source: Caselaw Access Project

author: PER CURIAM. JOHNSON, J.

license: Public Domain

text:
    B.W.S., JR.; T.A.S. as Administrators of the Estate of M.T.S. v. LIVINGSTON PARISH SCHOOL BOARD and Randy Pope, Superintendent of Livingston Parish School Board, Cecil Picard, Louisiana Department of Education, State Board of Elementary and Secondary Education.
    No. 2006-CC-1981.
    Supreme Court of Louisiana.
    Aug. 16, 2006.
   PER CURIAM.

|Jn November 2005, M.T.S., then an eighth grade student at a Livingston Parish junior high school, was expelled from school for twelve months. In June 2006, plaintiffs, the parents of M.T.S., filed a petition for injunctive relief against the Livingston Parish School Board (“Board”) and others. Essentially, plaintiffs sought an order requiring that the Board evaluate M.T.S. for placement in the 9th grade, taking into account her home schooling, and that it provide her with alternative education beginning August 9, 2006. The trial court conducted a hearing on July 31, 2006, which was attended by plaintiffs’ counsel only. At the conclusion of the hearing, the trial court denied plaintiffs’ request for relief, finding the request was premature “due to the fact the child will not complete her expulsion until November 2006....”

Plaintiffs sought supervisory review of this ruling. The court of appeal issued an “Interim Order” on August 3, 2006 directing the Board to file a supplemental brief responding to seven specific inquiries. On August 8, 2006, the court of appeal granted plaintiffs’ writ application and issued specific orders granting relief to plaintiffs. The Board now seeks expedited review of the court of appeal’s ruling.

| ¡Without passing on the merits of the court of appeal’s disposition, we find the court of appeal committed procedural error in this case. It is well-settled that appellate courts are limited to the record developed in the trial court and are prohibited from receiving new evidence. La. Code Civ. P. art. 2164; Gallagher v. Gallagher, 248 La. 621, 181 So.2d 47 (1965). In the present matter, the court of appeal clearly went beyond the record when it ordered the Board to file a supplemental brief addressing issues not developed before the trial court. The court of appeal then relied on the information contained in this supplemental brief, as well as in plaintiffs’ brief, in fashioning its remedy in this case. While the court of appeal’s action was well intentioned in light of the expedited nature of these proceedings, we find a departure from proper appellate procedure that mandates this court’s intervention.

Accordingly, the writ is granted. The judgment of the court of appeal is vacated and set aside. The case is remanded to the trial court for an expedited hearing upon proper notice to all parties. At the hearing, the trial court is directed to receive appropriate evidence from the parties and render a judgment addressing all relevant issues, including, but not limited to, whether the Board has an obligation to provide alternative education to M.T.S. pursuant to La. R.S. 17:416.

CALOGERO, C.J., and KIMBALL, J., would deny the writ application.

JOHNSON, J., would deny the writ application and assigns reasons.

JOHNSON, J.

would deny the writ application for the following reasons:

hThe loss of an entire school year is a tremendous hardship. Expulsion from the system is the most severe punishment, and I doubt that expulsion was warranted from the facts presented here.

In the event of expulsion, La.Rev.Stat. § 17:416(A)(2)(c) mandates that the local school district provide an alternative education to the expelled student. The Livingston Parish School District has not only ignored the statutory mandates, the system has refused to cooperate with the family’s effort at home schooling.

I would affirm the action taken by the court of appeal rather than cause this student any additional irreparable injury. The course suggested by the majority may very well result in this student losing a second school year.

      . The Board represents that it did not receive notice of this hearing.


text:
    In re James Charles HARRIS III.
    No. 2006-OB-1761.
    Supreme Court of Louisiana.
    July 17, 2006.
   In re Harris, James Charles III; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2006. Within fifteen days of notification that he has satisfactorily passed this examination, petitioner may file a brief with this Court, supported by appropriate documentary evidence, explaining the details of the delinquent financial matters.

JOHNSON, J., recused.

TRAYLOR, J., would deny the petition.


text:
    In re Eric W. CLAVILLE.
    No. 2006-OB-1788.
    Supreme Court of Louisiana.
    July 18, 2006.
   In re Claville, Eric W.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2006. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the application.


text:
    In re Troynel Boudy WRIGHT.
    No. 2006-OB-1790.
    Supreme Court of Louisiana.
    July 18, 2006.
   In re Wright, Troynel Boudy; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2006. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the application.


text:
    In re Michael J. WILLIAMSON.
    No. 2006-OB-1789.
    Supreme Court of Louisiana.
    July 18, 2006.
   In re Williamson, Michael J.; — Plaintiff; Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2006. Upon satisfactorily passing the examination, petitioner may apply to this court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this court as to whether petitioner has the appropriate character and fitness to be admitted to the bar and allowed to practice law in the State of Louisiana.

TRAYLOR, J., would deny the application.


text:
    In re Darren M. BENDER.
    No. 2006-OB-1796.
    Supreme Court of Louisiana.
    July 19, 2006.
   In re Applying for Permission to Take Bar Examination.

Granted. Petitioner is allowed to take the Louisiana State Bar Examination in July 2006. Upon satisfactorily passing the examination, Petitioner may apply to this Court for the appointment of a commissioner in accordance with Supreme Court Rule XVII, Section 9, to take evidence and report to this Court as to whether petitioner has the appropriate character and fitness to be admitted to the Bar and allowed to practice law in the State of Louisiana.


text:
    Regina Soniat TALTON, et al. v. USAA CASUALTY INSURANCE COMPANY, et al.
    No. 2006-CC-2150.
    Supreme Court of Louisiana.
    Aug. 28, 2006.
   In re United Services Automobile Assn.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. J, No. 2005-12956(245); to the Court of Appeal, Fourth Circuit, No. 2006-C-1137.

Denied.

VICTORY, J., would grant the writ.


text:
    STATE of Louisiana v. Jonathan WEBB. State of Louisiana v. Kenneth Harvey. State of Louisiana v. Floyd Hall. State of Louisiana v. Donna R. Burn.
    No. 2006-KK-2123.
    Supreme Court of Louisiana.
    Aug. 30, 2006.
   In re Harvey, Kenneth; Hall, Floyd; Burn, Donna R.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Jackson, 2nd Judicial District Court Div. B, Nos. 40,267, 39,070, 39,744, 40,070; to the Court of Appeal, Second Circuit, No(s). 41756-KW, 41757-KW, 41758-KW, 41759-KW.

Denied.


author: JOHNSON, J.,

text:
    STATE of Louisiana v. Stacey Lynette HUGHES.
    No. 2006-KK-2163.
    Supreme Court of Louisiana.
    Aug. 30, 2006.
   In re Hughes, Stacey Lynette; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, No. 279790; to the Court of Appeal, Third Circuit, No. KW 06-00865.

Denied.

JOHNSON, J.,

would grant the writ application. I would reverse the rulings of the court of appeal and the trial court and grant the defendant’s motion to suppress. While the police officer had probable cause for this investigatory stop, when it became clear that the driver of the vehicle and the passenger had no outstanding warrants, there was no probable cause for the search of the vehicle.


text:
    STATE of Louisiana v. Fredrick NETTER.
    No. 2006-KH-1919.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Netter, Fredrick; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 12-03-359.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F). The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE of Louisiana v. Gerard MAGEE.
    No. 2006-KH-1757.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Magee, Gerard; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 458-086; to the Court of Appeal, Fourth Circuit, No(s). 2006-K-0275, 2006-K-0415, 2006-K-0105, 2006-K-0630.

Granted for the sole purpose of transferring the filing to the district court for its consideration under La.C.Cr.P. art. 701(F). The district court is directed to provide this Court with a copy of its ruling.


text:
    STATE ex rel. Carl JOHNSON, Sr. v. STATE of Louisiana.
    No. 2006-KH-0329.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Johnson, Carl Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 278527; to the Court of Appeal, First Circuit, No. 2004 KW 2641.

Writ granted in part; otherwise denied; case remanded to the district court. The district court is directed to reexamine the timeliness of relator’s application for post-conviction relief in light of the fact that relator’s conviction and sentence did not become final until this Court denied writs in January, 2003. See State v. Johnson, 02-0306 (La.1/24/03), 836 So.2d 36; La. C.Cr.P art. 921. In all other respects the application is denied.

WEIMER, J., recused.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 04-PDB-069.
    No. 2005-OB-0766.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Baird, Brian; — Plaintiff; Applying for Appeal of Decision of Disciplinary Board. Office of Disciplinary Board, No. 04-PDB-069.

Leave to appeal denied.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 05-PDB-010.
    No. 2005-OB-1646.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Tilman, Terry D.; — Plaintiff; Applying for Appeal of Decision of Disciplinary Board No. 05-PDB-010.

Leave to appeal denied.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 05-PDB-125.
    No. 2006-OB-0216.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Williams, Morris J.; — Plaintiff; Applying for Appeal of Decision of Disciplinary Board Office of Disciplinary Board, No. 05-PDB-0125.

Leave to appeal denied.


text:
    In re APPEAL OF DECISION OF DISCIPLINARY BOARD NO. 05-PDB-144.
    No. 2006-OB-0486.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re McCastle, Perón; — Other; Applying for Appeal of Decision of Disciplinary Board Office of Disciplinary Board, No. 05-PDB-144.

Leave to appeal denied.


text:
    In re APPEAL OF DECISION OF THE DISCIPLINARY BOARD NO. 05-PDB-145.
    No. 2006-OB-1397.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Troselair, Brian, et ux; Trosclair, Penny; — Plaintiff(s); Applying for Appeal of Decision of the Disciplinary Board Office of the Disciplinary Board, No. 05-PDB-145.

Leave to appeal denied.


text:
    STATE of Louisiana v. Wade KNOTT, Jr.
    No. 2005-K-2252.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Knott, Wade, Jr.; Defendant; Applying for Rehearing of this Court’s action dated May 5, 2006, Parish of St. Martin, 16th Judicial District Court, Div. F, No. 99-193524; to the Court of Appeal, Third Circuit, No. 04-1594.

Rehearing denied.


text:
    Edward BUGGAGE v. VOLKS CONSTRUCTORS, A Division of AKM, LLC., ABC and XYZ Insurance Companies and John Fridge.
    No. 2006-C-0175.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Buggage, Edward; — Plaintiff; Applying for Rehearing of this Court’s action dated May 5, 2006; Parish of Ascension, 23rd Judicial District Court Div. E, No. 74,799; to the Court of Appeal, First Circuit, No. 2004 CA 1369.

Rehearing denied.


text:
    In re CONFIDENTIAL PARTY.
    No. 2006-B-1335.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Confidential Party; — Plaintiff; Applying for Rehearing of this Court’s order dated June 20, 2006, Joint Petition for Consent Discipline.

Rehearing denied.


text:
    George FIELDS, et al. v. Kerry CALLAHAN, et al.
    No. 2006-CC-0443.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Universal Compression Inc.; Zurich American Insurance Co. and American Guarantee & Liability Company:Defendant(s); Applying for Reconsideration of this Court’s order dated April 28, 2006; Parish of Orleans, Civil District Court Div. D, No. 04-00018; to the Court of Appeal,Fourth Circuit, No. 2005-C-1388.

Not considered. See Rule IX, Section 6.


text:
    EMERGENCY PHYSICIANS ASSOCIATION v. Lawrence C. LEVENTHAL, M.D. and J. Thomas Miceli, M.D. Emergency Physicians Association v. Our Lady of the Lake Regional Medical Center, et al.
    No. 2006-C-0907.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Emergency Physicians Association; -Plaintiff; Applying for Reconsideration of this Court’s action dated June 16, 2006, Parish of E. Baton Rouge, 19th Judicial District Court, Div. I, Nos. 267-086, 267-087; to the Court of Appeal, First Circuit, Nos. 2005 CA 1064, 2005 CA 1063.

Not considered. See Rule IX, Section 6.


text:
    In re GRAMERCY PLANT EXPLOSION AT KAISER. (Lodged as Carl Bell, et al.) v. Kaiser Aluminum and Chemical Corporation.
    No. 2006-C-1003.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Kaiser Alumina & Chemical Corporation; AXA Global Risks (U.K.) et al.; Applying for Reconsideration of this Court’s action dated June 14, 2006; Parish of St. James, 23rd Judicial District Court Div. D, No. 25,975 and all other consolidated numbers; to the Court of Appeal, Fifth Circuit, No(s). 04-CA-1151, 04-CA-1152 THROUGH 04-CA-1191.

Application for reconsideration not considered. See Supreme Court Rule IX, Section 6.


text:
    Debra L. LEARD v. William P. SCHENKER, Jr.
    No. 2006-C-1075.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Leard, Debra L.¡Defendants); Applying for Reconsideration of this Court’s order dated June 16, 2006; Parish of Orleans, Civil District Court Div. E, No. 95-08881, to the Court of Appeal, Fourth Circuit, No. 2005-CA-1125.

Not considered. See S.Ct. Rule IX, Section 6.


text:
    Elijah A. ALEXANDER, Jr. v. LOUISIANA LEGAL SYSTEM, et al.
    No. 2006-CP-1076.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Alexander, Elijah A. Jr.; — -Plaintiff; Applying for Reconsideration of this Court’s action dated June 23, 2006; Parish of Ouachita, West Monroe City Court, Nos. 86494, 86495.

Application for reconsideration not considered. See Supreme Court Rule IX, Section 6.

TRAYLOR, J., recused.


text:
    Helen Barrios CALLENDER v. Joseph I. CALLENDER.
    No. 2006-OC-0886.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In Re Callender, Helen Barrios;Plaintiff(s) Applying For Reconsideration of an Order of this Court dated June 2, 2006; 24th Judicial District Court, Div. A. No. 382-496; to the Court of Appeal, Fifth Circuit, No.(s) 05-CA-603.

Stay denied. Application for reconsideration not considered. See S.Ct. Rule XI, Section 6.


text:
    STATE of Louisiana v. Jonathan MILLS.
    No. 2005-KP-1385.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Mills, Jonathan; — Defendant; Applying for Reconsideration of this Court’s action dated January 13, 2006, Parish of Orleans, Criminal District Court Div. D, No. 366-626; to the Court of Appeal, Fourth Circuit, No. 2005-K-0420.

Reconsideration denied.


text:
    STATE of Louisiana v. Alfred S. FLEMING.
    No. 2005-KO-1715.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Alfred S. Fleming; — Defendant; Applying for Reconsideration of this Court’s action dated February 10, 2006, Parish of Jefferson, 24th Judicial District Court, Div. H, No. 02-4428; to the Court of Appeal, Fifth Circuit No. 04-KA-1218.

Reconsideration denied.


text:
    STATE of Louisiana v. Frederick L. CONDLEY, Kendrick Williams.
    No. 2005-K-1760.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Kendrick Williams, Applying for Reconsideration of this Court’s Order dated February 10, 2006; Parish of Jefferson, 24th Judicial District Court, Div. G, No. 03-6987; to the Court of Appeal Fifth Circuit, No. 04-KA-1349.

Reconsideration denied.


text:
    STATE of Louisiana v. Tyrone INGRAM.
    No. 2005-KO-2117.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Ingram, Tyrone; — Defendant; Applying for Reconsideration of this Court’s action dated March 10, 2006, Parish of Terrebonne, 32nd Judicial District Court Div. E, No. 422,169; to the Court of Appeal, First Circuit, No. 2004 KA 1602.

Reconsideration denied.


text:
    CREATIVE RISK CONTROLS, INC., et al. v. COMPENSATION AND BENEFITS CONSULTING SERVICES, LLC, et al.
    No. 2006-CC-1924.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Powell Insurance Agency, Inc.; Powell, Bennette E.; — Plaintiff(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. G, No. 2005-1694; to the Court of Appeal, Fourth Circuit, No. 2006-C-0757.

Not considered. Not timely filed. See Supreme Court Rule X, Section 5(a). In light of this disposition, relators’ motion to file certain exhibits to the application under seal is denied as moot. The clerk of court is directed to return these exhibits to relators.


text:
    Kerry Jude LEBLANC v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 2006-CC-1605.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Transportation and Development, Department of; Louisiana, State of et al.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. C, No. 59,338; to the Court of Appeal, Fifth Circuit, No. 06-C-324.

Stay denied. Writ denied.

VICTORY, J., would grant.


text:
    Christel WILLIAMS v. A DAY TO REMEMBER INVITATIONS, L.L.C. (a/k/a a Day to Remember a/k/a a Day to Remember Garden Club) and Dawn Waterhouse.
    No. 2006-CC-2192.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Williams, Christel; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 625-575; to the Court of Appeal, Fifth Circuit, No. 06-C-634.

Stay denied; Writ denied.


text:
    STATE ex rel. George Stanley ROLAND, III v. STATE of Louisiana.
    No. 2004-KH-0531.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Roland, George Stanley III;— Plaintiff; Applying for Motion to Enforce Order of this Court dated April 1, 2005, Parish of Caddo, 1st. Judicial District Court Div. “G”, Nos. 217,036; 187.196; 217,036; to the Court of Appeal, Second Circuit Nos. 38369-KH, 38397-KH, 36786-KA.

Denied. Moot the district court has acted.


text:
    Ricky Joseph ALEX v. Richard L. STALDER.
    No. 2006-CI-0012.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Alex, Ricky Joseph; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 514,936; to the Court of Appeal, First Circuit, No. 2004 CA 1391.

Denied.


text:
    STATE of Louisiana v. Paul CLARKE.
    No. 2006-K-0232.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Clarke, Paul; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. C, No. 3-01-876; to the Court of Appeal, First Circuit, No. 2005 KA 0023.

Denied.

CALOGERO, C.J., would grant the writ.


text:
    STATE of Louisiana v. Donald R. MAGEE.
    No. 2006-K-0240.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Magee, Donald R.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. E, No. 01-CR1-83302; to the Court of Appeal, First Circuit, No. 2005 KA 624.

Denied.


text:
    STATE of Louisiana v. Quincy LEE.
    No. 2006-KO-0247.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Lee, Quincy; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Bossier, 26th Judicial District Court Div. E, No. 117,553; to the Court of Appeal, Second Circuit, No. 39,969-KA.

Denied.


text:
    STATE of Louisiana v. Willie SMITH.
    No. 2006-KO-0248.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Smith, Willie; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. F, No. 02-6486; to the Court of Appeal, Fifth Circuit, No. 05-KA-203.

Denied.


text:
    STATE ex rel. James ENCARDES v. STATE of Louisiana.
    No. 2006-KH-0276.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Encardes, James; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. J, No. 359963-1; to the Court of Appeal, First Circuit, No. 2004 KA 1251.

Denied.


text:
    STATE of Louisiana v. Vernon CALLIER.
    No. 2006-KO-0308.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Callier, Vernon; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Madison, 6th Judicial District Court Div. A, No. 101379; to the Court of Appeal, Second Circuit, No. 39,-650-KA.

Denied.


text:
    STATE of Louisiana v. Donald COGSWELL, Jr.
    No. 2006-K-0314.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Cogswell, Donald Jr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Calcasieu, 14th Judicial District Court Div. E, No. 22882-00; to the Court of Appeal, Third Circuit, No. 05-510.

Denied.


text:
    STATE of Louisiana v. James Tippett RANDELL.
    No. 2006-KO-0326.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Randell, James Tippett; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. I, No. 221261; to the Court of Appeal, Second Circuit, No. 40,014-KA.

Denied.


text:
    STATE ex rel. Robert MARCOTTE v. STATE of Louisiana.
    No. 2006-KH-0344.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Marcotte, Robert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 99-153,465; to the Court of Appeal, First Circuit, No. 2005 KW 1311.

Denied.


text:
    STATE ex rel. Eric LARA, Sr. v. LOUISIANA STATE PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 2006-CI-0410.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Lara, Eric Sr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 534,463; to the Court of Appeal, First Circuit, No. 2005-CW-2194.

Denied.


text:
    STATE ex rel. Gail Sue WILLARS v. STATE of Louisiana.
    No. 2006-KH-0455.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Willars, Gail Sue; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Bossier, 26th Judicial District Court Div. D, No. 68,208; to the Court of Appeal, Second Circuit, No. 40892-KH.

Denied.


text:
    STATE ex rel. Chris LEPINE v. STATE of Louisiana.
    No. 2006-KH-0456.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Lepine, Chris; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. F, No. 354165; to the Court of Appeal, First Circuit, No. 2005 KW 1217.

Denied.


text:
    STATE ex rel. John H. FREEMAN v. STATE of Louisiana.
    No. 2006-KH-0467.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Freeman, John H.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. F, No. 99-F1112; to the Court of Appeal, Second Circuit, No. 40454-KH.

Denied.


text:
    STATE ex rel. Earl WEAVER v. STATE of Louisiana.
    No. 2006-KH-0473.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Weaver, Earl; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 395-683; to the Court of Appeal, Fourth Circuit, No. 2005-K-0940.

Denied. La.C.Cr.P art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Curtis J. DARGIN v. STATE of Louisiana.
    No. 2006-KH-0493.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Dargin, Curtis J.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Landry, 27th Judicial District Court Div. D, No. 01-K-4313D; to the Court of Appeal, Third Circuit, No. KA 04-1207.

Denied.


text:
    STATE ex rel. Jean Alan ROUX v. STATE of Louisiana.
    No. 2006-KH-0494.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Roux, Jean Alan; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Cameron, 38th Judicial District Court Div. 0, No. 42874; to the Court of Appeal, Third Circuit, No. KH 05-00918.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kenneth Paul JONES v. STATE of Louisiana.
    No. 2006-KH-0496.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Jones, Kenneth Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. C, Nos. 98-1530, 98-1797; to the Court of Appeal, Second Circuit, No. 40530-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Morris WELLS v. STATE of Louisiana.
    No. 2006-KH-0512.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Wells, Morris; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 93-0440; to the Court of Appeal, Fifth Circuit, No. 05-KH-914.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694; La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Woodrow A. RUCKS v. STATE of Louisiana.
    No. 2006-KH-0517.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Rucks, Woodrow A.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. G, No. 04-F0314; to the Court of Appeal, Second Circuit, No. 40,-124-KA.

Denied.


text:
    STATE ex rel. Kerry STEWART v. STATE of Louisiana.
    No. 2006-KH-0519.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Stewart, Kerry; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. John, 40th Judicial District Court Div. C, No. 2001-259; to the Court of Appeal, Fifth Circuit, No. 05-KH-957.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Kevin STEWART v. STATE of Louisiana.
    No. 2006-KH-0521.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Stewart, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. C, Nos. 235,274, 238,-927; to the Court of Appeal, First Circuit, No. 2005 KW 2111.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.

WEIMER, J., recused.


text:
    STATE ex. rel. Dorothy PIERRE v. STATE of Louisiana.
    No. 2006-KH-0522.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Pierre, Dorothy; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 11-99-494; to the Court of Appeal, First Circuit, No. 2005 KW 2015.

Denied.


text:
    STATE ex rel. Willie Carl JONES, Jr. v. STATE of Louisiana.
    No. 2006-KH-0524.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Jones, Willie Carl Jr.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. C, No. 175875; to the Court of Appeal, Second Circuit, No. 40,-888-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Mario CHARLES v. STATE of Louisiana.
    No. 2006-KH-0526.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Charles, Mario; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 345,943; to the Court of Appeal, First Circuit, No. 2005 KW 1552.

Denied.


text:
    STATE ex rel. Russell FRANCIS v. STATE of Louisiana.
    No. 2006-KH-0527.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Francis, Russell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. D, No. 03-161,543; to the Court of Appeal, First Circuit, No. 2005 KW 1721.

Denied. La.C.Cr.P. art. 930.3; State ex. rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172.


text:
    STATE ex rel. Derrick Paul GUIDRY v. STATE of Louisiana.
    No. 2006-KH-0529.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Guidry, Derrick Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. F, No. 01-CR-90265; to the Court of Appeal, Third Circuit, No. KH 05-00800.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Shon COLLINS v. STATE of Louisiana.
    No. 2006-KH-0530.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Collins, Shon; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 266,521; to the Court of Appeal, Third Circuit, No. KH 05-00229.

Denied.


text:
    STATE ex rel. Kevin PETERSON v. STATE of Louisiana.
    No. 2006-KH-0531.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Peterson, Kevin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Claiborne, 2nd Judicial District Court Div. B, No. 36,507; to the Court of Appeal, Second Circuit, No. 40535-CW.

Denied.

WEIMER, J., recused.


text:
    STATE ex rel. Huey O. WYATT v. STATE of Louisiana.
    No. 2006-KH-0532.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Huey O. Wyatt; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Winn, 8th Judicial District Court Div. A, No. 40,072; to the Court of Appeal, Second Circuit, No. 40826-KH.

Denied.


text:
    STATE ex rel. Carlos Dewayne WADE v. STATE of Louisiana.
    No. 2006-KH-0533.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Wade, Carlos Dewayne; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. A, No. 209,434.

Denied.


text:
    STATE ex rel. Tut SIMMONS v. STATE of Louisiana.
    No. 2006-KH-0705.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Simmons, Tut; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. O, No. 02-3281; to the Court of Appeal, Fifth Circuit, No. 05-KH-996.

Denied.


text:
    George FIELDS v. Kerry CALLAHAN.
    No. 2006-CC-0947.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Fields, George et al.; Fields, Alfreda; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, Nos. 04-00018, 2004-1919, 2004-1943; to the Court of Appeal, Fourth Circuit, No. 2005-C-0952.

Denied.


text:
    CARRIERE-STUMM, INC. v. Michael CHIANTELLA.
    No. 2006-CC-0960.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Carriere-Stumm Inc.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 2002-19797; to the Court of Appeal, Fourth Circuit, No. 2005-C-1523.

Denied.


text:
    George FIELDS, et al. v. Kerry CALLAHAN, et al.
    No. 2006-CC-0964.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Zurich American Insurance Company; Universal Compression Inc.; Arner-ican Guarantee & Liability Company;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, Nos. 04-00018, 2004-1919, 2004-1943; to the Court of Appeal, Fourth Circuit, No. 2006-C-0182.

Denied.


text:
    STATE of Louisiana v. Douglas BLANCHARD.
    No. 2006-KK-0977.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re State of Louisiana; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. G, No. 01-157273; to the Court of Appeal, First Circuit, No. 2005 KW 2666.

Denied.

TRAYLOR, J., would grant.


text:
    TRANSCONTINENTAL GAS PIPE LINE CORPORATION; Texas Gas Transmission Corporation; Columbia Gulf Transmission Company; Trunkline Gas Company; Texas Eastern Transmission, LP; Florida Gas Transmission Company and Mississippi River Transmission Corporation v. LOUISIANA TAX COMMISSION; Malcolm A. Price, Jr., in His Capacity as Chairman of the Louisiana Tax Commission; et al. Reliant Energy Arkla; Reliant Energy Entex; and Reliant Energy Gas Transmission Company v. Louisiana Tax Commission; Malcolm A. Price, Jr., in His Capacity as Chairman of the Louisiana Tax Commission; et al.
    No. 2006-C-0988.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Florida Gas Transmission Company; CenterPoint Energy — Mississippi River Transmission Corporation; CenterPoint Energy — Entex; CenterPoint Energy— Arkla; CenterPoint Energy Gas Transmission Company; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, Nos. 491,194, 491,250; to the Court of Appeal, First Circuit, No(s). 05 CA 2605, 05 CA 2604.

Denied.


text:
    Rose A. ROSE v. MAISON DEVILLE CARE CENTER.
    No. 2006-C-1054.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Maison Deville Care Center;— Defendant; Applying for Writ of Certiora-ri and/or Review Office of Workers’ Compensation-District 2, No. 04-03753; to the Court of Appeal, Third Circuit, No. WCA 05-1307.

Denied.

TRAYLOR, J., would grant.


text:
    George A. THARP v. STATE of Louisiana, et al.
    No. 2006-C-1085.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re State of Louisiana et al.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Grant, 35th Judicial District Court Div. A, No. 13093; to the Court of Appeal, Third Circuit, No. 05-1344.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    Donna Zeringue Wife of/and Ray ZERINGUE v. O'BRIEN TRANSPORT, INC., et al.
    No. 2006-C-1107.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Zeringue, Donna et al.; Zeringue, Ray; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of St. Charles, 29th Judicial District Court Div. D, No. 57,277; to the Court of Appeal, Fifth Circuit, No. 05-CA-760.

Denied.


text:
    Linda GENTRY, Adronne Devergne and Josephine Alexander, on Their Behalf, as Well as Others, Similarly Situated v. CAUSEWAY PLAZA, L.L.C., Corporate Realty, Inc., Core Construction Co., L.L.C. Bituminous Ins. Co., Thrasher Waterproofing Co. & Clarendon American Ins. Co.
    No. 2006-CC-1108.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Corporate Realty Inc.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. N, No. 614-434; to the Court of Appeal, Fifth Circuit, No. 06-C-163.

Denied.


text:
    George ALBERT and Theresa Albert v. BATON ROUGE GENERAL HOSPITAL, et al.
    No. 2006-CC-1109.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Schellack, Jon M.D.; Frusha, John M.D.; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. J, No. 538,310; to the Court of Appeal, First Circuit, No. 2006 CW 0236.

Denied.

VICTORY, J., would grant.

TRAYLOR, J., would grant.


text:
    F.M. “Butch” ROBERSON and Pamela Roberson v. LAFAYETTE OILMAN'S SPORTING CLAYS SHOOT, INC., et al.
    No. 2006-C-1120.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Roberson, F.M. “Butch” et ah; Roberson, Pamela; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. D, No. 2002-1084-D; to the Court of Appeal, Third Circuit, No. 05-1285.

Denied.


text:
    Gary OREMAN v. Eleanor Deutsch OREMAN.
    No. 2006-C-1130.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Oreman, Eleanor Deutsch; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. C, No. 461-226; to the Court of Appeal, Fifth Circuit, No. 05-CA-955.

Denied.


text:
    Byron K. PERRILLIAT v. Dr. Daniel BOUCHETTE, et al.
    No. 2006-CC-1149.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Bouchette, Daniel Dr. et al.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. I, No. 2005-8020; to the Court of Appeal, Fourth Circuit, No. 2006-C-0294.

Denied.

TRAYLOR, J., would grant.


text:
    JOHN HAAS WEINSTEIN, APLC v. David DOOLEY, Sr. and Frederick Gossen, Jr.
    No. 2006-C-1150.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Dooley, David Sr.; Gossen, Frederick Jr.; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. C, No. 04-C-1949-C; to the Court of Appeal, Third Circuit, No. 05-1203.

Denied.


text:
    STATE ex rel. Dustin RUNYON v. STATE of Louisiana.
    No. 2006-KH-1348.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Runyon, Dustin; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Catahoula, 7th Judicial District Court Div. B, Nos. 03-736, 03-817; to the Court of Appeal, Third Circuit, No. 2005-36.

Denied.


text:
    STATE ex rel. Tut SIMMONS v. STATE of Louisiana.
    No. 2006-KH-1413.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Simmons, Tut; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. A, No. 02-3281; to the Court of Appeal, Fifth Circuit, No. 06-KH-219.

Denied.


text:
    STATE ex rel. Kenneth Paul JONES v. STATE of Louisiana.
    No. 2006-KH-1417.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Jones, Kenneth Paul; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Desoto, 11th Judicial District Court Div. C, Nos. 98-1530, 98-1797; to the Court of Appeal, Second Circuit, No. 41305-KH.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    Meredith SILMON and Jeff Silmon v. STATE of Louisiana Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, et al.
    No. 2006-CC-1795.
    Supreme Court of Louisiana.
    Sept. 1, 2006.
   In re Sevario, Calvin; Gulf Industries Inc.; Jack B. Harper Contractors Inc.;— Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 515043; to the Court of Appeal, First Circuit, No. 2006 CW 1003.

Denied.

VICTORY, J., would grant.


author: JAMES F. McKAY III, Judge. TOBIAS, J.,

text:
    John J. ABRAM, Jr. and Thais B. Abram v. EPEC OIL COMPANY (f/k/a) Tenneco Oil Company, et al.
    No. 2005-CA-0626.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 2006.
    Rehearing Denied July 25, 2006.

      Lawrence G. Gettys, Baron & Budd, P.C., Baton Rouge, Renee M. Melancon, Baron & Budd, P.C., Dallas, Texas, Glenn E. Diaz, Carlos A. Zelaya II, Chalmette, Louisiana, J. Wayne Mumphrey, Wayne B. Mumphrey, Clayton M. Connors, Mum-phrey Law Firm L.L.C., New Orleans, Louisiana, Cameron R. Waddell, LeBlanc & Waddell, L.L.C., Baton Rouge, Louisiana for Plaintiffs/Appellees.
    John G. Gomila, Jr., Madeleine Fischer, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Defendants/Appellants, El Paso Energy EST Company, trustee for EPEC Oil Company Liquidation Trust, Dean Blackwell, Charles Kilgore and Amos Pollard.
    Richard J. Lorenz, Lorenz & Carter, Richmond, Texas, for Defendants/Appellants, Individual Executive Officers.
    (Court composed of Judge JAMES F. McKAY III, Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD).
   JAMES F. McKAY III, Judge.

_]jln 1941, John J. Abram, Jr. went to work at the Flintkote plant in Chalmette. Mr. Abram worked there until 1961 except for two intervals: to serve in the military in 1945 and to work for six months at the Tenneco (Bay Petroleum) refinery in Chal-mette. During his employment at Flint-kote, Mr. Abram worked in production of asbestos-containing roofing materials and later as a production supervisor. In 1961, Mr. Abram returned to Tenneco where he worked until his retirement in 1990. During his employment at Tenneco, Mr. Abram worked in areas where he was exposed to asbestos.

In 1995, Mr. Abram was tested and diagnosed with asbestosis. On November 14, 1995, Mr. Abram filed an asbestos-related lawsuit in the Civil District Court for the Parish of Orleans.

On August 9, 2000, Mr. Abram and his wife, Thais B. Abram, filed the instant lawsuit in St. Bernard Parish, asserting a claim for injuries resulting from occupational exposure to asbestos. Included as defendants were EPEC Oil | {.Company fik/a Tenneco Oil Company and a number of executive officers of Tenneco. Mr. Abram died on September 1, 2000. On October 4, 2000, the lawsuit was amended to add a wrongful death and survival action for Mr. Abram’s wife and children.

Prior to trial, the defendants filed an exception of prescription. The executive officer defendants also filed exceptions of no cause of action in so far as there could be no loss of consortium claims or wrongful death claims against them. The trial court never addressed these exceptions. The matter proceeded to trial from January 27-30, 2003 and the trial court entered judgment and issued reasons for judgment on January 9, 2004. The trial court rejected all of the plaintiffs’ intentional tort claims but held that prior to 1976, three of Tenneco’s executive officers (Dean Blackwell, Charles Kilgore, and Amos Pollard) as well as Tenneco itself had been negligent. The trial court awarded: $2,500,000.00 in general damages; $170,146.93 in special damages; $250,000 for Mrs. Abram’s loss of consortium claim; and $150,000.00 for both of his children’s loss of consortium claims. The defendants have appealed the trial court’s judgment and the plaintiffs have answered their appeal.

On appeal, the defendants raise the following assignments of error: 1) the trial court never ruled on defendants’ exception of prescription as to John Abram’s survival action. The trial court erred by failing to rule and should have granted the ^exception; 2) the trial court erred as a matter of law when it held that Abram’s employer, Tenneco, could be liable in negligence if the negligence occurred before 1976 and caused Abram’s asbestos-related injuries; 3) the trial court erred as a matter of law in awarding loss of consortium damages when the court’s liability determination was based upon alleged acts of negligence that occurred in 1976 and earlier when no claim for loss of consortium damages was recognized; 4) although the trial court did not denominate separate damages for wrongful death, the court referred in its judgment to items which can only be characterized as wrongful death damages. The trial court erred as a matter of law in awarding funeral expenses and post-death loss of consortium against Tenneco and its executive officers as they were immune from wrongful death damages for alleged negligence at the time of Abram’s death; 5) the trial court erred by failing to assign virile shares of liability to Garlock, Johns-Manville, Foster-Wheeler and Owens-Corning, all of whom settled with and/or were dismissed by plaintiffs; and 6) the trial court erred in finding Dean Blackwell, Amos Pollard, and Charles Kilgore negligent. The plaintiffs’ lone assignment of error is that the trial court erred in failing to find Tenneco liable for its intentional acts.

A court must strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished. Louisiana Health Serv. and Indem. Co. v. Tarver, 93-2449 (La.4/11/94), 635 So.2d 1090, 1098. In the instant case, Mr. Abram was diagnosed with asbestosis on February 20, 1995. On November 14, 1995, Mr. Abram was a party to an asbestos-related action against Flintkote and 14others filed in the Civil District Court of Orleans Parish. The action in Civil District Court was still pending when the present lawsuit was filed in St. Bernard Parish on August 9, 2000. It is undisputed that Flintkote was a joint tortfeasor with the other defendants in the instant case. Although the defendants argue that the plaintiffs’ lawsuit is prescribed on its face, the burden to prove this is on the defendants. Scott v. Metropolitan Life Ins. Co., 97-1445 (La.App. 4 Cir. 2/11/98), 709 So.2d 223, 225. The defendants have failed to do this. On the other hand, the Abrams submitted a certified copy of the Civil District Court docket sheet, which shows the date the petition was filed and the original defendants, including Flintkote. Flintkote is a solidary obligor with the other defendants in the instant case. Therefore, prescription was interrupted by the timely filing of the Civil District Court action against Flintkote. See La. C.C. art. 1799.

In its reasons for judgment, the trial court states “that only prior to the 1976 amendments to the workers’ compensation laws could Tenneco or its executive officers be liable under tort law for a negligent act that would have caused Mr. Abram is [sic] asbestos related injuries.” That statement, however, is not completely accurate. Prior to 1976, “the workers’ compensation statute provided that compensation was an employee’s exclusive remedy against his employer for a com-pensable injury, leaving him free to pursue other remedies against third parties [executive officers].” Bazley v. Tortorich, 397 So.2d 475, 479 (La.1981). The goal of the 1976 amendment to La. R.S. 23:1032 was to extend to the executive officers of an employer the immunity already enjoyed by the employer under the 1 ssection. See Malone & Johnson, 14 Louisiana Civil Law Treatise: Workers’ Compensation Law and Practice § 361 (2002 ed.). Accordingly, the plaintiffs are free to pursue their claims for Mr. Abram’s pre-1976 exposures to asbestos caused by the negligence of Tenneco’s executive officers but not by Tenneco itself. As such, the trial court erred in finding that Tenneco was liable for any negligent acts that may have caused Mr. Abram’s asbestos-related injuries. The trial court also found that there was not sufficient evidence presented to show intentional acts on the part of Tenne-co or its executive officers. We find nothing manifestly erroneous or clearly wrong in this finding.

As a matter of law, the trial court erred in awarding loss of consortium damages to the plaintiffs when the court’s liability determination was based upon negligent acts that occurred prior to 1976 when no claim for loss of consortium was recognized. Louisiana did not allow claims for loss of consortium until 1982 when Civil Code article 2315 was amended to allow such claims. The application of the loss of consortium law to the defendants’ actions prior to 1976 “would be an impermissible retroactive application of the law because it would go back to the past to evaluate the condition of the legality of the defendants’ conduct, which occurred before the 1982 amendment.” Landry v. Avondale Industries, Inc., 2003-0719 (La.12/3/03), 864 So.2d 117, 124.

The defendants contend that the trial court erred in awarding damages for wrongful death due to some discussion in its reasons for judgment. However, nowhere in the trial court’s judgment are damages awarded for wrongful death. A | ¿trial court’s reasons for judgment, while defining and elucidating a case, form no part of the official judgment it signs and from which appeals are taken. Kaufman v. Adrian’s Tree Service, Inc., 2000-2381 (La.App. 4 Cir. 10/31/01), 800 So.2d 1102, 1104. Accordingly, the defendants’ fourth assignment of error is without merit.

The appellants contend that the trial court erred in not assigning virile shares of liability to Garlock, Johns-Man-ville, Foster-Wheeler and Owens-Corning. The appellants had the burden of proving every element of the settling defendants’ liability at trial. See Raley v. Carter, 412 So.2d 1045, 1047 (La.1982). The trial court found that the appellants failed to meet their burden to prove that any settling defendant other than Flintkote was liable. A “non-settling defendant must prove, not only that a settling defendant manufactured an asbestos containing product, but also that the products were used in such a manner that dust was emitted. Evidence of the mere physical presence of asbestos-containing material is insufficient to find a manufacturer liable to a plaintiff.” Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 642. Accordingly, we find no error in the trial court’s not assigning virile shares of liability to the settling and dismissed defendants.

The appellants also contend that the trial court erred in finding Dean Blackwell, Amos Pollard and Charles Kil-gore negligent. As stated earlier, only prior to the 1976 amendments to the workers’ compensation law could Tenneco’s l7executive officers be liable under tort law for a negligent act that would have caused Mr. Abram’s asbestos related injuries. In determining whether an executive officer will be liable in a case such as this, the test set forth in Canter v. Koehring Co., 283 So.2d 716 (La.1973) and followed by this Court in Hoerner v. ANCO Insulations, Inc., 2000-2333 (La.App. 4 Cir. 1/23/02), 812 So.2d 45 is used. Specifically, liability may be imposed if the executive officer had some direct duty to provide the plaintiff a safe place to work, including some control over purchase and availability of equipment and supplies. Id. at 63-64.

Dean Blackwell was the safety engineer at the Tenneco refinery from 1961 to 1967. Mr. Blackwell had no prior experience or training in safety. As safety engineer, Mr. Blackwell had authority to spend money for safety and to make recommendations to management for the expenditure of money related to safety. However, during his entire time as safety engineer, Mr. Blackwell never made a request for a safety-related budget item.

Charles Kilgore was refinery general manager from 1967 to 1979, during which time every department ultimately reported to him. Mr. Kilgore testified that when it came to safety during this time period, the buck stopped with him. Mr. Kilgore also prepared the refinery’s budgets and was the person in the refinery who had final approval over the budgets.

Amos Pollard testified that until he hired Mr. Blackwell, he was the person responsible for safety at the plant. From 1967 until his retirement in 1975, Mr. Pollard was administrative manager and one of his responsibilities in that role was 1 sSupervision of plant safety. However, Mr. Pollard admitted that during his entire tenure at the refinery, from 1949 until 1975, Tenneco had no program to protect employees from asbestos.

Based on the record before this Court, all three of the aforementioned individuals had some direct duty to provide Mr. Abram with a safe place to work and had some control over the purchase and availability of equipment and supplies. Accordingly, we find no error in the trial court finding them liable.

For the foregoing reasons, we find the plaintiffs’ suit has not prescribed. We reverse the trial court’s finding of any liability on the part of Tenneco. We also reverse the trial court’s awarding of loss of consortium damages to the plaintiffs. We affirm the trial court’s finding of liability on the part of the executive officers in all other respects. Accordingly, we now amend the trial court’s judgment to reflect that the portion of damages assigned to Tenneco shall now be borne by the other three remaining defendants.

AFFIRMED AND AMENDED IN PART AND REVERSED AND RENDERED IN PART.

TOBIAS, J., concurs in part and dissents in part.

TOBIAS, J.,

concurring in part and dissenting in part.

|¶1 concur with the finding of the majority that the trial court did not err in overruling the exception of prescription filed by the defendants. The petition for damages is not prescribed on its face, and the defendants failed to establish by a preponderance of the evidence that the case is prescribed in fact. The record before this court appears several pleadings in which plaintiffs’ decedent’s name appears as a party.

With regard to the finding of fault against Tenneco, I agree with the majority that the trial court erred, especially in light of the trial court’s specific finding that the evidence did not preponderate to show “intentional acts on the part of Ten-neco Oil or any of its executive officers.”

However, I respectfully dissent from the majority’s ruling with regard to the affirmation of that portion of the trial court’s judgment against Pollard. It is undisputed that Pollard died on 7 May 2002. Although all parties were cognizant of his death prior to the trial of this matter, no action was taken of record to substitute Pollard’s succession representative as a proper party defendant. A judgment entered against a deceased individual constitutes a legal nullity. Charia v. Allstate Ins. Co., 93-1230 (La.App. 4 Cir. 3/29/94), 635 So.2d 370. In accordance with our ruling in Charia, I would remand to the trial court so that it |Pmay substitute the succession representative or heir of Amos Pollard as a proper party to the suit.

      . In 1988, Mobil bought the plant from Ten-neco.

      . Richardson, et al. v. Metro Life Ins. Co. et al, Case No. 95-17063.

      . El Paso Energy EST Company, the trustee for the EPEC Oil Company Liquidating Trust, is the current defendant in this litigation.

      . The parties entered a stipulated order in which both sides agreed that the exceptions would be granted to the extent that the consortium claims and the wrongful death claims were based upon negligence.

      . Flintkote settled with the plaintiffs prior to trial.

      . Although the plaintiffs sued eight executive officers in all, the trial court only found three liable.


author: TERRI F. LOVE, Judge.

text:
    Wanda TURLEY v. PLAQUEMINES PARISH SCHOOL BOARD.
    No. 2005-CA-0864.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 2006.
    Julie Richard-Spencer, Robein, Urann & Lurye, P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Darryl W. Bubrig, Sr., District Attorney, Belle Chasse, LA and Gilbert V. An-dry IV, Assistant District Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

| Appellant, Wanda Turley, appeals a judgment of the 25th Judicial District Court upholding the decision of the Plaquemines Parish School Board discharging her as a tenured bus driver. We affirm the judgment of the District Court.

FACTS AND PROCEDURAL HISTORY

Wanda Turley (“Mrs.Turley”) was a ten-year veteran, tenured school bus driver with the Plaquemines Parish School Board (“Board”). On August 31, 2000, Mrs. Tur-ley had a meeting with her supervisor, Emile Rondey (“Mr.Rondey”), where she complained that the children in the Oak-ville area of Belle Chasse often stood too far off the road. According to Mr. Ron-dey, he gave her a directive with two options. First, to either pull off to the shoulder of the road and get off the highway to pick the children up or to “go ahead and make the block and pick them up.” Mr. Rondey testified that Mrs. Turley responded “no” to both options. He told her she “had better pick the children up Tuesday morning.” Mrs. Turley responded by saying, “let Laura Tate [to] deal with those people” and she left the office. Shortly after Mrs. Turley left Mr. Rondey’s office, he testified that two secretaries of the Board’s transportation office, Lana Agaisse and Meg Paolini, |gcame to his office and reported that Mrs. Turley said, “I told him” referring to Mr. Rondey, “that I was not going to cater to a bunch of little [N words].” Mr. Rondey reported the incident to Superintendent James Hoyle (“Superintendent Hoyle”) who told him to “write Mrs. Turley up” and recommend termination.

On September 5, 2000, Mr. Rondey completed an incident report where he recounted the August 31, 2000 incident in his office and recommended that Mrs. Turley be terminated for “refusal to do her run as directed and for racial comments made in the Belle Chasse Transportation office in front of my secretaries.” On that same date, Mrs. Turley received a suspension letter from Superintendent Hoyle where she was notified that she was suspended with pay for insubordination and a racial statement. Mrs. Turley was also informed that the investigation could lead to reprimands and/or termination and the investigative procedures would begin on September 8, 2000, at 9:30 a.m. at the Board office where she would be given an opportunity to explain her position. Mrs. Turley attended the meeting and denied the allegations.

On September 15, 2000, Superintendent Hoyle sent Mrs. Turley a letter advising her that the investigation was on-going and she would be notified no later than September 29, 2000, of the final decision. Mrs. Turley received a letter dated September 22, 2000, from Superintendent Hoyle informing her that he would meet with her on September 29, 2000, to render his decision.

A certified letter was mailed to Mrs. Turley on October 6, 2000, informing her that at the Board’s October 2, 2000 meeting a tenure hearing was to be held based on the charge of willful neglect of duty pursuant to La. R.S. § 17:443. The 1 ^tenure hearing was scheduled for November 9, 2000. The charge of willful neglect of duty stated:

While in the course and scope of your employment as a school bus driver with a Belle Chasse area route, on September 1, 2000, while you were in the School Board Transportation Office, 509 F. Edward Hebert Boulevard, Belle Chasse, Louisiana, you blatantly refused two valid directives from you immediate supervisor, Mr. Emile Rondey, Director of Transportation. Mr. Rondey offered several directives in order to safely pick up the students from Oakville, who, while waiting for the bus, stand back from the shoulder of the road on Highway 23. The directives specifically were: 1) to pull off Highway 23 and load the students from Oakville or 2) to drive around the block in Oakville and pick up the students. These constituted safety measures, which are paramount to the health and well-being of our children. You refused both of these directives.
Additionally, before you left the Transportation Department’s office, you used the racial slur “[N word]” in referring to the children of the town of Oakville, parish of Plaquemines, state of Louisiana. The two secretaries in the Transportation Department’s office, Mrs. Lana Agaisse and Mrs. Mary “Meg” Paolini, witnessed this remark.

The letter also informed Mrs. Turley that she had a right to a private or public hearing at her option. She also had a right to full discovery and to appear before the Board with counsel. The Board stated that it would subpoena witnesses on her behalf if she provided a list of witnesses by October 18, 2000. The Board listed its witnesses in the letter and notified Mrs. Turley that if after a hearing, the Board, by a preponderance of evidence, found her guilty of willful neglect of duty, she would be discharged.

Counsel for Mrs. Turley requested a continuance of the hearing and it was rescheduled for December 14, 2000. Mrs. Turley testified and learned of the Board’s decision at the hearing. The Board voted to dismiss the charge of | insubordination against Mrs. Turley but upheld a charge of use of improper language.

After the ruling of the Board, Mrs. Tur-ley filed a Petition for Review of Decision. The trial court upheld the Board’s decision stating:

The allegations of fact by the School Board that the tenured bus driver, Wanda Turley, had used the “N” word while performing her duties, and noting the school board’s bus driver handbook that “... Under no circumstances will any communications of a demeaning or derogatory manner be tolerated and will result in disciplinary action ...and after reviewing the entire record submitted to this court, this court finds that the hearing conducted was in accordance with the authority and formalities of the statutes. The findings of fact were supported by substantial evidence and the hearing body’s conclusions from these factual findings were not arbitrary nor constituted an abuse of the School Board’s discretion.

Mrs. Turley appealed the ruling of the trial court claiming that the District Court erred in finding that the Board complied with the formalities of La. R.S. § 17:493(C) and the District Court erred in concluding that the charges against Mrs. Turley were supported by substantial evidence.

STANDARD OF REVIEW

The standard for reviewing a school board’s decision after a tenure hearing is twofold: 1) determination of whether the hearing was conducted in accordance with the formalities of the tenure law and 2) determination of whether the decision is based on substantial evidence. Coleman v. Orleans Parish Sch. Bd., 93-0916 (La.App. 4 Cir. 2/5/97), 688 So.2d 1312.

La. R.S. § 17:493

Mrs. Turley’s first assignment of error alleges that the District Court erred in finding that the Board complied with the formalities of La. R.S. § 17:493(C), which states in pertinent part:

liilf a permanent school bus operator is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty ... the superintendent with approval of the board shall furnish to the school bus operator a written statement of removal or discipline, which shall include but not be limited to the exact reason, offense, or instance upon which the recommendation is based. Such operator may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter.

The record reflects that Mrs. Turley was provided with several letters detailing the charges against her, but after the December 14, 2000 tenure hearing the record is devoid of evidence documenting that she was provided with a written statement as outlined above. However, she learned of the Board’s decision to terminate her employment at the hearing. Before Superintendent Hoyle’s written statement was issued and without seeking to compel its issuance, Mrs. Turley filed a petition for review of the Board’s decision from December 14, 2000. The District Court, upon review of the record, found that the hearing was conducted in accordance with the statute, the Board’s findings of fact were supported by substantial evidence, and the Board’s decision was neither arbitrary nor an abuse of discretion. In his reasons for judgment, the trial court did not address the absence of Superintendent Hoyle’s final written statement regarding the reasons for termination.

La. R.S. 17:493(A) requires that a bus operator may only be removed upon written and signed charges and after a hearing. It is undisputed that Mrs. Turley was afforded ample notice of the charges against her and a full hearing on those charges in compliance with the statute and constitutional due process.

The question in this case is which party violated the statutory provision and what is the remedy for the violation. Section C provides, in effect, that a | germinated bus operator has one year to appeal the Board’s reasons for termination. Mrs. Turley, however, did not wait for Superintendent Hoyle’s written reasons to file her petition for review in the District Court. As such, her petition was filed prematurely. Superintendent Hoyle’s failure to comply with the statutory requirement to provide a written statement may extend the prescriptive period for filing a petition for review in District Court, but there is no basis in the statute for reversing the Board’s decision and reinstating a bus operator because a plaintiff files her petition prematurely.

Mrs. Turley made no effort to compel issuance of the written statement and seeks reinstatement. Moreover, 41 months elapsed between the filing of Mrs. Turley’s petition for review and the issuance of the District Court’s judgment. Therefore, we find this argument is without merit.

Substantial Evidence

Mrs. Turley’s also argued that the District Court erred in concluding that the charges against her were supported by substantial evidence. Mrs. Turley blatantly ignored two directives issued to ensure the safety of the children of Oakville, insisting that the children should stand on the shoulder of Highway 23 for pickup and refusing to drive around the block to pick them up at the local church. While doing so, she used the “N” word more than once. Several witnesses testified that Mrs. Tur-ley used this language at the Board’s hearing. Therefore, we find no merit in this argument.

DECREE

For the reasons stated above, we affirm the decision of the District Court.

AFFIRMED.

JONES, J., concurs.

      . The correspondence in the record refers to the date of the alleged racial slur as August 31, 2000, and as September 1, 2000.

      . We assume the Board meant to cite La. R.S. § 17:493 because it applies to school bus drivers and La. R.S. § 17:443 applies to tenured teachers.

      . The Board did not raise the dilatory exception of prematurity. By filing suit without waiting for Superintendent Hoyle's written reasons, Mrs. Turley waived her right to object to the absence thereof.


author: MAX N. TOBIAS, JR., Judge. MURRAY, J.,

text:
    Leona THOMPSON v. Alfred L. CELESTAIN, Sr.
    No. 2005-CA-1481.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 2006.
    Warren G. Deagano, Jr., New Orleans, LA, for Leona Thompson.
    Kathy Lee Torregano, Karen B. Sher, Berrigan Litchfield Schonekas Mann Traí-na & Bolner, New Orleans, LA, for Alfred L. Celestain, Sr.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

11 This case involves a petition for partition of immovable property brought by Leona Thompson (“Thompson”) against her former boyfriend/fiancé , Alfred L. Celestain, Sr. (“Celestain”), regarding the house that they purchased together in New Orleans in January 2001. Thompson and Celestain eventually ended their relationship, and Thompson moved out of the house.

On 29 July 2004, Thompson filed a petition to partition the property located at 4624 Eastern Street in New Orleans (“the property”). She alleged that she was the owner of an undivided one-half interest in the house and that the property was not susceptible to division in kind because the property included the land and the house. She prayed for partition by licitation of the immovable property. Along with her petition, she filed a descriptive list of assets and liabilities, listing the movable property in the house, as well as the mortgage on the property and the amount due on a VISA account. Celestain responded to the petition with his own descriptive list of assets and liabilities. His list differed from Thompson’s | ^regarding the value of many items of movable property; the liability for the debt of a VISA credit card; and further assigned ownership for each item of movable property to either himself or Thompson. On 7 December 2004, Celestain filed a motion to set a hearing on the petition to partition the property.

The hearing was set for 29 March 2005. Thompson was the only witness to testify on her behalf. She testified that she and Celestain purchased the house for $110,000.00 and that she tendered a $1,000.00 good faith deposit toward the purchase and an additional $26,462.28 as a down payment. She presented copies of an official check for $1,000.00 made payable to the realtor and an official check made payable to herself for $26,462.28. Thompson testified that after she and Celestain purchased the house, she made twelve or thirteen mortgage payments before she eventually moved out in August 2002. She did not present any cancelled checks to introduce into evidence in support thereof, but testified that she made the mortgage payments by money order and could not document the payments. She further testified that she paid for the installation of new windows at the house, costing her a total of $4,279.00. In conjunction with this testimony, she presented one copy of a money order made payable to the mortgage holder and two receipts for windows from LAS Enterprises.

Thompson also testified that she and Celestain had a VISA credit card account together, and that the balance on the account was $9,000.00. She testified |sthat she and Celestain were both responsible for the charges on the account, and that he had agreed to pay for half of the charges on the account when they ended their relationship. He purportedly made a $5,000.00 payment on the account, but then withdrew $5,000.00 against the account by way of a counter check.

Celestain’s testimony is at odds with Thompson’s in many regards. Celestain testified that Thompson moved out during Mardi Gras 2001, and did not continue to reside there until August 2002 as she maintains. Further, Celestain denied that Thompson made the entire down payment on the property; he asserts that he put down $12,000.00 toward the purchase price. He further testified that he has made almost all of the mortgage payments on the property, and that Thompson made only one before she moved out. In support of his testimony, Celestain presented copies of canceled checks written on his personal checking account to the mortgage company, which totaled $12,453.58, representing fifteen mortgage payments. He also described and documented improvements he made to the property over the years, including replacing, the front door, installing a hot tub, restoring a bathtub, plumbing repairs, and various other acts of maintenance on the property.

Celestain’s son and brother were called to testify on his behalf. His son, Alfred Celestain, Jr., testified that he attended college in Baton Rouge, Louisiana from August 1999 through October 2003, frequently coming home to his father’s house both on weekends and during the week. He testified that Thompson was no longer living at the house as of August 2001, but sometimes came by the house to | ¿shower and change clothes. He testified that Thompson and his father owned a white vehicle together of which Thompson retained possession after the break-up. Celestain’s brother testified that Thompson had ceased living at the property sometime around Mardi Gras in 2001.

The trial court issued judgment on 6 April 2005 and issued detailed reasons for judgment. It awarded Thompson the following credits, totaling $24,042.20: $1,000.00 for the good faith deposit on the house; $13,081.14, representing one-half of the down payment on the property; $682.06 for one mortgage payment on the house; $4,279.00 for windows she had installed at the house; and $5,000.00 for the portion of the VISA credit card bill that Celestain admitted depositing the money to pay, but which he later withdrew from the joint account. The trial court awarded Celestain the following credits, totaling $48,025.60: $13,081.14 (one-half of the down payment); $25,463.60 for mortgage payments from August 2002 through the time of trial; the value of two windows installed at the house, calculated to total $713.17; and home repairs and improvements totaling $8,767.69. The judgment found that Thompson was indebted to Celestain in the amount of $23,983.40, with judicial interest due from the date of demand. It further found that the parties “have agreed to settle the jointly held real property” and conveyed Thompson’s undivided interest in the property to Celestain.

Thompson appeals the judgment of the trial court, assigning six errors. Thompson maintains that the trial court erred in 1) ordering the transfer of Thompson’s interest to Celestain instead of partitioning the property; 2) alternatively, if the transfer order was proper, failing to require Celestain to |sreimburse Thompson for her one-half undivided interest; 3) issuing a money judgment in favor of Celestain with interest accruing “from the date of judicial demand” when there was no judicial demand; 4) holding Celestain and Thompson to different evidentiary standards and burdens of proof; 5) requiring Thompson to reimburse Celestain for costs related to the Jacuzzi, when it was installed over her objections; and 6) failing to give Thompson a credit against maintenance costs to offset the benefit derived by Celestain who enjoyed sole use and occupancy of the house from August 2002 on.

Celestain argues that the parties negotiated extensively to divide the movable property between them, transfer title of the residential immovable property to Celestain, and to compensate Thompson for the value of her interest in the property. What was not intended by the parties, according to Celestain, was to proceed to a partition by licitation. Thus, although Celestain admits that the judgment as rendered by the trial court may be flawed in its computation of damages, he contends that it essentially reflects the will of the parties with regard to the disposition of the immovable property. As we discuss infra, we do not find this argument persuasive or in accordance with Louisiana law.

Under Louisiana law, a person may not be compelled to own property in indivisión with another and may petition a court of competent jurisdiction to partition the property between its owners. La. C.C. art. 807; Ainsworth v. Ainsworth, 03-1626, p. 4 (La.App. 4 Cir. 10/22/03), 860 So.2d 104,109. If the property in question is not divisible in kind, such as a house, it must be partitioned by licitation and put up for sale at public auction. La. C.C. art. 811. The parties may agree, however, to a private sale at any time before the auction is held. La. C.C.P. art. 4607. Once the property is sold, the co-owners are entitled to a portion | (¡of the proceeds equal to their ownership share in the property, and further share according to their ownership interest in the liability for any mortgages or encumbrances on the property. La. C.C. art. 815.

The law does not, however, provide for the result reached by the trial court in this matter. In the absence of an agreement to privately sell the property or other stipulation regarding its ownership and transfer, the trial court was bound as a matter of law to order the property sold at auction with the proceeds to be divided between Thompson and Celestain, taking into account the credits and liabilities each party was entitled to with regard to the property. If, as Celestain argues, the parties intended for him to acquire Thompson’s one-half undivided interest in the property with compensation to her for her interest, they may confect such an agreement prior to public sale. However, the evidence in the record on appeal does not preponderate to show that such an agreement was made, and an agreement to sell property in lieu of partition must be “definite and certain.” Ainsworth v. Ainsworth, 860 So.2d at 109, citing, Walker v. Chapital, 218 La. 663, 50 So.2d 641 (1951). Otherwise, the trial court is bound to follow the Code of Civil Procedure and effect a partition by licitation. Because the trial court failed to follow the procedure outlined in the Code of Civil Procedure, it prematurely determined the amounts of reimbursements owed. Therefore, we vacate the judgment of the trial court and pretermit ruling on the remaining assignments of error.

|7As such, the judgment of the trial court is vacated and this matter is remanded to the trial court to proceed in accordance with law.

VACATED; REMANDED.

MURRAY, J., concurs and assigns reasons.

MURRAY, J.,

concurs and assigns reasons.

|TI agree that the trial court’s judgment must be vacated in its entirety because the trial court made its factual findings in the context of ordering the transfer of one co-owner’s interest in the property to the other co-owner, which transfer is not authorized by the law. However, I concur to emphasize that this court has not determined that the individual factual findings made by the trial court are manifestly erroneous, only that they were, as the majority states, “prematurely” made. Therefore, upon remand, the trial court may legitimately choose to reaffirm any of its prior factual findings that are not in conflict with partition of the property, which this court has determined to be the proper result in this case.

Accordingly, I respectfully concur in the result.

      . There is a disagreement between the parties as to whether they were ever engaged to be married. Because they never married, however, the status of their relationship is of no moment as a matter of law, and they are to be treated merely as two owners in indivisión of the property in question.

      . Thompson also requested division of some movable property contained in the house, including furniture and personal items. However, the parties reached an agreement regarding division of the movable property and its partition is not part of this appeal.

      . Thompson did not call any additional witnesses, even though several were listed on her witness list submitted prior to trial.

      . The trial court noted in its reasons for judgment that she and Celestain maintained a joint checking account during the time they lived together, and questioned why Thompson would have made the payments by money order. Thompson asserts that she still has personal possessions and documents at the house to which Celestain will not allow her access.

      .The earliest mortgage payment documented by the evidence presented by Celestain was dated 10 August 2002, which is the month Thompson asserts she moved out. Celestain, like Thompson, presented no cancelled checks detailing any mortgage payments made from January 2001 to July 2002.

      . We note that the vehicle is not listed as an item of movable property in dispute between the parties.

      . It appears that the trial court proceeded to partition the property according to La. R.S. 9:2801, et seq. Those provisions of law are inapplicable for they apply to partition of community property, not property owned in indivisión between unmarried individuals. We do, however, recognize that the provisions may by analogy provide guidance to a court as to how to proceed. We further note that the partition should be handled in accordance with La. C.C.P. arts. 4601, et seq., but not La. C.C.P. art. 4621, et seq., which applies only in the case of an absent co-owner.


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

text:
    Shawn O'Brien ROBERT v. Andre James ROBERT.
    No. 2004-CA-1127.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 28, 2006.
    Phillip A. Wittmann, Carmelite M. Ber-taut, Stone Pigman Walther Wittmann L.L.C., David J. Foshee, New Orleans, Counsel for Plaintiff/Appellant, Shawn O’Brien Robert.
    D. Douglas Howard, Jr., Danyelle M. Taylor, New Orleans, Counsel for Defendant/Appellee, Andre James Robert.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, Jr.)
   LEON A. CANNIZZARO, JR., Judge.

LThe plaintiff, Shawn O’Brien Robert (“Mrs. Robert”), appeals a trial court judgment rendered in favor of the defendant, Andre James Robert (“Mr. Robert”), classifying the partnership distributions received by Mr. Robert from Johnson Rice <& Company, L.L.C. (“Johnson Rice”) as his separate property pursuant to his declaration of separateness.

FACTS AND PROCEDURAL HISTORY

Mr. and Mrs. Robert were married on May 5, 1990. Two days before their wedding, on May 3, 1990, Mr. Robert executed and registered a declaration pursuant to Louisiana Civil Code article 2339, reserving as separate the civil fruits of his para-phernal (separate) property. Mrs. Robert was unaware of Mr. Robert’s declaration of separateness. After 11 years of marriage, on May 7, 2001, Mrs. | ^Robert filed a petition for divorce in: Civil District Court for the Parish of Orleans. She later petitioned the court for a partition of the community property and learned for the first time that Mr. Robert had executed and recorded the declaration of separateness. The parties were divorced by judgment signed on February 26, 2002, and the community regime was terminated as of May 7, 2001.

As a stockbroker at Johnson Rice, Mr. Robert earned commissions on stocks that he sold to the firm’s clients and also received annual profit distributions based on his partnership/membership interest in the firm. The parties agreed that all commissions earned by Mr. Robert during their 11 years of marriage, which totaled $8,884,351.00, were community assets. However, they disagreed as to whether the total profit distributions of $4,851,254.00 that were paid to Mr. Robert during the marriage were community or separate property. Mrs. Robert contends that the annual profit distributions are community assets because they are the result of Mr. Robert’s skill, labor and industry. Mr. Robert, on the other hand, refers to the distributions as “equity” distributions and contends they are his separate property because they were paid in proportion to his ownership (membership) interest in the firm, i.e. civil fruits as defined by La. C.C. art. 551 that he properly reserved as his separate property pursuant to La. C.C. art. 2339. He further claims that he expended $2,937,820.00 of the total profit distributions on satisfying 13community obligations and seeks reimbursement from Mrs. Robert for one-half of that amount or $1,468,910.00.

The parties agreed to a separate trial limited solely to the initial classification of the partnership/membership profit distri-buttons that Mr. Robert received during the community regime. At trial, the attorneys presented their arguments and, in lieu of live testimony, introduced into evidence the parties’ depositions as well as the depositions from their respective expert witnesses and numerous exhibits. The trial court subsequently rendered a judgment holding that the annual profit distributions received by Mr. Robert for the period May 5, 1990, through May 7, 2001, from Johnson Rice were his separate property pursuant to his properly recorded declaration of separateness.

Mrs. Robert filed a motion to certify the judgment as a final judgment pursuant to La. C.C.P.1915 B(l), which Mr. Robert opposed. After a contradictory hearing, the trial court designated the judgment as a final judgment but gave no express determination that there was no just reason to delay the appeal.

DISCUSSION

The Louisiana Supreme Court has held that the trial court’s failure to state the reasons why there is no just reason for delay does not require dismissal of an |4appeal of a judgment that has been certified as final under La. C.C.P. art. 1915. R.J. Messinger, Inc. v. Rosenblum, 04-OC-1664, p. 14 (La.3/2/05), 894 So.2d 1113, 1122. Rather, the Court has held that when, as here, the trial court has certified a partial judgment under La. C.C. P. art. 1915 B(1) as final without giving express reasons why there is no just reason to delay the appeal, the appellate court should make a de novo determination of whether certification was proper. Id.

Louisiana jurisprudence sets forth five factors that an appellate Court should consider in determining whether no just reason for delay exists under La. C.C.P. art. 1915:

1) The relationship between the adjudicated and unadjudicated claims;
2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
3) The possibility that the reviewing court might be obliged to consider the same issue a second time;
4) The presence or absence of a claim or counterclaim which could result in a setoff against the judgment sought to be made final; and
5) Miscellaneous factors such as delay, economic and insolvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Banks v. State Farm Ins. Co., 30,868, p. 4 (La.App. 2 Cir. 3/5/98), 708 So.2d 523, 525; Johns v. Jaramillo, 1998-2507, p. 3-4 (La. App. 4 Cir. 11/25/98), 724 So.2d 255, 257.

Considering the aforementioned factors, we find the trial court erred in certifying this partial judgment as final. The issue adjudicated -whether the annual distributions received by Mr. Robert during the community regime are separate or community property, is just one among several issues to be resolved in partitioning |sthe community property between the parties. Although the trial court determined that the annual distributions at issue were separate property, an affirmation or reversal, in whole or in part, of that judgment by this court would not terminate the partition litigation and the matter would have to be remanded for further proceedings. In the event of a remand, it is likely that this court will consider the same issue in a subsequent appeal.

Notably, the trial court certified the partial judgment as a final judgment, despite the fact that the trial judge expressly declined, albeit at the parties’ request, to consider the issue of commingling of the annual distributions.

The law is well settled that where separate and community funds are commingled to the extent that the separate funds cannot be identified or differentiated from the community funds, all the funds are characterized as community funds. Curtis v. Curtis, 403 So.2d 56 (La.1981). In the instant case, although Mr. Robert had the burden of proving the annual distributions were his separate property, his own testimony indicates that the funds he claims as separate were commingled to some extent with community funds.

To fully consider the issue of commingling, which is indispensable in determining the final classification of the property in dispute, both parties must be allowed to put forth evidence on that issue. In light of the above-stated law and the fact that Mr. Robert’s testimony touched on the issue, it was legal error for the trial court to determine the separate characterization of the property without having fully considered the issue of commingling. Moreover, it would be legal error for this court to approve the certification of the instant judgment as final absent full consideration at the trial court level of an issue' that legally must be addressed in order to finally determine the nature of these distributions as separate or | ^community. In both instances, such legal error cannot be cured by the parties’ mutual agreement to the procedure.

Absent certification as a final judgment, the trial court may or may not revisit its determination of these distributions as separate property once it has fully considered the issue of commingling during trial of the remainder of the case. Under the circumstances, we find that the failure to consider that issue provides a “just reason” for delay of this appeal until the entire case has been resolved in the trial court.

CONCLUSION

Accordingly, the trial court’s certification of the partial judgment as a final judgment pursuant to La.C.C. P. art. 1915 B(l) is revoked, the appeal is dismissed and the matter is remanded to the trial court for further proceedings.

APPEAL DISMISSED AND REMANDED.

      . Johnson Rice & Company, an investment securities brokerage firm, was formed as a partnership in 1987. At that time, Mr. Robert, a registered stockbroker, made a capital contribution of $69,704.00 to acquire a 5% ownership interest in the partnership. In January 1994, the partners reorganized, executing an operating agreement creating Johnson Rice & Company, L.L.C., a limited liability corporation. Pursuant to the agreement, Mr. Robert exchanged his partnership interest in the predecessor firm for a membership interest in the new limited liability corporation. As of May 5, 1990, the date of his marriage to Shawn O’Brien, he owned a 7.505% partnership interest in Johnson Rice and the balance in his Johnson Rice capital account was $172,303.00. During the parties' marriage, Mr. Robert's capital account balance increased by $842,344.00, and at the termination of the community in May 2001, his ownership interest was approximately 14.8306%.

      . Pursuant to the Johnson Rice Operating Agreement, a "Unit” represents a member’s membership interest or percentage of ownership in the firm. A total of 100 Units constitutes all membership interests in the firm. A member of the firm may hold a fractional part of a Unit.

      . La. C.C. art. 551 provides, in pertinent part, "[cjivil fruits are revenues derived from a thing by operation of law or by reason of a juridical act, such as rentals, interest, and certain corporate distributions.”

      . La. C.C.P. art. 1915 B(l) provides:
      When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.