An exception of no cause of action should be tried only on the face of the pleadings. McCoy v. City of Monroe, 32,521 (La.App. 2 Cir. 12/8/99), 747 So.2d 1234, 1240, writ denied, 00-1280 (La.3/30/01), 788 So.2d 441. The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. Id., citing Barr v. Hathaway, 32,192 (La. App.2d Cir.8/18/99), 747 So.2d 99. The court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party. Id., citing Barr v. Hathaway, supra.

|5The appellate court should subject the case to de novo review when reviewing a trial court’s ruling sustaining an exception of no cause of action, because the exception raises a question of law and the lower court’s decision is based solely on the sufficiency of the petition. Id., citing Barr v. Hathaway, supra.

In this case, Major’s petition for damages, presents allegations against Judge J. David Painter, a judge of the Third Circuit Court of Appeal. The United States Supreme Court has recognized a long history of judicial immunity and its importance in protecting judges from vexatious actions prosecuted by disgruntled litigants. McCoy v. City of Monroe, supra, citing Forrester v. White, 484 U.S. 219, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988). A judge is entitled to absolute immunity where he performs “judicial” acts. Id, citing Moore v. Taylor, 541 So.2d 378 (La.App. 2d Cir.1989). A judge, in whatever status in the judicial hierarchy, is immune from suit for damages resulting from any act performed in the judicial role. Id.

Louisiana jurisprudence on judicial immunity mirrors the federal doctrine. McCoy, supra. A judge may not be cast for damages for his errors unless he has acted outside his judicial capacity. Id., citing Moore v. Taylor, supra. Therefore, in order for a plaintiff to state a cause of action against a Judge, the plaintiff must allege facts showing not only malice and corruption, but also that the Judge acted beyond his jurisdiction or outside his judicial capacity.

In this case, Major has alleged that Judge Painter’s political ads were defamatory and he violated judicial ethics by participating in his case on remand to the Third Circuit Court of Appeal. Both of these allegations involve acts within Judge Painter’s capacity as a judge. Therefore, Judge Painter would be protected by judicial immunity. We find the trial court correctly found that Major’s allegations did not involve acts performed outside of Judge Painter’s capacity as a | (judge. Therefore, we find his petition does not state a valid cause of action and Judge Painter’s exception of no cause of action was properly granted.

In addition, the trial court properly granted Judge Painter’s exception of no right of action with regards to Major’s allegations that Judge Painter’s political ads were defamatory. We find that Major is not the proper party plaintiff to institute an action against Judge Painter with regards to his political campaign.

Accordingly, we affirm the trial court’s judgment granting Judge Painter’s exceptions of no cause of action and no right of action and dismissing all claims of Major against Judge Painter.

AFFIRMED.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana v. John D. WILLIAMS.
    No. 06-CA-459.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Ken Dohre, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
    Kenneth J. Beck, Attorney at Law, Gretna, Louisiana, for John D. Williams.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

li>This is an appeal from a trial court judgment denying a motion to set aside a bond forfeiture. For the reasons assigned by this Court in Appeal No. 06-CA-443 rendered this date, the judgment of the trial court is hereby vacated and the matter is remanded to the trial court for further proceedings.

Facts and Procedural History

On December 1, 2003, John D. Williams was charged with a violation of La.R.S. 14:71, issuing worthless checks. Williams failed to appear for an arraignment hearing on January 27, 2004, and the court ordered an attachment to be issued. On February 12, 2004, defendant was arraigned and he pled not guilty. The court set bond in the amount of $1,000. On March I ¡¡3, 2004, Bankers Insurance Company (“Bankers”) through its agent posted a bond in the amount of $1000.00 for the release of defendant from the Jefferson Parish Correctional Center.

On March 15, 2004, defendant failed to appear for trial and the court ordered a second attachment be issued. Defendant appeared for trial on January 31, 2005 and the matter was continued on motion of the defense attorney.

On March 28, 2005, defendant failed to appear in court for trial, and on oral motion by the State, a judgment of bond forfeiture was rendered on this date. The judgment of forfeiture was' mailed to defendant, to Bankers and to Bankers’ agent on April 5, 2005.

On August 29, 2005, Hurricane Katrina struck southeast Louisiana, resulting in a disruption and suspension of government services, business transactions and normal life activities for an extended period. As a result of the problems created by. hurricane damage, the Governor of Louisiana issued a series of executive orders that extended deadlines in legal proceedings, beginning on September 6, 2005.

On October 25, 2005, Bankers filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment. Bankers asserted the judgment was an absolute nullity based on the fact that defendant could not be located because of the effects of Hurricane Katrina. Following a hearing on December 8, 2005, the trial court denied this motion. In its oral reasons, the trial court found that the motion to set aside bond forfeiture was not timely filed and further determined that the Governor’s Executive Order | ¿suspending legal deadlines did not apply to bond forfeiture proceedings. Bankers subsequently filed a motion to reconsider which was likewise denied on January 4, 2006. This appeal followed.

Discussion

In the opinion of this Court rendered this same date and numbered 06-CA-443, we considered the identical issue presented by this appeal. Although the State filed separate bills of information in each of these cases, the factual and procedural history are nearly identical. The parties are identical and the charges brought against defendant are the same. The only discernible difference between the two cases is that the present appeal involves a single count indictment in which Bankers posted a $1,000 appearance bond and 06-CA-443 involves a three-count indictment in which Bankers posted a $1,500 appearance bond. In all other aspects, the two cases are identical, and we will follow the same reasoning in both cases.

In No. 06-CA-443, we determined that the trial court erred in determining that the Governor’s Executive Orders suspending deadlines in all legal proceedings did not extend to these bond forfeiture proceedings. We concluded that based on the effect of these orders, Bankers’ motion was timely filed, and we remanded the matter to the trial court to consider the merits of that motion. We necessarily reach the same result here.

For the reasons assigned in Appeal Number 06-CA-443 rendered this date, we vacate the trial court’s judgment denying Bankers’ Motion to Set Aside Judgment of Bond Forfeiture and we remand the matter for the trial court to consider the motion on its merits.

VACATED AND REMANDED.

      . On the same date, Williams was charged in a companion case with three counts of violating La. R.S. 14:71. That case was assigned docket number 03-7392 and was assigned to the same division of the trial court handling the present case. Bankers also posted bond in this case which was subsequently forfeited based on defendant's failure to appear for trial. Bankers also filed an identical motion in this case to set aside the bond forfeiture, and the trial court heard both of these matters at the same time and rendered identical judgments. Bankers has filed separate appeals from these rulings.

      . The written judgment denying this motion is signed by the trial judge although it is not dated. However, it is evident that the judgment was signed after the hearing on December 8, 2005 when the trial court orally noted that the motion would be denied.


author: SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana v. John D. WILLIAMS.
    No. 06-CA-443.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Paul D. Connick, Jr. District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys, Appellate Counsel, Ken Dohre, Assistant District Attorney, Gretna, Louisiana, for the State of Louisiana.
    Kenneth J. Beck, Attorney at Law, Gretna, Louisiana, for Bankers Insurance Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG GERARD GUIDRY.
   SUSAN M. CHEHARDY, Judge.

| pThis appeal arises in a bond forfeiture proceeding. The surety appeals the district court’s denial of the surety’s Motion to Set Aside Judgment of Bond Forfeiture. We vacate and remand for new proceedings.

On December 1, 2003 John D. Williams was charged with three counts of violation of La.R.S. 14:71, issuing worthless checks. On February 12, 2004 he entered a plea of not guilty and the court set a bond of $500.00 on each count. The defendant posted a commercial surety bond in the amount of $1,500.00, underwritten by Bankers Insurance Company (“Bankers”).

On March 28, 2005 the defendant failed to appear for trial. The State made an oral motion for bond forfeiture, which the trial court granted in a written judgment rendered the same date. The notice of judgment was mailed to Bankers on April 5, 2005.

On August 29, 2005 Hurricane Katrina devastated much of south Louisiana, including Jefferson Parish, resulting in disruption and suspension of most government services, business transactions, and normal life activities for an extended period. As a result of the problems created by the hurricane damage, the 1 ¡¡Governor of Louisiana issued a series of executive orders that extended deadlines in legal proceedings, beginning on September 6, 2005.

On October 17, 2005 the attachment on the defendant was recalled. That was several days more than six months after the mailing of notice of the judgment of bond forfeiture.

On October 25, 2005, Bankers filed a motion to set aside the judgment of bond forfeiture. Bankers asserted the judgment of bond forfeiture is an “absolute non enforceable nullity,” on the grounds that the defendant could not be located because of the hurricane and that the six-month period within which to challenge the judgment of bond forfeiture had been extended by Executive Order No. KBB 2005-48.

The trial court concluded that the executive order did not apply to bond forfeitures and denied the motion to set aside the bond forfeiture. Bankers appealed. While this appeal was pending, the Louisiana Legislature enacted Act 466 of 2006, which provides for handling of bond obligations and bond forfeitures following fortuitous events such as hurricanes or other disasters.

La.R.S. 15:85 sets out the grounds and procedures for forfeiture and collection of bail bonds. The following paragraph applies here:

14(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture.... The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.

La.R.S. 15:87 provides a defense to forfeiture where the defendant’s failure to attend a court proceeding was because the defendant was in jail in another jurisdiction on that date. La.R.S. 15:87(A)(2).

La.C.Cr.P. art. 345 provides for surrender of a defendant “at any time prior to forfeiture or within the time allowed by law for setting aside a judgment of forfeiture of the bail bond.” La.C.Cr.P. art. 345(A). It provides several defenses to forfeiture and/or bases for discharge of the surety from obligation under the bond, including where the defendant is found to be incarcerated in another parish of the state of Louisiana or a foreign jurisdiction during the six-month period, allowed for the surrender of the defendant. La. C.Cr.P. art. 345(D).

On appeal Bankers raises the following issues:

1. The trial court should have granted the Motion to Set Aside Judgment of Bond Forfeiture, because the Governor’s Executive Order of September 23, 2005 extends the deadline for surrender or location of a defendant.
2. This matter should be remanded for further proceedings in light of Act 466 of the 2006 Regular Session of the Louisiana Legislature, an act which is now effective law, which has a retroactive effect, and which is specifically applicable hereto.

The State, in opposition to the appeal, argues that any post-Katrina extension of prescription dates is inapplicable because the Motion to Set Aside the Judgment 15of Bond Forfeiture and Petition for Nullity of Judgment was untimely prior to expiration of the six-month period. Specifically, the State asserts Bankers should have filed its motion within sixty days of the mailing of the judgment, not within six months, because the six-month period provided in La.R.S. 15:85 applies to the raising of defenses set out in La.C.Cr.P. art. 345 and La.R.S. 15:87.

The State contends that Bankers failed to assert such defenses in its motion, and, moreover, Bankers failed to raise any defense or state any reason for the defendant’s non-appearance at the March 28, 2005 court date, which occurred five months prior to Hurricane Katrina.

With respect to the amendments made by Act 466 of 2006, the State asserts that among the actions the trial court may take within its discretion is denial of relief. La. C.Cr.P. art 345(1) and (J), as amended by Acts 2006, No. 466, § 1. Hence, the State argues, the action taken by the court here was as authorized by the article, as amended, and the judgment should be affirmed.

The Executive Orders

At issue is the six-month time period within which a surety may move to set aside a judgment of bond forfeiture with a return of a defendant under La.C.Cr.P. art. 345. In this case, the six-month period overlapped the occurrence of Hurricane Katrina and the subsequent executive orders that extended prescriptive dates. The specific question is whether the extension of prescriptive periods applied to the time period set out in La.C.Cr.P. art. 345.

The first Executive Order, No. KBB 2005-32, was issued on September 6, 2005 and was in effect until September 25, 2005. On September 23, 2005 the governor’s office issued Executive Order No. KBB 2005-48, which amended | ^Executive Order No. KBB 2005-32 and extended its duration until October 25, 2005.

Executive Order No. KBB 2005-48 provided in pertinent part:

A. All deadlines in legal proceedings, including liberative prescription and per-emptive periods in all courts, administrative agencies, and boards are hereby suspended until at least October 25, 2005, including, but not limited to, non-constitutionally mandated deadlines in criminal proceedings....
B. The suspension of laws as provided in Subsection 1(A) of this Executive Order shall apply statewide and in all matters, except to the extent that the suspension of deadlines in legal proceedings may hereafter be shortened or lifted, in whole or in part, by an order issued by the Louisiana Supreme Court acting in accordance with the power vested pursuant to Article V of the Constitution.

Bankers asserts that under Executive Order No. KBB 2005-48, it had until October 25, 2005 to file its motion and for the defendant to be incarcerated, so that the trial court erred in finding the executive order inapplicable.

We find the language of Executive Order No. KBB 2006-48 applies to this matter. The Legislature approved, ratified and confirmed the Governor’s issuance of Executive Orders KBB 2005-32, 48, and 67 in the Civil Code Ancillaries in La.R.S. 9:5821, created by Acts 2005, 1st Ex.Sess., No. 6, § 1, eff. Nov. 23, 2005. Act 6 enacted Part IV, “Suspension or Extension of Prescription, Peremption, and other Legal Deadlines during Hurricanes Katrina and Rita,” of Chapter 1 of Code Title XXIV of Code Book III of Title 9 of the Louisiana Revised Statutes of 1950, comprised of R.S. 9:5821 to 9:5835, respectively. The Act declared that it is “interpretive, curative, and procedural and therefore is to be applied retroactively as well as prospectively.” Acts 2005, 1st Ex. Sess., No. 6, § 4, eff. Nov. 23, 2005.

|7La.R.S. 9:5822(A) states, “All prescriptions ... and all peremptive periods shall be subject to a limited suspension and/or extension during the time period of August 26, 2005, through January 3, 2006.” La. R.S. 9:5823(A) provides, “All deadlines in legal proceedings, which were suspended by Executive Orders KBB 2005-32, 48, and 67, shall be subject to a limited suspension and/or extension during the time period of November 25, 2005 through January 3, 2006....”

La.R.S. 9:5824 allowed a party domiciled within specified parishes (those most affected by Hurricanes Katrina and Rita), or whose cause of action arose within such parishes, or whose attorney is domiciled within or has a law office within such parishes, to seek in any court of competent jurisdiction a limited suspension and/or extension of prescription or peremption periods beyond the termination dates provided in La.R.S. 9:5822 and 5823. The statute provides, however, that this limited suspension or extension was to terminate on June 1, 2006.

Even if the Executive Order were interpreted to exclude bond forfeiture proceedings, however, the situation here is clearly within the scope of Act 466 of 2006.

Act 466 of 2006

As mentioned above, while this appeal was pending the Legislature passed Act 466 of the 2006 Regular Session of the Louisiana State Legislature. Among other things the act amended La.C.Cr.P. art. 345 to add subparagraphs I and J, which provide as follows:

I. In addition to and notwithstanding any other provision of law, a surety may seek an extension of time to surrender a defendant, or have the judgment of bond forfeiture set aside by filing a motion in the criminal court of record and after contradictory hearing with the district attorney and with proof satisfactory to the | sdiscretion of the court that a fortuitous event has occurred and that such event has made his performance required under the contract impossible to perform. A motion seeking relief pursuant to this Subsection must be filed within twelve months from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:
(1) Set aside the forfeiture or grant the nullity.
(2) Grant an extension of time up to twelve months from the expiration of the initial six month time period from the date of the mailing of proper notice of bond forfeiture....
(3) Deny the relief.
J. Regarding bail bond forfeitures for which the notices of bond forfeiture judgments were mailed between February 28, 2005, and September 21, 2005, inclusive, in addition to and notwithstanding any other provision of law, the defendant or surety may seek an extension of time to surrender a defendant or to have a judgment of bond forfeiture set aside by filing a motion in the criminal court record and after contradictory hearing with the district attorney and with proof satisfactory to the discretion of the court that after a reasonable effort to recover the wanted fugitive, the location and return of the wanted fugitive was made impossible by damage sustained during and immediately following Hurricane Katrina or Hurricane Rita. Such motion must be filed within twelve months of the date of the storm, the effect of which gives rise to the request for relief excluding legal delays. A motion seeking relief pursuant to the Subsection must be filed within twelve months from the date of the fortuitous event, excluding legal delays. The court in its discretion may do any of the following:
(1) Set aside the forfeiture or grant the nullity.
(2) Grant an extension of time up to twelve months from the expiration of the initial six month time period from the date of the mailing of proper notice of bond forfeiture....
(3) Deny the relief.

The Act provides that it is “interpretive, curative and procedural, and therefore is to be applied retroactively as well as prospectively.” Acts 2006, No. 566, § 4, effective June 15,2006.

Although Act 466 did not become law until six months after the judgment on appeal was rendered, it became law while this appeal was pending. The | gLegislature’s clear directive in Act 466 is that the act is to be retroactively applied. Courts are required to apply any retroactive new laws that are passed during pen-dency of lawsuits, within certain limitations. Mortal v. Smith & Wesson Corp., 2000-1132 (La.4/3/01), 785 So.2d 1, 10.

The general rule is that appellate courts will not consider issues raised for the first time on appeal. Another general rule, however, is that an appellate court is bound to adjudge a case before it in accordance with the law existing at the time of its decision. Where the law has changed during the pendency of a suit and retroactive application of the new law is permissible, the new law applies on appeal even though it requires reversal of a trial court judgment which was correct under the law in effect at the time it was rendered. Needless to say, where the law has changed after the trial court’s decision, the applicability of the new law can be argued for the first time only on appeal. [Citations omitted.]

Segura v. Frank, 93-1271, pp. 15-16 (La.1/14/94), 630 So.2d 714, 725.

The trial court did not consider the merits of Banker’s motion because the court felt the post-Katrina extensions of time limits did not apply; hence, the court dismissed the motion. We find that Bankers’ motion was timely filed, whether applying either the executive order or the newly-passed legislation.

Accordingly, we deem the appropriate relief is to vacate the judgment denying Bankers’ Motion to Set Aside Judgment of Bond Forfeiture and remand the matter for the trial court to consider the motion on its merits.

VACATED AND REMANDED

      . The Louisiana Legislature acknowledged the effects of Hurricanes Katrina and Rita in La. Acts 2006, No. 466, § 3, as follows:
      This Act specifically recognizes that hurricanes Katrina and Rita caused significant and devastating destruction of real and personal property, and resulted in the mandatory evacuation, relocation, and displacement of many residents in several parishes of the state of Louisiana. It also recognizes that the devastation caused by the hurricanes resulted in the governor declaring a disaster or emergency by executive order or proclamation pursuant to the provisions of the Louisiana Homeland Security and Emergency Assistance and Disaster Act for certain parishes. Further, it recognizes that the damages caused by these hurricanes have made it impossible for sureties and law enforcement officers to locate some defendants.

      . The judgment is in the form of an order attached to the original Motion to Set Aside Judgment of Bond Forfeiture. There is a line drawn through the text of the order and the handwritten word "Denied” is written on it, plus the signature of the judge on the appropriate line. There is no date in the dateline on the order. However, the transcript of the hearing on December 8, 2005 establishes that the trial court denied the Motion to Set Aside Judgment of Bond Forfeiture in open court, and rendition of the ruling is recorded in the minute entry for December 8, 2005. Accordingly, the irregularity of the order's being undated does not impede its appealability.

      . Executive Order No. KBB 2005-67 amended Executive Order No. KBB 2005-32, as amended by Executive Order No. KBB 2005-48, to provide that liberative prescriptive and peremptive periods were suspended statewide until at least Friday, November 25, 2005, and provided for suspension of deadlines in legal proceedings in specified parishes affected by Hurricane Rita.


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

text:
    LUCKY COIN MACHINE CO. v. ROUND UP LOUNGE, INC. and Genco Amusement Company, Inc.
    No. 06-CA-422.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.

      Michael T. Tusa, Jr., Peter J. Wanek, Retha E. Karnes, MeCranie, Sistrunk, An-zelmo Hardy, Maxwell & McDaniel, Attorneys at Law, Metairie, Louisiana, for Plaintiff/Appellant.
    Stephen D. Marx, Chehardy, Sherman, Ellis, Breslin, Murray, Recile & Griffith, LLP, Attorney at Law, Metairie, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and FREDERICKA HOMBERG WICKER.
   EDWARD A. DUFRESNE, JR., Chief Judge.

I ;>This is a dispute arising from a contract for placement of amusement machines between the Round Up Lounge, Inc. and Lucky Coin Machine Co. The contract at issue provided that Lucky Coin was to provide amusement machines of its own choosing to-the lounge and maintain them at its own expense. The proceeds from the machines were to be split 50-50 between the parties. It also provided that attorney fees would be owed if legal action was required to enforce the terms of the agreement. The term of the agreement was for five years.

The contract was signed in July of 2004, and several machines were duly delivered to the lounge. In the spring of 2005 Eric Louque, the proprietor of the Round Up Lounge, entered into another contract for the placement of machines with Genco Amusement Co., Inc. Louque then unplugged Lucky Coin’s machines and installed Genco’s machines in the lounge. Lucky Coin thereupon initiated the present legal action.

Is At trial Louque’s position was that although the contract provided that Lucky Coin had the sole discretion to determine what types of machines it would place at the location, it had nonetheless verbally agreed to install a foosball table and a “Big Bucks Hunter” machine at the lounge, but failed to do so. He also asserted that the machines actually placed at the lounge were constantly breaking down. He viewed these problems as constituting a breach of the agreement on the part of Lucky Coin which justified his seeking machines from Genco.

Lucky Coin presented testimony from several people on its staff who generally stated that the machines at the lounge functioned well and that although such machines often fail, those at this location had fewer problems than most others. It also admitted that Louque had asked for the two additional machines, which were in fact provided at about the time he contracted with Genco. Lucky Coin did not consider its earlier failure to provide these machines as a breach of the agreement, instead relying on the clause in the contract which gave it the exclusive right to determine which machines to provide.

On the above evidence the trial judge ruled in favor of Lucky Coin and ordered that its machines be re-installed in the lounge. He declined to award attorney fees and damages, however, and gave no reasons for judgment. Lucky Coin now appeals the determination not to award attorney fees and damages. Round Up Lounge has answered the appeal seeking reversal of the judgment in favor of Lucky Coin ordering its machines reinstalled.

The laws applicable to this case are as follows. Factual determinations made by the trier of fact may only be set aside when they are manifestly erroneous or clearly wrong. Stobart v. State of La. through DOTD, 617 So.2d 880 (La.1993). Article 1983 of the La. Civ.Code provides that “contracts have the effect of law for the parties.” Article 2046 of the Code providés that “[w]hen the words of a |,(Contract are clear and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.”

In regard to the judgment in favor of Lucky Coin, the trier of fact implicitly found that Louque’s complaints about the performance of the machines was unfounded, and instead accepted Lucky Coin’s assertion that the machines worked properly. Aso implicit in the judgment was the legal conclusion that the contract clearly gave Lucky Coin the exclusive right to determine which machines to install, as well as the factual determination that Louque’s assertion that there was a verbal amendment to the contract for additional machines was not well founded. Considering the record as a whole we cannot say that the above factual findings were manifestly erroneous, or that the legal conclusions were wrong. We therefore must affirm that judgment.

However, as to legal fees and damages, we hold that the trial judge fell into legal error. As noted above, contracts are the law between the parties. The contract at issue here clearly provides that if either party must seek legal redress then reasonable attorney fees will be owed by the other party. Aso, La. Civ.Code Art.1994 provides that “[a]n obligor is liable for damages caused by his failure to perform a conventional obligation.” There is no question that Lucky Coin had to resort to legal action, and it is thus entitled to legal fees under the specific language of the contract. Neither is there any question that the Round Up Lounge failed to perform under the contract and therefore that Lucky Coin is legally entitled to damages.

Because the trial judge made the erroneous legal conclusions that Lucky Coin was not entitled to either legal fees or damages, he apparently did not consider the evidence presented on either of these two claims. We therefore Rremand this matter to the district court for consideration of this evidence and rulings thereon consistent with this opinion.

For the foregoing reasons that portion of the judgment ordering that Lucky Coin’s machines be reinstalled in the Round Up Lounge is affirmed; that portion of the judgment holding that Lucky Coin is not entitled to attorney fees and damages is reversed, and the matter is remanded to the district court to fix the amounts of these latter items.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.


author:
WALTER J. ROTHSCHILD, Judge.
      GUIDRY, J.,

text:
    Sheldon Charles VINCENT, Sr. v. Melinda Marie Cormier VINCENT.
    No. 06-CA-419.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Leslie A. Bonin, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellee.
    Marcus A. Allen, Sr., Attorney at Law, Lafayette, Louisiana, for Defendani/Appel-lant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.
   WALTER J. ROTHSCHILD, Judge.

1 ¡¡The parties, Sheldon and Melinda Vincent, were married on June 17, 1978. On March 2, 2004, Mr. Vincent filed a Petition for Divorce, and a Judgment of Divorce was granted on April 27, 2005. Ms. Vincent filed a Petition for Partition Community Property on January 4, 2005.

On November 15, 2005, the parties, along with their respective attorneys, appeared before the trial court. At that time, the attorneys indicated that the parties reached a consent agreement regarding their community property. The attorneys read the terms of the consent agreement into the record. Thereafter, Mr. and Ms. Vincent were sworn in and they both agreed to the terms of the consent judgment.

On January 20, 2006, Mr. Vincent filed a “Rule for Contempt, to Compel Signing of Settlement Document, For Attorney’s Fees and Costs, and Request for Expedited Hearing,” asserting that Ms. Vincent would not sign the written consent | .^judgment. The matter was set for hearing on January 31, 2006. On that date, the trial judge read and signed the consent judgment. The judgment was also signed by Mr. Vincent and his attorney, but was not signed by Ms. Vincent or her attorney. Ms. Vincent filed a Motion for Appeal on February 24, 2006.

On appeal, Ms. Vincent argues that the trial judge erred in “granting a Consent Judgment when misrepresentation and fraud were utilized by a party to induce the terms of the Consent Judgment between the parties.” Mr. Vincent filed a Motion to Dismiss Appeal on August 21, 2006. He contends that Ms. Vincent does not have the right to appeal a consent judgment. He further argues that filing an appeal is not the proper procedure to assert a nullity action based on fraud or misrepresentation. We agree.

Once a consent judgment has been read into the record, it becomes a legal and enforceable judgment. Trahan v. Coca Cola Bottling Company United, Inc., 04-0100 (La.3/2/05), 894 So.2d 1096, 1104; Parish of Jefferson v. Lafreniere Park Foundation, 98-345 (La.App. 5 Cir. 9/15/98), 720 So.2d 359, 363; writ denied, 98-2598 (La.10/28/98), 723 So.2d 965. LSA-C.C.P. art.2085 provides as follows:

An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

At the November 15, 2005 hearing, Ms. Vincent agreed that the settlement agreement had been explained to her and that she was satisfied that it was a fair and complete resolution of the parties’ community property claims. She further ^acknowledged that the agreement “would be a consent judgment that is not appeal-able.”'

In her brief on appeal, Ms. Vincent admits that both parties agreed to the terms of the agreement in open court when it was read into the record, and they understood that the agreement would be put into a written consent judgment. However, she asserts that the consent judgment is invalid, because Mr. Vincent “committed fraud by misrepresentation and suppression of information” when he agreed to the terms of the agreement.

Ms. Vincent contends that the consent judgment should be annulled due to fraud and misrepresentations by Mr. Vincent. However, an appeal is not the appropriate remedy to attempt to annul a consent judgment. Lee v. Marksville Ford L/M, Inc., 99-405 (La.App. 3 Cir. 5/19/99), 741 So.2d 122, 123. Further, an appeal cannot be used as a substitute for an action in nullity. Phillips v. Space Master International, Inc., 96-877 (La.App. 5 Cir. 5/14/97), 696 So.2d 64, 66. Accordingly, under these circumstances, Ms. Vincent’s appeal must be dismissed.

Mr. Vincent argues that Ms. Vincent filed a frivolous appeal, and he seeks an award of damages, attorney fees, and costs, pursuant to LSA-C.C.P. art. 2164. Based on our review of the record, we do not find that such an award is warranted or equitable.

APPEAL DISMISSED.

GUIDRY, J., concurs with reasons.

GUIDRY, J.,

concurring with reasons:

hi agree with the result of the majority-decision; that the trial court’s entry of a signed judgment, based on the consent agreement dictated into the record, is allowed to stand. However, after reviewing the case on the merits, I would reach this result by affirming the trial court judgment since there is nothing in the record to support the appellant’s claims, rather than by dismissing the appeal.

      . The record does not contain a transcript or minute entry dated January 31, 2006 from the trial court. The transcript and minute entry in the record from January 31, 2006 are from Commissioner's Court and indicate that the matter was continued without date.


text:
    Jennifer VICKNAIR as Natural Tutrix of her Minor Son Trevor Greiner, and Ross A. Louque as Administrator of the Estate of his Minor Son Trevor Louque v. ST. JAMES PARISH SCHOOL BOARD.
    No. 06-CA-381.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Ricky L. Babin, Assistant District Attorney, 23rd Judicial District Court, Gonzales, Louisiana, for Defendant/Appellant.
    Robert D. Levenstein, Attorney at Law, LaPlace, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12This is an appeal by the St. James Parish School Board (Board) from a judgment ordering indemnification to a teacher found to be liable in solido with the Board for damages to a student. For reasons that follow, we affirm.

The underlying action is a suit for damages filed by the parents of two minor children who sustained minor injuries when Allison Criddle, a Board employee, pinched and shoved them as they attempted to throw their plates away in the school cafeteria. After a trial on the matter, the court found the Board liable and awarded general damages, as well as damages for mental anguish to both children. The Board appealed the matter. On review this Court held Criddle liable in solido with the Board and affirmed the award of damages.

Subsequently, plaintiffs filed a “Petition for garnishment and annexed interrogatories” which resulted in a judgment of garnishment, and a “Motion for ^examination of judgment debtor.” Criddle filed a “Rule to show cause for indemnification, suspension of garnishment, and for attorney fees, costs and damages,” in which she sought a cessation of garnishment, and asserted a right to full indemnification from the Board pursuant to La. R.S. 17:416.4.

The Board filed for a protective order arguing that the judgment debtor examination must be limited to the issue of whether an appropriation has been made to pay the judgment. Criddle opposed the motion as it related to the issue of indemnity. The Board also filed dilatory exceptions of unauthorized use of summary proceeding, and of improper cumulation of actions, and a peremptory exception of no cause of action.

At the hearing, Criddle acknowledged that the two dilatory exceptions had merit and, with consent of the Board, severed the portion of the pleading regarding damages from the issue of indemnification.

The Board’s argument before the bench in the trial court was twofold and combined an argument on the merits of the indemnification issue with an argument on the exception of no cause of action as to the judgment debtor rule. As to the Umerits of the right to indemnification, the Board acknowledged that the judgment against Criddle did not made a “specific decree in the judgment that the action of the employee was maliciously, willfully, and deliberately intended to cause bodily harm or to harass or intimidate the student” as provided for in the applicable statute. However, the Board asserted that the statute should be interpreted to exclude indemnification when the action by the employee is intentional as a matter of public policy.

In support of the no cause of action exception, the Board argued that, should a judgment of indemnification be entered, as a public entity it cannot be compelled to pay. Consequently, there can be no judgment debtor rule against it.

The trial court heard arguments of both parties and ultimately decided to grant the protective order filed by the Board regarding the judgment debtor rule. The court also rendered a judgment, in which it found that the Board is obligated to indemnify Criddle, and further ordered the suspension of the garnishment of Criddle’s wages. Finally, the court decreed that the exceptions were satisfied. The Board appeals the judgment on the issue of indemnification. Criddle seeks sanctions for frivolous appeal.

La. R.S. 17:416.4 A, reads in pertinent part as follows:

.Should any such employee be cast in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment.

It is clear from the above that indemnification by the Board of an employee is mandatory. The exception to that is contained in La. R.S. 17:416.4 C which provides as follows:

C. Nothing in this Section shall require a school board to indemnify an employee against a judgment wherein there is a specific decree in the judgment that the action of the employee was maliciously, willfully, and deliberately intended to cause bodily harm or to harass or intimidate the student.

| sThe issue before the Court is the correct interpretation of La. R.S. 17:416.4 C. The statute makes it clear that there must be a “specific decree in the judgment” that the actions of the employee were malicious, willful or “deliberately intended to cause bodily harm or to harass or intimidate the student.” The original judgment in the underlying action did not make a finding of liability on the part of Criddle; therefore, there was no such decree in the judgment. Further, although she was found liable in solido by this Court in the appeal, we made no such decree.

In making his decision, the trial court judge gave oral reasons that have been transcribed and are before this Court. In those reasons the trial judge stated:

I’ll tell you this, for the record, and for appeal purposes or whatever, I did not make those statements in the judgment. I will specifically say right now it was not the court’s intent to infer that her acts were malicious, willful or deliberate.

Given the clear requirement of the statute that a “specific decree” must be made to relieve the Board of its duty to indemnify an employee, we find the trial court was correct in its interpretation of the law and the resulting judgment. See: Haley v. McManus, 593 So.2d 1339 (La.App. 1 Cir.1991).

Criddle asks this Court to award damages for frivolous appeal. However, the failure either to cross-appeal or to answer the appeal precludes us from considering that argument. La.C.C.P. Arts. 2082, 2133.

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

AFFIRMED AND REMANDED.

      . Vicknair et al. v. St. James Parish School Board, 05-149 (La.App. 5 Cir. 6/28/05), 907 So.2d 820 (J. Daley dissents)

      . A. In addition to the provisions of R.S. 17:416.1(C), 416.3(B) and (C)(2)(a), and 416.6(B), should any public school employee be sued for damages by any student or any person qualified to bring suit on behalf of any student based on any action or statement or the omission of any action or statement by such employee when in the proper course and scope of his duties as defined by the school board employing such employee, then it shall be the obligation of said school board to provide such defendant with a legal defense to such suit including reasonable attorney fees, investigatory costs, and other related expenses. Should any such employee be cast in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment including all principal, interest, and costs, except that the school board shall not be responsible for any costs which the court stipulates are to be borne by a party other than the employee or school board.
      B.If the school board provided the defense and the judgment makes an award to the employee for damages or other awards for costs or any fees, the employee shall reimburse the school board for its costs incurred for the defense. The requirement of reimbursement by the employee shall not exceed the award received by the employee.
      C. Nothing in this Section shall require a school board to indemnify an employee against a judgment wherein there is a specific decree in the judgment that the action of the employee was maliciously, willfully, and deliberately intended to cause bodily harm or to harass or intimidate the student.
      D. It shall be the responsibility of each city and parish school board to notify its employees of the provisions for legal defense and indemnification as provided in this Section and to provide such information in writing in a clear and concise manner to its employees on an annual basis prior to the beginning of each school year.
      E. For purposes of this Section, the term city and parish school board shall include the municipal school systems recognized by the provisions of Article VIII, Section 13(D) of the Constitution of Louisiana.

      . Vicknair et al. v. St. James Parish School Board, supra.