text:
    STATE ex rel. Glen ROBINSON v. STATE of Louisiana.
    No. 2006-KH-1519.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Robinson, Glen; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. D, No. 00-0247; to the Court of Appeal, Fifth Circuit, No. 06-KH-318.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Elmo LEE v. STATE of Louisiana.
    No. 2006-KH-1531.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Lee, Elmo; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, No. 389-779; to the Court of Appeal, Fourth Circuit, No. 2006-K-0421.

Denied. Untimely, not cognizable on collateral review, and repetitive. 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. cf. La.C.Cr.P. art. 930.4(D).


text:
    STATE ex rel. Brian SALTZMAN v. STATE of Louisiana.
    No. 2006-KH-1532.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Saltzman, Brian; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. D, No. 19719-01; to the Court of Appeal, Third Circuit, No. KH 05-01528.

Denied.


text:
    STATE ex rel. Corey Marquee ADAMS v. STATE of Louisiana.
    No. 2006-KH-1533.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Adams, Corey Marquee; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Lafayette, 15th Judicial District Court Div. K, No. 93424; to the Court of Appeal, Third Circuit, No. KH 06-00019.

Denied.


text:
    STATE ex rel. Michael LOTT v. STATE of Louisiana.
    No. 2006-KH-1543.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Lott, Michael; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. P, No. 97-229; to the Court of Appeal, Fifth Circuit, No. 06-KH-199.

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 of Louisiana v. Mark FORREST.
    No. 2006-KP-1546.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Forrest, Mark; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, Nos. 00-6314, 00-7046; to the Court of Appeal, Fifth Circuit, No. 06-KH-249.

Denied.


text:
    STATE of Louisiana v. Dana MILES.
    No. 2006-KP-1581.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Miles, Dana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 4-97-133; to the Court of Appeal, First Circuit, No. 2006 KW 0516.

Denied.


text:
    STATE of Louisiana v. Robert BOUDREAUX.
    No. 2006-KP-1614.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Boudreaux, Robert; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. J, No. 03-0775; to the Court of Appeal, Fifth Circuit, No. 06-KH-334.

Denied.


text:
    STATE ex rel. Wilbert BRADLEY v. STATE of Louisiana.
    No. 2006-KH-1681.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Bradley, Wilbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. B, No. 4-89-980; to the Court of Appeal, First Circuit, No(s). 2006 KW 0471, 2005 KW 2419.

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 of Louisiana v. Benjamin WRIGHT.
    No. 2006-K-1727.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Wright, Benjamin; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Webster, 26th Judicial District Court Div. B, No. 69,945; to the Court of Appeal, Second Circuit, No. 40,-945-KA.

Denied.


text:
    STATE of Louisiana v. Albert STEVENS, Jr.
    No. 2006-OK-1902.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Stevens, Albert, Jr.; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 93-CR010426; to the Court of Appeal, Third Circuit, No. KH 06-00804.

Denied.


text:
    STATE of Louisiana v. S.D.G.
    No. 2006-KO-1917.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re S.D.G.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. G, No. 271390, 271630; to the Court of Appeal, Third Circuit, No. 06-175.

Denied.


text:
    STATE of Louisiana v. Robert MCKEE.
    No. 2006-KO-1920.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re McKee, Robert; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Washington, 22nd Judicial District Court Div. A, No. 02 CR3 83952; to the Court of Appeal, First Circuit, No. 2005 KA 2515.

Denied.


text:
    STATE of Louisiana v. Timmie D. DAVIS.
    No. 2006-KO-1934.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Davis, Timmie D.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. H, No. 03F0415; to the Court of Appeal, Second Circuit, No. 40,-994-KA.

Denied.


text:
    Diane PRINCIOTTA v. ORMOND NURSING AND CARE CENTER, L.L.C., Kevin Comboy and Kathy Doe.
    No. 2006-CC-2347.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Princiotta, Diane; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of St. Charles, 29th Judicial District Court Div. E, No. 58,241; to the Court of Appeal, Fifth Circuit, No. 06-C-592.

Denied.


text:
    Dennis R. WHALEN v. Peyton MURPHY.
    No. 2006-C-2915.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Whalen, Dennis R.; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. F, No. 484,674; to the Court of Appeal, First Circuit, No. 2005 CA 2446.

Denied.

CALOGERO, C.J., would grant.

KIMBALL, J., would grant.


text:
    State of Louisiana in the Interest of D.G.
    No. 2007-CK-0078.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re D.G.; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Orleans Parish Juvenile Court, No. 2006-227-02-DQ-C; to the Court of Appeal, Fourth Circuit, No. 2006-C-1653.

Denied.

TRAYLOR, J., would grant.

WEIMER, J., would grant.


text:
    Norbert PRINCE, Sr. and Hazel Prince v. Hasley L. PROSPERIE and State of Louisiana Through the Department of Transportation and Development.
    No. 2007-C-0106.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Transportation and Development, Department of; Louisiana, State of; — Defendants); Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 109,067; to the Court of Appeal, First Circuit, No. 2006 CA 0721.

Denied.


text:
    Alphonse WILLIAMS, Carolyn Williams and William Abroms v. PIONEER FISHING & RENTAL TOOLS, INC. et al.
    No. 2007-C-0107.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Abroms, William; Williams, Alphonse et al.; Williams, Carolyn; — Plaintiffs); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. L, No. 88-4927; to the Court of Appeal, Third Circuit, No. 06-1049.

Denied.


text:
    Maureen GREEN v. IBERIA PARISH SCHOOL BOARD.
    No. 2007-C-0111.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Green, Maureen Vallot; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of St. Martin, 16th Judicial District Court Div. H, No. 05-69911; to the Court of Appeal, Third Circuit, No. 06-1060.

Denied.


text:
    MARSHALL GAS & OIL, LLC v. The CORPORATION OF HAVERFORD COLLEGE, et al.
    No. 2007-C-0115.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Marshall Gas & Oil, LLC; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20034601; to the Court of Appeal, Third Circuit, No. 06-392.

Denied.

TRAYLOR, J., recused.


text:
    Cheryl BENNETT v. SOILEAU ANIMAL HOSPITAL.
    No. 2007-C-0116.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Soileau Animal Hospital; — Defendant; Applying for Writ of Certiorari and/or Review Office of Worker’s Comp. Dist. 03, No. 01-06326; to the Court of Appeal, Third Circuit, No. 06-597.

Denied.


text:
    Gregory Kent MOROUX, et al. v. Andre F. TOCE Daniel Lombas, et al. v. Gregory K. Moroux, et al.
    No. 2007-C-0117.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Moroux, Gregory Kent et al.; Moroux, Gregory K. A Professional Law Corporation; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. F, Nos. 99-5383, 00-1207; to the Court of Appeal, Third Circuit, No(s). 06-831, 06-832.

Denied.


text:
    MARSHALL GAS & OIL, LLC v. The CORPORATION OF HAVERFORD COLLEGE, et al.
    No. 2007-C-0119.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Cook, Stephen Dr.; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Lafayette, 15th Judicial District Court Div. J, No. 20034601; to the Court of Appeal, Third Circuit, No. 06-392.

Denied.

TRAYLOR, J., recused.


text:
    Bruce D. COX v. Bernard Fontan GOTTFRIED.
    No. 2007-C-0124.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Gottfried, Bernard Fontan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of St. Tammany, 22nd Judicial District Court Div. C, No. 2004-11705; to the Court of Appeal, First Circuit, No. 2005 CA 2231.

Denied.


text:
    Angela ATWELL v. FIRST GENERAL SERVICES.
    No. 2007-C-0126.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re First General Services; — Defendant; Applying for Writ of Certiorari and/or Review Office of Workers’ Compensation District 5, No. 04-00160; to the Court of Appeal, First Circuit, No. 2006 CA 0392.

Denied.


text:
    Casey Prevost RUSSELL, et al. v. The STATE of Louisiana, Louisiana DEPARTMENT OF WILDLIFE AND FISHERIES of the State of Louisiana, et al.
    No. 2007-CC-0153.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Wildlife and Fisheries Dept, of; Louisiana State of et al; — Defendant(s); Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. G, No. 113233; to the Court of Appeal, First Circuit, No. 2006 CW 1943.

Denied.

TRAYLOR, J., would grant.


text:
    Joann S. THIBODEAUX, Victor L. Smith, and Marilyn S. Ensminger, Individually and on Behalf of Their Deceased Father, Joseph Ward Smith v. MAIN IRON WORKS, L.L.C. as Successor By Merger to Main Iron Works, Inc., et al.
    No. 2007-CC-0155.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Nabors Drilling U.S.A. L.P.;— Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 504,886; to the Court of Appeal, First Circuit, No. 2006 CW 1676.

Denied.

TRAYLOR, J., would grant.


text:
    Dr. Willie John JOSEPH, III, Dr. Michelle T. Brumfield, and St. Mary Anesthesia Associates, Inc. v. HOSPITAL SERVICE DISTRICT NO. 2 OF the PARISH OF ST. MARY, State of Louisiana, Our Lady of the Lake Hospital, Inc., Melvin Bourgeois, M.D., James Broussard, John Guarisco, Sharon Howell, Y. George Ramirez, Clifford M. Broussard, National Union Fire Insurance Company of Louisiana, and Louisiana Hospital Association Malpractice and General Liability Trust.
    No. 2007-C-0168.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Hospital Service District No. 2 of the Parish of St. Mary; Louisiana State of d/b/a; Bourgeois, Melvin M.D.; Guarisco, John; Howell, Sharon; Ramirez, Y. George; Broussard, Clifford M.; Lakewood Medical Center; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of St. Mary, 16th Judicial District Court Div. B, No. 111,233; to the Court of Appeal, First Circuit, No. 2004 CA 2761.

Denied.


text:
    J. CALDARERA & CO., INC. v. STATE of Louisiana.
    No. 2007-C-0170.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Administration, Division of; Louisiana, State of; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 534404; to the Court of Appeal, First Circuit, No. 2006 CA 0147.

Denied.


text:
    Barbara Ann JACKSON v. Keith DOLEY, Orleans Parish Sheriff's Office and Sheriff Paul Valteau.
    No. 2007-C-0171.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Jackson, Barbara Ann; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Orleans, Civil District Court Div. D, No. 2004-12090; to the Court of Appeal, Fourth Circuit, No. 2005-CA-1298.

Denied.


text:
    Yvette MORGAN v. Eve LAURENT and State Farm Mutual Automobile Insurance Company.
    No. 2007-C-0178.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Jefferson Parish of; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. P, No. 597-934; to the Court of Appeal, Fifth Circuit, No. 06-CA-467.

Denied.


text:
    Henry SAUVIAC III v. James Michael DOBBINS and XYZ Insurance Company.
    No. 2007-C-0181.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Hartford Casualty Insurance Company; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. G, No. 518-009; to the Court of Appeal, Fifth Circuit, No. 06-CA-666.

Denied.


text:
    SPINE DIAGNOSTICS CENTER OF BATON ROUGE, INC. v. LOUISIANA STATE BOARD OF NURSING through the LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS and August J. Rantz, III.
    No. 2007-CC-0183.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Louisiana State Board of Nursing; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 536,009; to the Court of Appeal, First Circuit, No. 2006 CW 0554.

Denied.

TRAYLOR, J., would grant.


text:
    Raymon Lee HARTZO and Debra Elaine Hartzo v. AMERICAN NATIONAL PROPERTY AND CASUALTY INSURANCE COMPANY and Allstate Insurance Company.
    No. 2007-C-0184.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re American National Property and Casualty Louisiana Ins. Co. et al.; American National General Insurance Company; — Defendant(s); Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. N, No. 523,390; to the Court of Appeal, First Circuit, No. 2005 CA 1493.

Denied.


text:
    Ronald JOHNSON, Dr. W. Johnson, Florena Johnson, Brian Johnson, Dr. Yolunda Taylor and Sophia Riley v. Antonio HARRELL and Imperial Fire and Casualty Insurance Company d/b/a Imperial Adjustment Corporation.
    No. 2007-CC-0186.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Riley, Sophia; Johnson, Ronald et ah; Johnson, Florena; Taylor, Yolunda; Johnson, W. Dr.; — Plaintiffs); Applying for Supervisory and/or Remedial Writs, Parish of Tangipahoa, 21st Judicial District Court Div. G, No. 2004-004065-G; to the Court of Appeal, First Circuit, No. 2006 CW 1844.

Denied.


text:
    Gail UNGLESBY v. WENCO OF OHIO.
    No. 2007-C-0187.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Unglesby, Gail; — Plaintiff; Applying for Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 496,399; to the Court of Appeal, First Circuit, No. 2005 CA 1572.

Denied.


text:
    SPINE DIAGNOSTICS CENTER OF BATON ROUGE, INC. v. LOUISIANA STATE BOARD OF NURSING through the LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS and August J. Rantz, III.
    No. 2007-CC-0217.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Rantz, August J. Ill; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. D, No. 536,009; to the Court of Appeal, First Circuit, No. 2006 CW 0554.

Denied.

TRAYLOR, J., would grant.


text:
    Dr. Willie John JOSEPH, III, Dr. Michelle T. Brumfield, and St. Mary Anesthesia Associates, Inc. v. HOSPITAL SERVICE DISTRICT NO. 2 OF the PARISH OF ST. MARY, State of Louisiana, Our Lady of the Lake Hospital, Inc., Melvin Bourgeois, M.D., James Broussard, John Guarisco, Sharon Howell, Y. George Ramirez, Clifford M. Broussard, National Union Fire Insurance Company of Louisiana, and Louisiana Hospital Association Malpractice and General Liability Trust.
    No. 2007-C-0240.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re National Union Fire Insurance Company of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of St. Mary, 16th Judicial District Court Div. B, No. 111,233; to the Court of Appeal, First Circuit, No. 2006 CA 0604.

Denied.


text:
    STATE of Louisiana v. Akai GLOVER.
    No. 2007-KK-0342.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Glover, Akai; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. H, Nos. 459-869, 461-906; to the Court of Appeal, Fourth Circuit, No. 2006-K-1590.

Denied.

CALOGERO, C.J., recused.


text:
    STATE ex rel. Herbert MURPHY v. STATE of Louisiana.
    No. 2007-KH-0387.
    Supreme Court of Louisiana.
    March 16, 2007.
   In re Murphy, Herbert; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. J, No. 425-897; to the Court of Appeal, Fourth Circuit, No. 2006-K-1473.

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


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

text:
    STATE of Louisiana v. Ellery C. JONES.
    No. 2006-KA-0485.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 21, 2006.
    Rehearing Denied April 16, 2007.
    Charles Foti, Attorney General, Darryl W. Bubrig, Sr., District Attorney, 25th Judicial District Parish of Plaquemines, Belle Chasse, LA, and Gilbert V. Andry IV, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellee, Ellery C. Jones.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

I,The State of Louisiana, the appellant herein, filed a bill of information charging the defendant, Ellery C. Jones, with one count of obstruction of justice, a violation of La. R.S. 14:13o.!. Following a trial, the jury returned a responsive verdict of guilty of attempted obstruction of justice. The defendant subsequently filed a motion for a new trial and a motion for a post verdict judgment of acquittal. The trial court granted the motion for a post verdict judgment of acquittal and ordered the defendant released. The State appealed.

STATEMENT OF THE FACTS

On October 22, 2004, Deputy Cody Por-tier of the Plaquemines Parish Sheriffs Department, along with other deputies, was assigned to -work at a high school football game being held at the Fort Jackson field. Deputy Portier, who was still in training, was checking the outside areas, watching for illegal alcohol consumption, fighting, and similar problems. Deputy Portier and the other deputies observed a group of people drinking beer on an area outside the field |aknown as “the hill” and approached to direct the persons to dispose of their alcohol and disperse. The defendant, who was carrying a single beer and a six-pack, began walking toward the parking lot. Deputy Portier directed him to stop multiple times, but the defendant continued walking until he reached a vehicle in the lot and opened the door. Deputy Portier reached the defendant and began to talk with him. The deputy explained to the defendant that it was a violation of a parish ordinance to drink alcohol within a certain distance of a school function. As they were talking, the defendant removed a clear plastic bag containing vegetable matter from his pocket and dropped it to the ground. Deputy Portier retrieved the bag from the ground and placed the defendant under arrest for possession of marijuana. He also advised the defendant of his constitutional rights and ascertained that the defendant understood them. He asked the defendant why he dropped the plastic bag, and the defendant replied it was because he was on probation. In a search incidental to the arrest, Deputy Portier found a pack of rolling papers in the defendant’s pocket.

At the trial, defense counsel questioned Deputy Portier about what exactly occurred when the defendant dropped the marijuana. The deputy stated that he saw the marijuana hit the ground, and that he never lost sight of it. He testified that the defendant made no attempt to leave the scene. Furthermore, he testified that the defendant did not try to destroy the marijuana, nor did he step on it, try to bury it, or conceal it in any way. The defendant had provided his name to the deputy before he dropped the marijuana. Another deputy, Chris Johnson, was a few feet |saway from the defendant and Deputy Portier when the defendant dropped the marijuana.

Defense counsel also questioned Deputy Portier about why he arrested the defendant for obstruction of justice. Deputy Portier explained that, when the defendant pulled the marijuana out of his pocket, “he could have been trying to dump it out, pour it out.” However, the deputy admitted that the bag had a knot in it. Deputy Portier further testified that it was possible that, even though he did not see the defendant “trying to kick it underneath the vehicle at that particular time, maybe that was his intention to do that.... Maybe he assumed I didn’t see him go into his pocket and drop” the marijuana onto the ground and into the grass. The deputy admitted that the defendant did nothing to obstruct the investigation into the alcohol issue.

On redirect, Deputy Portier testified that there was grass in the area where the defendant dropped the marijuana. However, he said it was only four to six inches high.

DISCUSSION

In its sole assignment of error, the State contends that the trial judge erred when he found that the evidence was insufficient to sustain the conviction and therefore granted the defendant’s motion for a post verdict judgment of acquittal. The State argues that it proved that the defendant attempted to obstruct justice by discarding the bag of marijuana to the ground as the deputy was ordering him to stop, and that the trial court employed an improper standard by substituting its judgment for that of the jury.

“A post verdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in a light most favorable to the state, does not reasonably | ¿permit a finding of guilty.” La. C.Cr.P. art. 821(B). A motion for post verdict judgment of acquittal raises the question of sufficiency of the evidence. See State v. Thibodeaux, 98-1673, p. 12 (La.9/8/99), 750 So.2d 916, 926. Evidence is deemed to have been sufficient when, after viewing the evidence in the light most favorable to the prosecution, it is determined that any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132.

La. R.S. 14:130.1 defines obstruction of justice, in pertinent part, as follows:

A. The crime of obstruction of justice is any of the following when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding as hereinafter described:
(1) Tampering with evidence with the specific intent of distorting the results of any criminal investigation or proceeding which may reasonably prove relevant to a criminal investigation or proceeding. Tampering with evidence shall include the intentional alteration, movement, removal or addition of any object or substance either:
(a) At the location of any incident which the perpetrator knows or has good reason to believe will be the subject of any investigation by state, local, or United States law enforcement officers.

Here, the defendant was convicted of attempted obstruction of justice. La. R.S. 14:27 defines an attempt, in pertinent part, as occurring when a person, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object, it being immaterial whether he would have actually accomplished his purpose.

At the outset, we note that the State misstates the facts in that Deputy Portier did not testify that the defendant discarded the marijuana as he was walking toward the parking lot while the deputy was ordering him to stop. Instead, the defendant Lwas standing by his car speaking with the deputy when he removed the bag of marijuana from his pocket and dropped it directly to the ground in the deputy’s presence. Thus, the attempt to conceal the evidence from the deputy was not carried out surreptitiously.

In granting the defendant’s motion for a post verdict judgment of acquittal, the trial judge found no evidence of intent to hide the marijuana since the defendant dropped the marijuana but then did nothing else. The trial judge also pondered whether the “location” of the evidence for purposes of subsection (A)(1)(a) of La. R.S. 14:130.1 may have been the ground, in which case the defendant did not even touch the evidence at the critical moment.

The trial judge acknowledged, and the record clearly discloses, that at the time the defendant discarded the marijuana there was no ongoing investigation with reference to any narcotics. Deputy Portier admitted that the officers had no intention of arresting the defendant for the alcohol violation, explaining that, in the past, officers had never arrested people for drinking on “the hill.” Thus, there was nothing in the testimony presented to indicate that the defendant was going to be searched incidental to the arrest. Similarly, nothing in the testimony indicates that Deputy Portier was going to frisk the defendant. Thus, we can only conclude, as did the trial judge, that the defendant’s possession of the marijuana in his pocket, which was completely unknown to Officer Portier, was not relevant to any “investigation” into the defendant’s drinking beer on “the ML”

However, La. R.S. 14:130.1 refers to an act of tampering with evidence relevant to a criminal investigation or proceeding “when committed with the knowledge that such act has, reasonably may, or will affect an actual or potential present, past, or future criminal proceeding.” The statute does not clearly require |fithat the police already be engaged in the relevant investigation or that the criminal proceeding has already commenced. In other words, the defendant by virtue of his guilty knowledge that he was possessing marijuana had the requisite knowledge that there was a potential criminal proceeding and arguably had the specific intent to affect that investigation or proceeding. The fact that his attempt to tamper with the evidence backfired does not mean he did not have the specific intent to commit obstruction of justice, and the act of moving the marijuana was from his pocket to the ground, and thus out of his physical possession, fits the element of movement of evidence, and thus was an act in furtherance of the crime.

The defendant argues that his lack of action after dropping the marijuana shows that no reasonable juror could infer that he had the specific intent to affect any potential criminal proceedings. However, Deputy Portier testified that he believed the defendant had intended to dump the marijuana out of the plastic bag into the grass. He also suggested in his testimony that the defendant may have thought he could drop the marijuana without the deputy observing him, and then the defendant could have hidden the bag under the vehicle. The jury accepted that the deputy’s testimony, while not establishing a completed offense of obstruction of justice, proved that the defendant had the specific intent to commit the offense.

CONCLUSION

Accordingly, for the reasons set forth herein, the judgment of the trial court granting the defendant’s post verdict judgment of acquittal is vacated and the jury’s verdict of guilty of attempted obstruction of justice is reinstated. The case is remanded to the district court for further proceedings.

VACATED AND REMANDED.

      . In the same bill of information, the defendant was charged with two misdemeanors, simple possession of marijuana and possession of drug paraphernalia; the State dismissed theses charges on January 10, 2006 and reinstituted them under case number OS-2792, which case is not before this Court.

      . Deputy Portier testified that the defendant might not have heard him when he told him not to walk away because of noise from the band playing nearby.


author: Judge MICHAEL E. KIRBY.

text:
    John HARKINS and the Hanover Insurance Company v. M.G. MAYER YACHT SERVICES, INC., Maritime Systems, Inc. and Lloyds Underwriters at London.
    No. 2005-CA-0668.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 13, 2006.
    Rehearing Denied April 16, 2007.

      Allen H. Borne, Ryan P. Reece, New Orleans, LA, for Plaintiffs/Appellees.
    William A. Ransom, III, Ransom Law Offices, Mandeville, LA, for M.G. Mayer Yacht Services, Inc. and Maritime Systems, Inc.
    Robert A. Redwine, New Orleans, LA, for Certain Underwriters at Lloyd’s London.
    Stephen W. Glusman, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for M.G. Mayer Yacht Services, Inc.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   Judge MICHAEL E. KIRBY.

11 Defendants, M.G. Mayer Yacht Services, Inc., and its insurer, certain underwriters at Lloyd’s London and Maritime Systems Inc., appeal the Judgment of the trial court in favor of plaintiffs, John B. Harkins, Jr., and Hanover Insurance Company.

STATEMENT OF THE FACTS

On or about August 24, 1999, Mr. Har-kins brought his sixty-two feet long powered sailing vessel, the S/V APPARITION, insured by Hanover Insurance Company, to M.G. Mayer Yacht Services, Inc. (“Mayer”) for numerous repairs. Mr. Harkins had used Mayer for repairs to his pleasure craft eight or nine times over the course of a few years, including a brand new paint job in 1997. This time, Harkins requested that Mayer install a dripless shaft system and repair the yacht’s refrigeration unit. Mayer installed the dripless shaft system and subcontracted the | ¡.refrigeration work to Paul Dumstorf (“Dumstorf’) of Maritime System’s Inc. (“Maritime”).

Before beginning work on the APPARITION, Harkins signed a “work order” to authorize the requested repairs and improvements. Mayer had used this same work order for decades, and Mr. Harkins would have received it at least eight or nine times. The front of Mayer’s work order listed the work to be done, while the back listed twenty-one (21) “terms and conditions,” including the following:

1. This work order is subject to the following terms and conditions which shall constitute the entire contract between Mayer Yacht, Inc., * * * and the vessel described and its owners,
2. Mayer Yacht Services agrees to repair said vessel in a good and workmanlike manner pursuant to the terms as outlined, and the Owner and/or vessel agrees to pay mayer (sic) for said work, labor and materials as hereinafter stated. * * * IT IS UNDERSTOOD AND AGREED THAT OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, MAYER YACHT SERVICES MAKES NO WARRANTIES EXPRESSED OR IMPLIED, WITH RESPECT TO MAYER’S WORKMANSHIP OR MATERIALS FURNISHED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE; NOR DOES MAYER ASSUME NOR DOES IT AUTHORIZE ANYONE ELSE TO ASSUME ON ITS BEHALF, ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE SALE OR INSTALLATION OF EQUIPMENT MADE OR MANUFACTURED BY AN ENTITY OTHER THAN MAYER; WITH RESPECT TO SUCH EQUIPMENT, THE WARRANTIES AGAINST DEFECT IN MATERIAL AND WORKMANSHIP BY THE BUILDER AND/OR MANUFACTURER OF SUCH EQUIPMENT, ARE THE SOLE WARRANTIES, EXPRESSED AND/OR IMPLIED, PERTAINING TO RTHE SALE AND/OR INSTALLATION OF SUCH EQUIPMENT.
3. MAYER WARRANTS THE MATERIALS (WITH THE EXCEPTION OF EQUIPMENT MANUFACTURED BY OTHERS AS AFORESAID) AND WORKMANSHIP TO BE FREE OF DEFECT FOR A PERIOD OF SIXTY (60) DAYS AFTER COMPLETION OF SAID WORK AND MAYER’S LIABILITY IN CASE OF DEFECTIVE WORKMANSHIP OR MATERIALS SHALL BE LIMITED STRICTLY TO THE PROPER REPLACEMENT THEREOF, IN NO EVENT SHALL MAYER BE LIABLE FOR CONSEQUENTIAL DAMAGES ARISING FROM DEFECTIVE MATERIALS OR WORKMANSHIP, OR STEMMING FROM A BREACH OF WARRANTY, EXPRESSED OR IMPLIED, WITH RESPECT TO EQUIPMENT MANUFACTURED • BY OTHERS, WHICH IS INSTALLED
7. No claim for damages for negligence or otherwise, or for defective workmanship or material, shall be valid, and Mayer shall be discharged from all such liabilities therefore, unless such claim is made to Mayer in writing within sixty (60) days after delivery of vessel or completion of the work, whichever first occurs.
8. Mayer shall be liable for any loss or injury to the vessel caused by its willful or negligent failure to exercise reasonable care but Mayer shall not be responsible for damage to said vessel while in the possession of Mayer; * * *. The owner must give written notice to Mayer of any claim for loss or damages within 15 days after the loss or damage becomes known or reasonably should have become known.

The APPARITION was then left with Mayer for the requested repairs. After they were completed in mid to late January 2000, it was sailed from the New Orleans repair yard to Harkins’ home in Sli-dell without leaks. Almost immediately Harkins noticed the refrigeration unit was not working properly so he called to inform Mayer, since he was concerned it had not been fixed properly. On ^February 3, 2000, he formally reported the problem in writing. Harkins also testified that his new paint job had been dulled and white streaks were now present on his deck. Mayer sent employees to Harkins home to repair the damage to the paint, but, the employees worsened the damage by applying a bleaching and abrasive cleaning solution. Neither Mr. Dumstorf or Mayer ever addressed the refrigeration problem.

On or about July 5, 2000, Harkins sailed the APPARITION to Pensacola, Florida for its first extended voyage since the repair work. While off the coast of Pensacola, the vessel became grounded on a sand bar. Harkins reversed the engine at high revolutions per minute to disengage the boat from the sand bar. Shortly thereafter, he noticed the engine was not operating properly, so he lifted floorboards to look into the engine compartment to discover it, battery boxes and the hold area filled with about two feet of water. However, Harkins managed to safely navigate to Pensacola.

Harkins contacted Mayer later that day and related that there were no set screws in the dripless shaft unit. Harkins installed four (4) set screws and has experienced no problems with the dripless shaft system.

Harkins left the APPARITION at the Pensacola Marine Shipyard Complex (“PMSC”). While at the PMSC, based upon the advice of a refrigeration repairman in Pensacola, Harkins paid for a completely new refrigeration system.

Harkins contacted Mayer again upon returning from Pensacola and made demand for compensation for the damage allegedly caused by substandard workmanship, but no resolution was achieved.

| PROCEDURAL HISTORY

On April 6, 2001, Harkins filed this suit for the damages caused by Mayer Yacht’s and Maritime’s alleged defective workmanship.

Mayer Yacht and Maritime filed an Answer and Reconventional Demand asserting several contractual defenses and alleging that Harkins still owed money for the repair work to his boat.

On October 21, 2004, the Civil District Court conducted a trial. On December 10, 2004, Judgment was rendered in favor of Harkins in the amount of $44,088.28 ($11,-392.21 for the costs associated with repairing and replacing the boat’s damaged parts and interior; $1,700.00 for the dockage fees; $10,876.85 for the new refrigeration unit; and $20,119.22 for a new paint job). Mayer Yacht’s claim for unpaid money for repairs was dismissed. On January 31, 2005, the defendants suspensively appealed the Judgment.

ASSIGNMENTS OF ERROR:

They have assigned six errors on the part of the trial court. First, it is alleged that the court committed error in not applying the exculpatory warranty limitation period contained in the work order. Secondly, they contend the court below erred in finding that Mayer and/or Maritime breached any warranties as to the refrigeration system. Third, they contend the trial court awarded plaintiffs’ damages for betterment of the refrigeration system. The fourth assignment avers the trial court erroneously admitted into evidence an estimate from Schubert’s Marine to repaint the APPARITION. The fifth assignment claims that excessive damages were awarded to plaintiffs for paint repairs. The final assignment asserts error in denying Mayer recovery on its unpaid invoices.

\ DISCUSSION:

On appeal Mayer argues that maritime law applies and thus, the contractual exculpatory clauses contained in the work order are triggered, negating any liability of Mayer or its subcontractor. Mayer also argues that because the trial court proceeded based upon a breach of contract theory and since it did not find gross negligence, an exception to the exculpatory clause under the general maritime law, it should not be liable.

La Esperanza de Puerto Rico v. Perez y Compañia de Puerto Rico, Inc., 124 F.3d 10 (1st Cir.1997), stands for the proposition that a contract to repair a vessel is a maritime contract to which the general maritime law of the United States is applicable. Numerous cases have held that boat repair agreements are maritime contracts to which admiralty law is applicable. (E.g., United New York Sandy Hook Pilots Ass’n. v. Rodermond Indus. (3d Cir.1968) 394 F.2d 65, 71; Booth Steamship Co. v. Meier & Oelhaf Co. (2d Cir.1958) 262 F.2d 310, 312; Hall-Scott Motor Car Co. v. Universal Ins. Co. (9th Cir.1941), 122 F.2d 531, 534; Standard Oil Co. v. Intrepid, Inc. (1972) 26 Cal.App.3d 135, 139,102 Cal.Rptr. 604.)

We note that exculpatory agreements for ship accidents are ordinarily maritime in character, although some courts go further in inquiring whether the contract was local “in the sense that the application of state law would not disturb the uniformity of maritime law.” Kossick v. United Fruit Co. (1961) 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 81 S.Ct. at p. 891. Nevertheless, courts have rejected the view that a slight or marginal maritime interest automatically displaces a local interest if pressing and significant.

There is a long history of admiralty courts regulating the liability of boat repair and service contractors, and the rights of boat owners to recover for injury 17and to be indemnified for loss. (E.g., Italia Soc. v. Ore. Stevedoring Co. (1964) 376 U.S. 315, 318, 84 S.Ct. 748, 750,11 L.Ed.2d 732 et seq.; Ryan Stevedoring Co. v. Pan-Atlantic SS Corp. (1956), 350 U.S. 124, 132, 76 S.Ct. 232, 236, 100 L.Ed. 133 et seq.; United New York Sandy Hook Pilots Ass’n v. Rodermond Indus., supra, 394 F.2d 65, 70-72.) Similarly, admiralty courts have in numerous cases considered the validity and effect to be given to exculpatory clauses like that before us. It does not appear that Louisiana’s policy in the personal injury área against agreements exonerating a party for his own negligence is so overwhelming as to compel disregard of admiralty law.

It must be concluded that admiralty law in general governs the validity and interpretation of ship repair contracts, including exculpatory clauses. To conclude generally that all such contracts are maritime but local would in effect be contrary to the numerous cases applying admiralty law.

Even though we recognize that some courts’ analysis have allowed the causes of action for factual scenarios similar to the paint job and the air conditioning issues here to fall under state law because these jobs were performed on land and the damage was recognized while on land, such findings are the exception and not the rule. Therefore, because the damage suffered due to failure to install the set screws occurred while located on navigable waterways, we find Harkins’ contract with Mayer to repair this yacht falls under general maritime law.

Under admiralty law contractors who undertake to work on boats warrant by implication that they will perform services in a workmanlike manner, with reasonable safety to persons and property. While negligence also may give rise to pliability, the implied warranty of workmanlike performance may give rise to liability even where the contractor is not negligent. And the shipowner’s negligence or the unseaworthiness of his ship are not necessarily fatal to his claims. Italia Soc. v. Ore. Stevedoring Co., supra, 376 U.S. 315, 319-320, 84 S.Ct. 748, 751, 11 L.Ed.2d 732; United New York Sandy Hook Pilots Ass’n v. Rodermond Indus., supra, 394 F.2d 65, 71; Standard Oil Co. v. Intrepid, Inc. (1972), 26 Cal.App.3d 135, 139, 102 CaLRptr. 604. “[T]he duty of workmanlike performance is, in effect, a form of strict liability which is imposed upon the contractor by law in case he breaches the implied term of the contract.” Standard Oil Co. v. Intrepid, Inc., supra, 26 Cal.App.3d 135, 139, 102 Cal.Rptr. 604.

Exculpatory contracts of ship repairmen have been upheld in general maritime law based upon the theory of freedom to contract. Sun Oil Co. v. Dalzell Towing Co. (1932) 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311. Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911, is a case in which an exculpatory clause was not enforced in maritime law, but this was a towage case, and subsequent cases have held that an exculpatory clause in a towage case is not automatically invalid. The rule of Bisso arose in a situation where the towboat owners, like common carriers or public service providers, had unequal bargaining power to insert such exculpatory clauses absolving them from liability.

Unlike the tow cases, there is no history of cases invalidating exculpatory clauses in ship repair contracts, and ship repairers do not ordinarily have monopoly power in a port as sometimes occurs as to tow boat companies. There is nothing in the record that indicates that the parties had unequal bargaining power, and we are ^satisfied that under admiralty law they were free to include in their agreement a provision apportioning the risk of loss, including the risk due to their negligence.

While an exculpatory clause freeing the ship repairer from liability for his negligence may not be contrary to public policy and invalid, the question remains whether the instant agreement is such a contract. The rationale for permitting a party to disclaim responsibility for his own negligence is that parties to an agreement having substantially equal bargaining power may bargain over which is to bear the risk of loss and set the price accordingly, thus achieving a more rational distribution of the risk than the law would otherwise allow. “The rationale presupposes that the contracting parties have in fact considered the relative costs of insuring against negligent design and manufacture and have incorporated their conclusions into the contract.” JIG The Third Corp. v. Puritan Mar. Ins. Under. Corp. (5th Cir.1975), 519 F.2d 171, 176-178. For this reason, unless the intention is unequivocally expressed in the plainest of words, the law will consider that the parties did not undertake to protect a party against its own negligence.

Here, the work order does state that “MAYER YACHT SERVICES MAKES NO WARRANTIES EXPRESSED OR IMPLIED ... ”, nevertheless such language is listed amidst twenty-one (21) other such provisions. As itemized above the seventh and eighth provisions make similar exculpatory statements after sixty (60) and fifteen (15) days respectively have passed without written notice of a claim. Federal jurisprudence does not specify any sacramental language as to what is sufficient to be a clear and unequivocal absolution of liability. As long as the language appears to go beyond describing the scope of the loss and reflects the physical and legal responsibility, it is sufficient. United States v. Seckinger (5th Cir.1969), 408 F.2d 146, 150 et seq.; Batsortr-Cook Company v. Industrial Steel Erectors (5th Cir.1958), 257 F.2d 410, 412-414. Our review of the case law and this work order, does not lead us to conclude that there was a flaw in the contractual language as concerns the exculpatory clause.

A recent federal case gave new insight into the enforceability of an exculpatory clause, or red lettér clause, asserted by a marina defendant, stating:

... it is necessary to examine whether public policy supports restricting such absolution of all liability for the marina’s own negligence and outweighs the liberty to contract. Exculpatory clauses are not per se unlawful, and may be enforced in appropriate circumstances based on “the consideration that businessmen can bargain over which party is to bear the risk of damage and set the price accordingly, thus achieving a more rational distribution of the risk and allocation of price than the law would otherwise allow.” Sander, 334 F.3d at 717 (quoting La Esperanza, 124 F.3d at 19). In weighing competing public policy considerations, there is general agreement among the circuits that the following three factors are relevant in determining whether to enforce an exculpatory clause in a marine contract: (a) the nature of services covered by the contract; (b) whether the exculpatory clause is being applied to intentional, reckless, or grossly negligent behavior or rather to ordinary negligence; and (c) whether the exculpatory provisions were obtained through overreaching. See Sander, 334 F.3d at 717, Royal Ins. Co. of America v. Southwest Marine, 194 F.3d 1009, 1014 (9th Cir.1999), La Esperanza, 124 F.3d at 19, Edward Leasing, 785 F.2d at 889.

Dominici v. Between the Bridges Marina, 375 F.Supp.2d 62, 66.

At trial Mr. Harkins testified that while the APPARITION was still with Mayer Yacht, Mr. Mayer had showed him the new dripless shaft system and informed him that installation was incomplete as his trained installer, Ralph Blackmon, had not yet installed the set screws. Mr. Harkins testified that the rubber bellow that connects to the “0” ring, or dripless gland donut, was hard to move and that is why he could have 35 hours of engine run time without a leak. InHe offered this as justification as to why the seal of the dripless shaft system held up until the time he had to run the engine at higher revolutions per minute which in turn makes the propeller shaft vibrate more and thus caused the bellows to loosen allowing the seal to break and water to enter the hull. Harkins introduced product information that explained the role of the set screws and where they attach in order to maintain the seal even with greater vibration in the propeller shaft.

Mr. Mayer testified that the dripless shaft systems like this one came into the market around the mid-1990s. He also testified that he had an employee, Ralph Blackmon, whom he oversaw, work on the APPARITION’S dripless shaft system. Around the time of the work on the APPARITION Blackmon had taken time off due to difficulties in his personal life. Nevertheless, he testified that Mr. Black-mon did not have alcohol and drug problems at the time he worked on the APPARITION. Mr. Mayer further stated that the test of the seal would have been conducted at the dock, while running the engines not at high RPM.

Mr. Mayer in prior deposition testimony had stated that he believed there were only two set screws required initially by the manufacturer. At trial Mr. Mayer stated that the reason why four set screws were required by the manufacturer was for double protection, i.e., two set screws to lock in the two set screws that held the dripless gland donut compressed by the bellows. Otherwise, if the set screws are not in to hold the compression donut in place, the donut will loosen itself from the bellows and the device will leak. Mr. Mayer also testified that he could think of no way that the APPARITION could have made it to Pensacola or much less to Sli-dell without at least two set screws being in place, because he would think that the bellows would back out rather quickly creating a leak even at 1200 RPM, much less high RPM. Mr. Mayer could give only one 11P,example of set screws backing out, but that was not on this new technology PSS dripless shaft system. Furthermore, Mr. Mayer stated that when Mr. Harkins ran aground and took on water, there would have been much excitement while working the bilge pump and bailing water out in buckets, that two set screws could easily have been pumped or bailed out without anyone noticing. In other words, just because Mr. Harkins did not find set screws, does not mean they were not there.

General maritime law, tells us that “gross negligence” can be defined as “reckless and wanton misconduct.” Complaint of Merry Shipping, Inc., 650 F.2d 622, at 624-5, (5th Cir.1981) (quoting In re Marine Sulphur Queen, 460 F.2d 89, 105 (2nd Cir.), cert denied, 409 U.S. 982, 93 S.Ct. 318, 34 L.Ed.2d 246 (1972)). Using this definition of gross negligence and applying the second factor in the Dominici enforceability test for exculpatory clauses to the dripless shaft system failure, we find that failure to install the four set screws is grossly negligent behavior because it was a failure to follow the manufacturer’s instructions, and because of such conduct, the exculpatory clause cannot be enforced by Mayer.

In a maritime action in state court the procedural law of the forum governs. Jackson v. Northbank Towing Corp., 1998-1334 (LaApp. 3 Cir. 3/3/99), 742 So.2d 1; Bergeron v. Main Iron Works, Inc., 563 So.2d 954 (LaApp. 1 Cir.1990). Therefore, the trial court’s implication in its Reasons for Judgment that since Harkins did not plead negligence, it could not be found, was misleading. In Louisiana fact pleading is all that is required; no longer does Louisiana require pleading of the theory of the case. La. C.C.P. arts. 854 & 891; Trust for Schwegmann v. The Schwegmann Family Trust, 05-95 (La. App. 5 Cir. 5/31/05), 905 So.2d 1143; Fitzgerald v. Tucker, 98-2313 (La.6/29/99), 737 So.2d 706.

Instated in contractual terms, as opposed to tort, we concur with the trial court that failure to install the set screws, as stated in the installation instructions of the manufacturer of the dripless shaft system, is equivalent to breaching a term of the work order contract, namely, failure to install the dripless shaft system, as opposed to simply locating it around the shaft of the propeller, as the trial court found the preponderance of evidence in the record to show in this case. Therefore, we affirm the trial court’s award for damages due to the dripless shaft system failure.

REFRIGERATION UNIT & PAINT JOB

Insofar as the refrigeration and paint job are concerned, the issue of the exculpatory clause takes a different twist because Mr. Harkins notified, through telephone calls and in writing, Messrs. Mayer and Dumstorf immediately after taking possession of the APPARITION of problems with both. Defendants argue that the notice was not specific enough as concerns the refrigeration unit.

Harkins letter to Mayer dated February 3, 2000, mentioned the problems with the paint job and stated as concerns the refrigeration unit that:

. The fridge may still have water in the refrigerant lines as the valves are shutting the system down without it getting down to the temperature set by the thermostat.

In response to this letter, Mayer sent his employees out to Harkins’ home to fix the paint job. Nevertheless, there was testimony that the employees used “soft scrub” on the paint job which bleached the paint job and diminished some of the traction properties of the “grip awl” paint job.

The most significant issue with the paint job was that of quantum and whether Schubert’s paint job estimate was properly admitted into evidence. The trial court ruled that Schubert’s paint job estimate for the yacht of $20,119.22, [14would be admissible, but excluded a witness, Mr. John Brimer, from Schubert’s to identify it. Mr. Brimer’s name and the estimate had been added to the witness and exhibit list after the cut-off date. The net effect was Mr. Harkins identified it as being received from Schubert’s, but the defense did not have anyone to cross examine on how Schubert’s arrived its estimate.

In the record dated May 21, 2004, is the Pre-Trial Outline, in which plaintiffs’ list the estimate of damages to repair the paint on the APPARITION. Even though the original trial date was set for June 2004, trial of this matter was continued until October 2004. We note that we could not find a corresponding extension of discovery dates. Also, prior to trial and discussed in the record, there was a meeting in chambers in which this exhibit was mentioned and the trial judge understood that defense counsel was not concerned with the prejudice of the estimate — even though defense counsel thought the trial court had misunderstood him. Defendants did not file a motion in limine regarding Schubert’s paint estimate until two weeks before trial.

Defendants cite Perry v. Law, 311 So.2d 283 (LaApp. 1 Cir.1974) for the proposition that adherence to court rules is not discretionary. This case is easily distinguishable in that Perry dealt with a trial court setting a trial date during vacation time of the court without the consent of all parties. Our brethren issued a writ of prohibition ordering the trial date be set aside as it contravened the provisions of Rule 1, Section 3 of the Rules of the Twenty-first Judicial District Court. Here we are dealing with admission of evidence, as opposed to trial dates l^and we distinguish between a case management order pro hoc and a local rule of the court.

The issue of the paint job was clearly contested and defendants had notice back in May of this exhibit, and thus cannot argue prejudice. We note jurisprudence that a party may waive or be es-topped from making an objection to the admission or exclusion of evidence. That waiver may arise from failure to object, from an act done or omitted before evidence is offered, or from some affirmative act done after the court’s ruling on the evidence. Cross v. Cutter Biological, Div. Of Miles, Inc., 94-1477 (LaApp. 4 Cir. 5/29/96), 676 So.2d 131, at 139 (citing Combs v. Hartford Insr. Co., 544 So.2d 583, 585-86 (LaApp. 1 Cir.1989)). Here, defense counsel knew of the existence of this exhibit and plaintiffs intent to use it at trial. Defense counsel either made representations in chambers in the affirmative or omitted to do so, took no writs on this matter, and was possibly seeking some tactical advantage at trial. We find the trial court did not abuse its discretion by admitting the estimate.

Defendants argue that the award of a new paint job puts plaintiff in a better position than before. Nevertheless, there is evidence that the soft scrub removed some of the grip surface of the paint job and caused damage around the stanchions thus ruining more than just the appearance, impacting safety features and exposing the boat to undue wear and tear. Moreover, as concerns the factual findings of the trial court pertaining to the award for the paint job, we find no manifest error.

Two refrigeration repairmen who had worked on the APPARITION at different times testified at trial. Mr. Dumstorf, of Maritime Systems, Inc., and Mr. Robert “Bob” Barney testified that there was an improper design in the APPARITION’S refrigeration system. It was designed with two compressors, one |1(idriven by a 115 volt electrical generator and another driven by the engine. They were tied into and shared a common oil laden refrigerant line. Thus, when one compressor turned off and the other one was on, the other could not recover the oil it needed to operate, ultimately resulting in compressor failure. This type of system is now replaced with dual, not shared, systems because it ensures that each compressor has its own supply of oil in its own circuit. Mr. Dum-storf testified that he replaced the engine driven compressor and flushed out the sludge in the system, as well as placed a new filter with a desiccate pack to remove any residual moisture in the system. Mr. Harkins admitted that he had Mr. Barney replace a compressor about a year before the yacht was taken to Mayer in August of 1999. In sum, the APPARITION’S refrigeration system had an improper design that resulted in repeated compressor unit failures requiring replacement around three times in two years.

Mr. Barney testified that he had worked on the APPARITION’S refrigeration system a Couple of times and had replaced two compressors previously due to malfunction. Mr. Barney testified that when he inspected the system in July of 2000, the engine driven system was valved off, and that the generator driven compressor’s rod had broken. In his opinion it broke because oil had not been circulating with the refrigerant, and thus the friction caused it to break. Mr Barney testified and also stated in a letter that the APPARITION’S refrigeration system could have been fixed at a lower cost' by replacing the compressor, suction accumulator, evaporators and certain other parts, without buying and installing a new system as was done in Pensacola.

Don Clark in Pensacola installed a brand new refrigeration unit at a cost of $10,876.85. Mr. Harkins had paid Mr. Dumstorf about $3,600.00 to repair his 117refrigeration system. The trial court gave weight to the fact that Mr. Harkins had sought Mr. Dumstorfs expertise in correcting the refrigeration problem once, and if Mr. Dumstorf thought then that this system was irreparable, he should not have attempted to do the job, but rather should have recommended a new unit.

In maritime law, damages are not recoverable for betterment of the thing repaired. Petro United Terminals, v. J.O. Odfjell Chem. Carriers, 756 F.Supp. 269 (E.D.La.1991); Freeport Sulphur Co. v. The Hermosa, 526 F.2d 300 (5th Cir.1976). Here, the award of a new refrigeration system is clearly better than the repair of the old one. Mr. Barney testified and listed several components that could have been replaced, that would have returned Mr. Harkins system to its original condition. Using the estimate from Don’s Marine Services, the basis for the award of $10,876.85 for the new system, and adding only the essential components based upon that estimate plus the 7.5% Florida sales tax, we arrive at the reduced award of $4,229.00.

UNPAID BILLISETOFF

On September 9, 2004, Mr. Harkins paid Mayer five thousand ($5,000.00) dollars; later he made a payment of nine thousand dollars ($9,000.00) dollars. Then another invoice was generated, and he paid six thousand. The record reveals there were ongoing negotiations about the bill, and Mr. Harkins testified that Mr. Mayer told him to pay him what he thought was fair. At that point, Mr. Harkins issued a check for around seven thousand ($7,000.00) dollars. Mr. Mayer testified that in all Mr. Harkins paid about twenty-four thousand ($24,000.00) dollars on a thirty-five thousand ($35,000.00) dollar bill, which was less than what the job cost him.

11sPlaintiff made much of deposition testimony of Mr. Mayer about collecting from Mr. Harkins. Mr. Mayer testified at trial that he did not think it economically justifiable and astute business practice to hire attorneys and incur fees to collect an eleven thousand dollar bill. This does not imply that there was a meeting of the minds that the account was fully paid and satisfied. Moreover, La. C.C. art. 3071, treating Transaction and Compromise, states that such a compromise must be reduced to writing or recited in open court.

The Mayer Work Order Terms and Conditions, paragraph 2, states that “in the event that specific prices are not quoted, it is understood and agreed that all work is to be performed by Mayer Yacht Services usual and customary time and material charge.” We have reviewed the checks that Mr. Harkins paid Mayer, and nowhere does it state “full payment” or “in full accord and satisfaction,” considering the testimony in the record, we find the trial court was manifestly erroneous to dismiss the reconventional demand. We reverse the trial court on this issue and award Mayer the eleven thousand four hundred thirty-four dollars and twenty seven cents ($11,434.27) with legal interest from the date of judicial demand. CONCLUSION

Therefore, for the aforementioned reasons, we affirm the trial court’s award of $20,119.22 for the paint job, affirm its denial of non-pecuniary damages, affirm the award of $11,392.21 due to the dripless shaft system failure, amend and reduce the award for refrigeration damages to $4,229.00, affirm the award of $1,700.00 for dock fees, affirm the denial of attorneys’ fees and costs, affirm the denial of h Joss of use of vessel and emotional distress and amend the Judgment to award $11,434.27 to the defendant for unpaid bills.

AMENDED AND AFFIRMED AS AMENDED.

MURRAY, J., concurs in the result.

      .The U.S. flagged Document #918790 S/V APPARITION is a 1986 custom built, fiberglass hull schooner, with an inboard 80 horsepower Ford/Sabre engine, 62 feet in length, 15.4 feet in breadth, and 8 feet in depth.

      . Mr. Mayer is a 50% owner of Maritime Systems, Inc.

      . Mr. Harkins had worked in the boat industry before in Tampa, Fl., and owned this yacht for years, thus he is an informed maritime consumer.

      . Fahey v. Gledhill, 33 Cal.3d 884, 191 Cal. Rptr. 639, 663 P.2d 197 (1983), notes a scholarly distinction between commercial vessels and pleasurecraft, such distinctions have been rejected in federal court precedent.

      . There was testimony in the record that the painting of this same boat had been accomplished a couple of years prior, and the job cost around $6,000.00, as opposed to this pretrial estimate of $20,119.22.


author: PER CURIAM.

text:
    J. Robert WOOLEY, as Acting Commissioner of Insurance for the State of Louisiana v. AMCARE HEALTH PLANS OF LOUISIANA, INC.
    Nos. 2006 CA 1146, 2006 CA 1147, 2006 CA 1148, 2006 CA 1149, 2006 CA 1150, 2006 CA 1151, 2006 CA 1152, 2006 CA 1153, 2006 CA 1154.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 17, 2007.

      Joseph E. Cullens, Jr., Baton Rouge, Guy M. Hohmann, Austin, TX, Kimberly S. Morgan, Edward J. Walters, Jr., Baton Rouge, Sue Buser, Gonzales, Jonathan C. Augustine, Baton Rouge, Counsel for Plaintiff — Appellee J. Robert Wooley, as Acting Commissioner of Insurance and Liquidator of AmCare Health Plans of Louisiana, Inc.
    James C. Percy, David M. Kerth, Baton Rouge, Robert B. Bieck, Jr., New Orleans, Counsel for Defendant — Appellant Health Net, Inc.
    Joseph J. McKernan, Baton Rouge, Counsel for Plaintiff — Appellee Jean Johnson as Texas Special Deputy Receiver.
    David M. Latham, Keary L. Everitt, New Orleans, Counsel for Plaintiff — Ap-pellee Louisiana Department of Insurance.
    Gary P. Koederitz, Baton Rouge, Counsel for Defendant — Appellee BestCare, Inc.
    Wendell Clark, Baton Rouge, Counsel for Defendant — Appellee Thomas S. Luck-singer, Michael D. Nadler and Stephen J. Nazarenus.
    Claude F. Reynaud, Jr., Baton Rouge, Counsel for Defendant — Appellee Pros-kauer Rose, L.L.P. and Stuart L. Rosow.
    Harry J. Philips, Jr., Baton Rouge, Counsel for Defendant — Appellee William Galtney, Jr. and Michael K. Jhin.
    Mary Olive Pierson, V. Thomas Clark, Jr., Baton Rouge, Counsel for Defendant— Appellee PriceWaterhouseCoopers, L.L.C.
    Robert J. Burns, Jr., Baton Rouge, David H. Topol, Washington, D.C., Counsel for Defendant — Appellee Greenwich Insurance Company.
    George B. Hall, Jr., New Orleans, Mer-ril Hirsh, Washington, D.C., Kelsey Kor-nick Funes, Baton Rouge, Counsel for Defendant — Appellee Executive Risk Management and Executive Risk Specialty Ins. Co.
    David L. Guerry, Baton Rouge, Counsel for Defendant — Appellee Scott Westbrook.
    William C. Kaufman, III, Baton Rouge, Counsel for Defendant — Appellee M. Lee Pearce.
    Dominique J. Sam, Michael Charles Guy, Baton Rouge, Counsel for Amicus Curiae Charles C. Foti, Jr., Atty. Gen., On Behalf of the Commissioner of Insurance-Liquidator of AmCare Health Plans of Louisiana, Inc.
    Before: CIACCIO, LANIER, and CLAIBORNE, JJ.

      . The Honorable Philip C. Ciaccio, Judge (retired), the Honorable Walter I. Lanier, Jr., Judge (retired), and the Honorable Ian W. Claiborne, Judge (retired), are serving as judges ad hoc by special appointment of the Louisiana Supreme Court.

   PER CURIAM.

14These show cause rules were issued to determine whether subsequently rendered trial court judgments improperly substantively affected original judgments. For the following reasons, we grant the rules to show cause and dismiss these appeals, vacate the subsequent judgments and reinstate the trial court’s original judgments.

PROCEDURAL FACTS

These three consolidated actions (main demands) were filed by J. Robert Wooley, Commissioner of Insurance for the State of Louisiana, in his capacity as Liquidator for AmCare Health Plans of Louisiana, Inc., a Louisiana health maintenance organization (hereinafter referred to as the Louisiana HMO). Health Net, Inc. (hereinafter referred to as Health Net) was joined as one of many defendants. Kim Holland, Insurance Commissioner for the State of Oklahoma, in her capacity as Receiver for AmCare Health Plans of Oklahoma, Inc. (hereinafter referred to as the Oklahoma HMO) and Jean Johnson, Special Deputy Receiver of AmCare Health Plans of Texas, Inc. (hereinafter referred to as the Texas HMO) intervened in the actions as plaintiffs. All of the plaintiffs asserted causes of action in tort and contract and, among other things, sought punitive (exemplary) damages and attorneys’ fees under Texas law. It appears the claims against all defendants except Health Net were settled.

These consolidated cases were tried on June 17, June 20-24, and June 27-30, 2005, with additional evidence submitted to the court in July 2005. The Texas action was a jury trial and the Louisiana and Oklahoma actions were bench trials. Prior to the commencement of the trial, the trial court issued the following order:

IT IS HEREBY ORDERED that the Motion to Bifurcate the Trial of Attorneys’ Fees Either Through Stipulation of the Parties or Through Separate, Post-Verdict Presentation of [sic] the Jury and Request for Expedited Hearing filed herein by AmCare-OK, Am-Care-LA a,nd AmCare-TX is GRANTED .... (Emphasis added.)

| RThe record reflects that the jury verdict in the Texas case was returned on June 30, 2005. The jury found Health Net 85% at fault, “Any other Company” 15% at fault and awarded the Texas HMO $52,400,000.00 for compensatory damages.

The jury answered ‘Tes” to Interrogatory 7 that asked “Do you find by the preponderance of the evidence that defendant Health Net, Inc. knowingly engaged in any unfair or deceptive act or practice that was the proximate cause of damage to the Texas HMO, or its creditors? ” (Emphasis added.) This language tracks the operative language of V.A.T.S. Insurance Code art. 21.21, § 16 and establishes the factual basis for the liability of Health Net for “reasonable and necessary attorneys’ fees.” Neither the jury verdict nor the judgment memorializing the jury verdict fix an attorney fee.

The jury answered “Yes” to Interrogatory 9 that asked “Do you find by clear and convincing evidence that defendant Health Net, Inc. acted with malice or gross negligence regarding the rights of the Texas HMO or its creditors?” (Emphasis added.) This language tracks the operative language of V.A.T.S. Civil Practice and Remedies Code art. 41.003(a) and (b) and establishes the factual basis for the liability of Health Net for punitive damages. At a bifurcated trial whose purpose was to fix the quantum of the punitive damages, the jury assessed a sum of $65,000,000.00. In a subsequent Judgment Notwithstanding the Verdict (JNOV) the trial court reduced this award by 30%.

On November 4, 2005, the trial court rendered and signed essentially similar | (-judgments on the merits in favor of the Louisiana HMO and the Oklahoma HMO (hereinafter sometimes referred to as the' HMOs). The pertinent portions of these judgments provide as follows:

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff sustained its burden of proving by dear and convincing evidence that defendant Health Net, Inc. committed fraud that proximately caused damages to the Oklahoma HMO or its creditors;
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff sustained its burden of proving by a preponderance of the evidence that defendant Health Net, Inc. knowingly engaged in an unfair or deceptive act or practice that was the proximate cause of damage to the Oklahoma HMO or its creditors;
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff sustained its burden or proving by clear and convincing evidence that defendant Health Net, Inc. acted with malice or gross negligence regarding the rights of the Oklahoma HMO or its creditors; and
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that, given this Court’s finding that defendant Health Net, Inc. knowingly engaged in an unfair or deceptive act or practice that was the proximate cause of damage to the Oklahoma HMO or its creditors, plaintiff is entitled to an award of reasonable attorneys’ fees; the evidence supporting the award of attorneys’ fees and the determination of the amount of the attorneys’ fees award shall be made following a bifurcated trial to be held on the 21st day of November, 2005, at 9:30 a.m.;
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that plaintiff sustained its burden of proving by clear and convincing evidence that defendant Health Net, Inc. engaged in fraud, malice, and gross negligence, and this Court finds that defendant Health Net, Inc.’s conduct was sufficiently egregious to warrant an award of punitive damages; the evidence supporting the exact amount of the punitive damages award shall be made following a bifurcated trial to be held on the 21st day of November, 2005, at 9:30 a.m.;
IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that, given this Court’s finding that defendant Health Net, Inc. knowingly engaged in an unfair or deceptive act or \qpractice that was the proximate cause of damage to the Oklahoma HNO or its creditors, plaintiff is entitled to an award of either treble compensatory damages or, at its election, an award of punitive damages as determined following the bifurcated trial regarding the same [.] (Emphasis added.)

These judgments conclude with the proclamation that “there being no just reason for delay, this judgment shall constitute a final appealable judgment and is hereby accorded such designation.... ”

A review of these judgments shows that the trial court made specific factual rulings that tracked the operative language of the Texas statutes that provided liability for punitive damages and attorneys’ fees.

On November 21, 2005, the trial court convened “the bifurcated trial.” The first issue considered was the issue of attorneys’ fees. During the presentation of evidence, counsel for Health Net attempted to question a witness concerning “the basis, statutory or otherwise, for the award of these [attorneys’ fees and punitive damages] items of these [sic] damages.” The HMOs’ counsel objected and the court sustained the objection.

Health Net’s counsel then noted his intent to proffer this testimony, to which the trial court responded, “No. You’re not going to be able to do that today.... I thought this was going to [be] a simple bifurcated hearing, trial on two narrow issues but its obviously going to be more than that. And this is a very short week and you will have thirty days in accordance with the Code after this trial in which to engage a court reporter and do your proffer.”

Later during the questioning of another witness by Health Net’s counsel, the court interjected with the following: “[T]hat’s exactly what I did not want to get into, a legal debate about all these extraneous issues. These are very interesting and might be subject for a law review article, but this is merely an issue for the court to determine on the reasonableness of attorney fees, that we do this in about an hour every Monday, you know, and I don’t want to get too far into this.” | s(Emphasis added.) Counsel then continued, questioning the witness as to the hourly rates of attorneys involved in this and other litigation.

During this trial the HMOs presented evidence of the following: (1) the curriculum vitae of the attorneys; (2) a listing of all pleadings; (3) quarterly and annual financial statements that Health Net filed with the United States Securities and Exchange Commission; (4) law firm time sheets; (5) law firm attorney rate schedules; (6) law firm billing invoices, and (7) expert testimony concerning the reasonableness of attorneys’ fees. This evidence generally tracks the language of Rule 1.5(a) of the Louisiana Rules of Professional Conduct which provides as follows:

(а) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include'the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(б) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.

No evidence relevant to liability was presented.

IflAt the end of the day on November 21, 2005, the trial court recessed the proceedings between the examination and cross-examination of a witness for the HMOs.

When the proceedings resumed on November 22, 2005, Health Net’s counsel informed the court it did not intend to cross examine the witness, and the HMOs’ counsel stated the “live testimony portion of the evidence” was concluded. Additional conversation between the court and counsels was had, and then the HMOs’ counsel asked of the court, “[T]o help us with scheduling and to get this matter before yon as quickly as possible, I would ask that you set some deadlines.” The HMOs’ counsel suggested “fifteen days to designate any witnesses or evidence and then an additional fifteen days, which would be thirty days, to complete all depositions and perhaps even by agreement we do this all, this is a judge matter, bifurcated trial, we can do it by depositions, we can do it by writing, and we simply submit it to the court along with post-trial memorandum within thirty days of today’s date.” Health Net’s counsel agreed in principle, contingent upon approval by Health Net. The court then scheduled a telephone conference for the following Monday, allowing each party an opportunity to confer with its client. At that point, the November 22, 2005 transcript ends.

The minute entries for the pertinent dates establish that on November 21, 2005, “evidence commenced on the Bifurcated Trial of this matter regarding Attorney Fees and Punitive Damages. Without completing introduction of evidence, this matter was laid over until Tuesday, November 22, 2005, at 9:30 a.m. for the introduction of additional evidence.” On November 22, 2005, the minute entry states, “The Trial of the bifurcated case as to Attorney Fees and Punitive Damages was resumed.... Whereupon, by Stipulation of counsel and with the consent of the Court, telephone conference was fixed for Monday, November 28, |in2005, at 9:15 a.m., at which time deadlines will be fixed for submission by either reassignment for hearing in Open Court or by way of Deposition.”

On December 6, 2005, the trial court signed a second judgment pertaining to the Louisiana HMO’s claim for attorneys’ fees which provided as follows:

IT IS HEREBY ORDERED ADJUDGED AND DECREED that the Plaintiff, J. Robert Wooley Commissioner of Insurance for the State of Louisiana, as Liquidator for Amcare Health Plans of Louisiana has failed to meet his burden to establish the awarding of attorneys fees pursuant to Texas Code Article 21.21 in conjunction with Louisiana Rules of Professional Conduct, Rule 1.5. (Emphasis added.)

On December 12, 2005, the trial court signed a second judgment that provided the same for the Oklahoma HMO’s claim for attorneys’ fees.

On December 20, 2005, the trial court signed a second judgment pertaining to the Louisiana and Oklahoma HMOs’ claims for punitive damages which provided as follows:

WHEN, after hearing the evidence and argument of counsel the Court being of the opinion that upon the facts and law, plaintiffs have shown no right to relief, grants judgment in accordance with CCP Art. 1672(B).
THEREFORE, IT IS HEREBY ORDERED ADJUDGED AND DECREED that there be judgment in favor of defendant and against plaintiffs involuntarily dismissing the claim for punitive damages, with prejudice. (Emphasis added.)

(These three judgments may sometimes be referred to collectively as the December judgments.)

The Louisiana and Oklahoma HMOs took these appeals.

CAUSE OF ACTIONS FOR PUNITIVE DAMAGES AND ATTORNEYS’ FEES

The Louisiana and Oklahoma HMOs are asserting claims for punitive damages and attorneys’ fees as authorized by Texas law. Each of these claims is a separate cause of action that arises out of the facts pertinent to the causes of action asserted in the main and incidental demands. Cf. Cantrelle Fence & Swpply Co. v. Allstate Ins. Co., 515 So.2d 1074, 1078-79 (La.1987); Robin v. All State Ins. Co., 2002-0689, pp. 46 — 47 (La.App. 3 Cir. 2/5/03), 844 So.2d 41, 46-17, writ denied, 2003-1818 (La.10/17/03), 855 So.2d 763; Walker v. Stewards of Jefferson Downs Race Track, 615 So.2d 403, 404-05 (La. App. 4 Cir.1993); Lerma v. Champion Ins. Co., 597 So.2d 518, 520 (La.App. 1 Cir.1992). Because each of these claims is a separate cause of action, each may be tried separately from the primary causes of action and each may have bifurcated trials for liability and quantum. La. C.C.P. arts. 1562, 1631, 1632 and 1915; Emergency Physicians Ass’n v. Our Lady of the Lake Regional Med. Cent., 94-1268, p. 1 (La.9/16/94), 642 So.2d 179; Dugas v. Automotive Cas. Ins. Co., 98-0807, pp. 3-4 (La.App. 5 Cir. 2/10/99), 729 So.2d 25, 27-28.

Texas Law on Exemplary (Punitive) Damages

The Texas law providing for exemplary (punitive) damages is found in § 41.001 el seq. of Chapter 41 — Damages, of Subtitle C — Judgments, of Title 2 — Trial, Judgment, and Appeal, of the Civil Practice and Remedies Code of the V.A.T.S. The operative language for the recovery of exemplary damages is found in § 41.003(a) and (b) which provides,- in pertinent part, that “exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (S) gross negligence.” (Emphasis added.) In § 41.009 this law provides that the issues of liability and quantum shall be decided in bifurcated trials.

Pursuant to Louisiana. Civil Code article 3546, punitive damages may be awarded in a Louisiana court. Texas Law on Awarding Attorneys’ Fees

The Texas law providing for an award of attorneys’ fees is found in article 21.21— Unfair Competition and Unfair Practices of the V.A.T.S. Insurance Code. | ^The operative language for the recovery of an attorney fee is found in § 3 of article 21.21 entitled “Unfair Methods of Competition or Unfair -and Deceptive Acts of Practices Prohibited” which states that “(n)o person shall engage in this state in any trade practice which is defined in this Act, or determined pursuant to this Act to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.” (Emphasis added.) An illustrative list of definitions of what constitutes unfair methods of competition and unfair or deceptive acts or practices is found in § 4 of article 21.21; making any misrepresentation as to the financial condition of any insurer and making or filing false financial statements are proscribed therein.

Article 21.21, § 16 is entitled “Relief Available to Injured Parties”. Paragraph (a) thereof provides as follows:

Any person who has sustained actual damages caused by another’s engaging in an act or practice declared in Section 4 of this Article to be unfair methods of competition or unfair or deceptive acts or practices in the business of insurance or in any practice specifically enumerated in a subdivision of Section 17.16(b), Business & Commerce Code, as an unlawful deceptive trade practice may maintain an action against the person or persons engaging in such acts or practices. To maintain an action for a deceptive act or practice enumerated in Section 17.46(b), Business & Commerce Code, a person must show that the person has relied on the act or prac tice to the person’s detriment. (Emphasis added.)

Paragraph (b) of § 16 provides, in pertinent part, that “In a suit under this Section, any plaintiff who prevails may obtain: (1) the amount of actual damages plus court costs and reasonable and necessary attorneys’ fees. If the trier of fact finds that the defendant knowingly committed the acts complained of, the trier of fact may award not more than three times the amount of actual damages.... ” (Emphasis added.)

MODIFICATION OF A FINAL JUDGMENT

A judgment that determines the merits of a case in whole or in part is a final judgment. La. C.C.P. art. 1841. A final judgment may be rendered and signed by a |13court, even though it may not grant all of the relief prayed for, or may not adjudicate all of the issues in the case. La. C.C.P. art. 1915. Thus, the issues of liability on a cause of action and quantum (amount awarded), if there is liability, may be bifurcated and tried separately and the judgment on each issue will be a final judgment. La. C.C.P. art. 1915A(5).

Cosmetic Changes to a Final Judgment

Pursuant to Louisiana Code of Civil Procedure article 1951 a final judgment may be amended by a trial court at any time to (1) alter the phraseology of the judgment, but not its substance, or (2) correct errors of calculation. Such amendments are cosmetic and not substantive. Hebert v. Blue’s Auto & Truck Parts, 2000-2154 (La.App. 1 Cir. 12/28/01), 804 So.2d 953, writ denied, 2002-0272 (La.3/28/02), 812 So.2d 635. The December judgments did not correct errors of calculation. They did not alter the cosmetic phraseology of the November judgments. As will be hereinafter shown, they substantively reversed the November judgments.

The Punitive Damages Judgments

The specific November punitive damages judgments track the operative language of V.A.T.S. Civil Practice and Remedies Code § 41.003(a) and (b) by stating that the plaintiffs have sustained their burden of proving by clear and convincing evidence that the defendant committed fraud, malice and gross negligence that caused damage to them; this factually establishes liability for punitive damages. This language also substantially tracks the language of the trial court’s Interrogatory 9 which asked the Texas HMO jury if Health Net was liable for punitive damages. One of the November judgments specifically states that “this Court finds that defendant Health Net, Inc.’s conduct was sufficiently 114egregious to warrant an award of punitive damages” and that “the exact amount of the punitive damages award shall be made following a bifurcated trial.... ” (Emphasis added.) This language is clear and unambiguous.

These November judgments substantively decree the liability of Health Net for punitive damages.

In addition, the December 20, 2005 judgment states that it was granted “in accordance with CCP Art. 1672(B).” Louisiana Code of Civil Procedure article 1672(B) is entitled “Involuntary dismissal” and provides as follows:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence. (Emphasis added.)

Article 1672(B) provides, in pertinent part, that after a plaintiff rests any party may move for an involuntary dismissal on the ground that the plaintiff “has shown no right to relief.” The phrase any party does not include the court because the court is not a party to the action. Succession of Ratcliff v. Fruge, 99-0575, pp. 4-5 (La.App. 3 Cir. 12/8/99), 755 So.2d 918, 922; Koch v. Koch, 97-1600, p. 4 (La.App. 4 Cir. 4/22/98), 714 So.2d 63, 65; Williams v. Brooks, 96-1709, p. 3 (La.App. 3 Cir. 4/30/97), 693 So.2d 302, 304, writ denied, 97-1434 (La.9/19/97), 701 So.2d 175. The record on appeal does not reflect that any party moved for an Article 1672(B) dismissal nor does it reflect that a hearing was held on such a motion. The trial court committed error by granting such a dismissal on its own motion without conducting a hearing.

The December 20, 2005 judgment specifically states that “plaintiffs have [1sshown no right to relief’ for punitive damages. This is a substantive reversal of the November 4, 2005 judgments.

The Attorneys’ Fees Judgments

The specific November attorneys’ fees judgments track the operative language of Y.A.T.S. Insurance Code Art. 21.21 by stating that the plaintiffs sustained their burden of proving by a preponderance of the evidence that the defendant knowingly engaged in an unfair or deceptive act or practice that was the proximate cause of damage to them; this factually establishes liability for attorneys’ fees. This language also substantially tracks the language of the trial court’s Interrogatory 7 which asked the Texas HMO jury if Health Net was liable for attorneys’ fees. One of the judgments specifically states, in pertinent part, that “plaintiff is entitled to an award of reasonable attorneys’ fees.... ” This language is clear and unambiguous.

In a bench trial it is unnecessary to have a bifurcated trial on an attorneys’ fees issue. Further, presenting evidence of the value of the legal services rendered is not necessary if the services are evident from the record or were rendered under the supervision of the court. Hebert v. State Farm Ins. Co., 588 So.2d 1150, 1153 (La.App. 1 Cir.1991); Francis v. Travelers Ins. Co., 581 So.2d 1036, 1044 (La.App. 1 Cir.1991), writs denied, 588 So.2d 1114, 1121 (La.1991). See generally Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982),. See generally Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982), and Rule 1.5 of the Louisiana Rules of Professional Conduct. However, as previously indicated, the trial court entered a pre-trial order that apparently bifurcated the liability and quantum portions of the attorneys’ fees issue.

During the November 21-22, 2005 bifurcated trial, the Louisiana and Oklahoma HMOs presented extensive evidence concerning what would be reasonable attorneys’ fees. When the December 6 and 12, 2005 judgments were rendered, there was substantial evidence in the record upon which the trial judge 11ficould make a quantum award. Thus, it may reasonably be inferred that when the trial judge ruled that the Louisiana and Oklahoma HMOs “failed to meet his [sic] burden to establish the awarding of attorney fees[,]” she was referring to the liability judgment and not a quantum ruling. This is a substantive reversal of the November 4, 2005 judgments.

The Proper Procedure to Substantively Change a Final Judgment

Once the November judgments were rendered, they could be affected substantively in the trial court only by (1) a new trial, La. C.C.P. art.1971 et seq., or (2) an action for nullity, La. C.C.P. art.2001 et seq. Bourgeois v. Kost, 2002-2785, p. 5 (La.5/20/03), 846 So.2d 692, 696; Bonaventure v. Pourciau, 577 So.2d 742, 745 (La. App. 1 Cir.1991).

The record on appeal does not contain (1) pleadings for an action of nullity, (2) a motion and order for a new trial, or (3) a minute entry or transcript showing the trial of such an action or motion. La. C.C.P. arts.1971, 1975-1978. In brief the parties acknowledge that there was no motion or hearing for a new trial.

In Bourgeois, 2002-2785 at p. 5, 846 So.2d at 696, appears the following:

It is well settled under our jurisprudence that a judgment which has been signed cannot be altered, amended, or revised by the judge who rendered the same, except in the manner provided by law. The trial judge cannot on his own motion or on the motion of any party, change a judgment which has been so signed, notwithstanding it was signed in error. Without a specific statutory grant of authority, the trial court is limited to the general authorization for amending final judgments provided in Code of Civil Procedure Article 1951. As stated above, Article 1951 limits the amendment of judgments to the correction of errors in calculation and alteration of phraseology, but does not authorize a trial court to make substantive amendments to final judgments. Courts have uniformly held substantive amendments to judgments made without recourse to the proper procedures, i.e. by way of a timely motion for a new trial or by appeal, to be absolute nullities. (Emphasis added; citations omitted)

Because the November judgments have not been properly altered, amended or revised by a new trial or an action of nullity and because the December | ^judgments substantively reverse the pertinent November judgments, the December judgments are absolute nullities.

REMEDY FOR ABSOLUTE NULLITY In Bourgeois, 2002-2785 at p. 8, 846 So.2d at 696, the Louisiana Supreme Court vacated the absolutely null judgment and reinstated the original judgment. We do the same.

REMAND

In brief Health Net asserts because the bifurcated trials for punitive damages and attorneys’ fees were not completed, it was not given an “opportunity to present its case,” and, if the December judgments are reversed, “then the case must be remanded for completion of the bifurcated trial on those issues.”

In the interest of judicial economy, we decline to grant this request at this time. The issues of Health Net’s liability for punitive damages and attorneys’ fees are presently before this court in its appeals. Health Net may assign error in these rulings. If Health Net is successful, there will be no necessity for a remand on these issues. Should Health Net not prevail on one, or both, of these issues, there will be remands for trials to determine the appropriate quantum.

DECREE

For the foregoing reasons, the rule to show cause is granted and the appeals lodged with this Court bearing numbers 2006 CA 1146-1148, 2006 CA 1149-1151, and 2006 CA 1152-1155 are HEREBY DISMISSED; the December 6, 12 and 20, 2005 judgments of the trial court pertaining to the issues of liability for punitive damages and attorneys’ fees are vacated and the November 4, 2005 judgments pertaining to Health Net’s liability for punitive damages and attorneys’ fees are reinstated.

RULES TO SHOW CAUSE GRANTED; APPEALS DISMISSED; JUDGMENTS VACATED; ORIGINAL JUDGMENTS REINSTATED.

      . It appears that bifurcating the liability and quantum issues of a punitive damage cause of action is a well-established procedure in civil jury trials in the United States. Blatt, Ham-mesfahr and Nugent, Punitive Damages: A State by State Guide to Law and Practice, § 1.2, pp. 7-8, § 3.3, pp. 97-101 and 137 (Ed.2005). It would seem that such a bifurcated civil jury trial is required in Louisiana because the wealth of the defendant is not relevant evidence for that portion of the trial pertaining to the amount of compensatory damages whereas the wealth of the defendant is very relevant in determining the amount of punitive damages. Mosing v. Domas, 20020012, pp. 10-12 (La. 10/15/02), 830 So.2d 967, 911-19; Rodriguez v. Traylor, 468 So.2d 1186, 1187-88 (La.1985). See, for example, Bienvenu v. Dudley, 95-0547, p. 6 (La.App. 1 Cir. 10/3/96), 682 So.2d 281, 284, writs denied, 96-2661, 96-2673 (La. 12/13/96), 692 So.2d 1069, 1070.

      . As previously indicated, in the Texas HMO trial the jury answered, “Yes” and thereafter a bifurcated trial was held to fix the amount of punitive damages. These November judgments provide for the same procedure.

      . In its brief to this Court, Health Net asserts "Health Net has not had any opportunity to put on its case and has made no motion for involuntary dismissal.” It is doubtful that the Louisiana and Oklahoma HMOs would make such a motion to dismiss their own claims.